EN Official Journal of the European Union C 161/38

Appeal brought on 15 February 2018 by the European Commission against the judgment of the General Court (First Chamber) delivered on 5 December 2017 in Case T-728/16, Tuerck v Commission

(Case C-132/18 P)

(2018/C 161/42)

Language of the case: French

Parties

Appellant: European Commission (represented by: G. Gattinara, B. Mongin and L. Radu Bouyon, acting as Agents)

Other party to the proceedings: Sabine Tuerck

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (First Chamber) of 5 December 2017 in Case T-728/16, Tuerck v Commission;

— dismiss the action at first instance;

— order the respondent to pay the costs of the proceedings at first instance;

— order Ms Tuerck to pay the costs of the present proceedings.

Grounds of appeal and main arguments

With regard to the procedures for the transfer of pension rights accrued in a national scheme to the pension scheme of EU officials, as provided for by Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union, the first ground of appeal alleges failure on the part of the General Court to have regard for the case-law of the Court of Justice in Radek Časta (judgment of 5 December 2013, C-166/12, paragraphs 24, 28 and 31), according to which the operation of converting the capital value of pension rights acquired in the national system into pensionable years of service to be credited under the EU pension scheme is governed by EU law. That operation takes into account capital appreciation between the date of application and the effective date of transfer provided for by the Staff Regulations. The General Court erred in law in holding that the Commission did not have the power to deduct capital appreciation between the date on which the transfer application was registered and the date of the actual transfer of the capital. In finding that the Commission was not competent to carry out those deductions, the General Court failed to have regard for the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations, failed to recognise the competence conferred on the Commission by that article and erred in law.

The second ground of appeal alleges an error in law in holding that the deduction of capital appreciation could be carried out at a rate different to that provided for by the Staff Regulations and only on the basis of transferable capital. The deduction of capital appreciation must, however, be carried out in accordance with the Staff Regulations, which require maintenance of the actuarial balance and provide for the application of a rate of 3,1 % in order to achieve that. In addition, with reference to the ‘transferable’ amount, while Article 11(2) of Annex VIII to the Staff Regulations states that the transformation of the amounts representing the pension rights of the person concerned into pensionable years of service is to be carried out on the basis of the actual transfer, the General Court infringed that provision and failed to comply with its own appeal judgment of 13 October 2015 in Commission v Verile and Gjergji (T-104/14 P).

The third ground of appeal alleges an error in law in giving precedence to the general implementing provisions adopted by the Commission for implementing the Staff Regulations over the latter themselves, which are hierarchically superior to the former, and infringement of the obligation to state reasons. By the first part of the third ground of appeal, the Commission claims that the General Court interpreted the general implementing provisions in a manner that is contrary to the wording of the statutory provision that those GIPs are supposed to implement and contravened the principle that the Staff Regulations, as interpreted by the Court’s judgment in Radek Časta, do not allow amounts that do not actually represent pension rights to be converted into pensionable years of service. By the second part of the third ground of appeal, the Commission claims that the General Court infringed the obligation to state reasons by finding, on the basis of contradictory reasoning, that the national pension fund had shown capital appreciation between the date of application and that of the actual transfer.

The fourth ground of appeal alleges a manifest error of assessment and infringement of the obligation to state reasons on the part of the General Court in identifying unjust enrichment that does not exist. First, the General Court takes the view that there would be unjust enrichment if only one part of the transferred capital were converted into pensionable years, although the transfer is assessed at the date of the application to transfer and then follows the ‘notional’ fund system based on a capitalisation system. By the second part of the fourth ground of appeal, the Commission alleges infringement of the obligation to state reasons: the General Court found unjust enrichment without explaining how that conclusion could be justified in the light of the Commission’s argument that the amount exceeding the application of the 3,1 % rate had been reimbursed to the official concerned.