Case T‑128/17

Isabel Torné

v

European Commission

(Civil service — Officials — 2014 reform of the Staff Regulations — Leave on personal grounds — Conflicting engagement as a temporary staff member — Transitional measures relating to certain methods for calculating pension rights — Request for an advance decision — Acts adversely affecting an official — Purpose of transitional measures — Scope ratione personae — Entry into service)

Summary — Judgment of the General Court (Third Chamber), 14 December 2018

Acts of the institutions — Temporal application — Immediate application of the new rule to the future effects of a situation which arose under the old rule — Adoption of new provisions of Article 77 of the Staff Regulations introduced by Regulation No 1023/2013 — Application to pension rights corresponding to the work performed under the new rules and to retirements after the entry into force of the new rules

Actions brought by officials — Acts adversely affecting an official — Definition — Note from the administration stating its position on the amendment of the annual rate of accrual of pension rights and retirement age of the interested person — Included

Only acts producing binding legal effects which directly and immediately affect the interested person’s legal situation, by significantly altering that situation, can be regarded as adversely affecting that person. Accordingly, a note stating a position on the amendment of the annual rate of accrual of pension rights and retirement age of the interested person, by fixing that person’s date of entry into service for the purposes of applying the transitional regime provided for by Regulation No 1023/2013 amending the Staff Regulations and the Conditions of Employment of Other Servants produces legal effects which immediately and definitively affect the interested person’s administrative situation, in that, by that decision, the institution excludes him or her from the transitional regime established by Articles 21 and 22 of Annex XIII to the Staff Regulations, by applying to him or to her the annual rate of acquisition of pension rights and the pensionable age as amended by the 2014 reform. It follows that such a note constitutes an act adversely affecting the applicant, within the meaning of Article 90(2) of the Staff Regulations, and cannot be regarded as merely containing information on the scope of the provisions of the Staff Regulations concerning pension rights and their method of calculation after the entry into force of the 2014 reform. (see paras 43-45, 48, 49, 52)

Any legislative amendment applies, in principle, to the future effects of situations originating under the repealed legislation, unless the legislator expressly provides otherwise. That is not the case for situations originating and becoming definitive under the previous legislation, that legislation having created acquired rights. Consequently, with regard to the scope ratione temporis of the new Article 77 of the Staff Regulations, as amended by Regulation No 1023/2013, the immediate application of that article cannot be contrary to the principles of legal certainty and non-retroactivity. The new Article 77 of the Staff Regulations affects neither pension rights acquired at the rate of 1.9% for service before 1 January 2014, namely, before its entry into force, nor the rights of officials and agents who applied to retire at the legal age of 63 and whose pensions were fixed before 1 January 2014 (Article 24a of Annex XIII to the Staff Regulations). Only situations not yet definitively constituted at the time of the entry into force of the 2014 reform, namely, pension rights corresponding to the work performed under the new rules introduced by the EU legislator as part of the 2014 reform as well as retirements after 1 January 2014 with regard to officials and agents not covered by a transitional regime are capable of falling within the scope of those new rules. (see paras 71-73)