OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 14 July 2022 ( 1 )

Case C‑366/21 P

Maxime Picard

v

European Commission

(Appeal – Civil service – Contract staff – Pension – Regulation (EU, Euratom) No 1023/2013 – Transitional measures relating to the annual rate of acquisition of pension rights and to the retirement age – Temporal application – Signature of a new contract as a member of the contractual staff – Act adversely affecting the appellant – Characterisation – Independent legal effects)

I. Introduction

1. By this appeal, Mr Maxime Picard seeks to have set aside the judgment of the General Court of the European Union of 24 March 2021, Picard v Commission (T‑769/16, EU:T:2021:153) (‘the judgment under appeal’), which dismissed his action for annulment, first, of the reply of 4 January 2016 drawn up by the manager of the Pensions sector of Unit 4 of the Office for the Administration and Payment of Individual Entitlements (‘the PMO’) stating that the appellant’s normal retirement age and annual rate of acquisition of pension rights had changed to 66 years and 1.8% respectively as from 1 June 2014, and, second, the decision of 25 July 2016 of the Director of Directorate E of the European Commission’s Directorate-General (DG) for Human Resources (‘DG Human Resources’), in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’), dismissing the complaint lodged by Mr Picard against the reply of 4 January 2016.

2. The present case provides the Court with the opportunity to address two issues.

3. In the first place, the Court will have to rule on the conditions for the temporal application of the transitional provisions applicable to the members of the contract staff of the European Union relating to the annual rate of acquisition of pension rights and to the retirement age provided for in Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union. ( 2 ) The solution adopted by the Court in that regard will have a significant impact on the pension scheme applicable to a non-negligible proportion of contract staff of the European Union.

4. In the second place, this case could allow the Court to clarify, in respect of the concept of an ‘act adversely affecting an individual’, at what point a member of staff of the European Union is entitled to challenge factors used as a basis for determining his or her pension rights.

II. Legal context

5. The following are relevant in the present case: – Articles 25, 77, 83, 90 and 91 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), as amended by Regulation No 1023/2013; – Article 21(2) and Article 22(1) of Annex XIII to the Staff Regulations, as amended by Regulation No 1023/2013; – Article 8, Article 86(2) and Article 109(1) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as amended by Regulation No 1023/2013; – Article 1(1) of the annex to the CEOS.

III. Background to the dispute

6. The background to the dispute is set out in paragraphs 1 to 25 of the judgment under appeal and can be summarised as follows.

7. Mr Picard was employed, with effect from 1 July 2008, by the Commission as a contract staff member assigned to Unit 5 of the PMO (‘the 2008 contract’). The appellant was classified in the first function group. That contract was renewed three times for a fixed term and, by decision of 3 May 2011, for an indefinite period.

8. On 16 May 2014, DG Human Resources offered the appellant a new contract as a contract staff member, which the appellant signed on the same day (‘the contract of 16 May 2014’). That contract, of indefinite duration, took effect on 1 June 2014, with the appellant being classified in the second function group.

9. Prior to the conclusion of that contract, the Staff Regulations and the CEOS were amended by Regulation No 1023/2013, the provisions of which that are relevant to the present case have been applicable since 1 January 2014.

10. Following the 2014 reform, the second paragraph of Article 77 of the Staff Regulations, applicable to contract staff by reference to Article 109(1) of the CEOS, sets at 1.8% the new annual rate of acquisition; the previous rate was 1.9%. In addition, the fifth paragraph of Article 77 of the Staff Regulations sets the retirement age at 66 years, compared with 63 years previously.

11. A transitional regime was, however, provided for in Annex XIII to the Staff Regulations. Thus, under the second paragraph of Article 21 of that annex, officials who entered the service between 1 May 2004 and 31 December 2013 continue to enjoy the 1.9% annual rate of acquisition. Furthermore, the second subparagraph of Article 22(1) of that annex provides that officials aged 35 years on 1 May 2014, ( 3 ) who entered the service before 1 January 2014, are to be entitled to a retirement pension at the age of 64 years and 8 months. Finally, Article 1(1) of the annex to the CEOS provides that those transitional provisions ‘shall apply by analogy to other servants employed on 31 December 2013’.

12. By email of 4 January 2016, the appellant, having doubts as to the implications that the 2014 reform might have regarding his position after signing the contract of 16 May 2014, asked the manager of the Pensions sector of Unit 4 of the PMO for clarifications (‘the email of 4 January 2016’).

13. By email of the same day, that manager informed the appellant that his pension rights had been modified as a result of the change of contract and that, therefore, as far as the appellant was concerned, the normal retirement age and the annual rate of acquisition of pension rights had changed to 66 years and 1.8% respectively as from 1 June 2014 (‘the reply of 4 January 2016’).

14. On 4 April 2016, the appellant made a formal complaint under Article 90(2) of the Staff Regulations against the reply of 4 January 2016.

15. By decision of 25 July 2016, communicated to the appellant on 26 July 2016, the Director of Directorate E of DG Human Resources, in his capacity as the AECE, dismissed the complaint, principally, as inadmissible in the absence of an act adversely affecting the appellant and, in the alternative, as unfounded (‘the rejection decision of 25 July 2016’).

IV. The procedure before the General Court

16. By application lodged at the Registry of the General Court on 7 November 2016, the applicant brought an action for annulment of the reply of 4 January 2016 and, if necessary, of the rejection decision of 25 July 2016. By separate document lodged at the General Court Registry on 6 February 2017, the Commission raised an objection of inadmissibility to that action.

17. By decision of 12 October 2017, the President of the Third Chamber of the General Court decided to stay the proceedings until the decision closing the proceedings in Case T‑128/17, Torné v Commission had acquired the force of res judicata.

18. Following the judgment of 14 December 2018, Torné v Commission, ( 4 ) and in the absence of an appeal against it, the parties submitted their observations on the consequences of that judgment for the present case within the period prescribed.

19. By order of 13 May 2019, in accordance with Article 130(7) of the Rules of Procedure, the General Court decided to reserve its decision on the objection of inadmissibility raised by the Commission and reserved the costs.

20. By the judgment under appeal, the General Court dismissed the action brought by the appellant.

21. The General Court decided to begin by examining the pleas in law relied on by the appellant, without ruling beforehand on the objection of inadmissibility raised by the Commission. In order to give its ruling in that regard, it relied on the case-law to the effect that the EU Courts are entitled to assess whether, according to the circumstances of each case, the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the objection of inadmissibility raised by the defendant. ( 5 )

22. On the substance, the General Court held that the Commission was right to take the view that the contract of 16 May 2014 meant that the appellant could not benefit from the application of the transitional provisions, laid down in Annex XIII to the Staff Regulations, concerning the annual rate of acquisition of pension rights and the retirement age.

23. In paragraphs 65 to 83 of the judgment under appeal, the General Court interpreted Article 1(1) of the annex to the CEOS as providing that the transitional rules laid down for officials in Articles 21 and 22 ( 6 ) of Annex XIII to the Staff Regulations ‘apply by analogy to other servants employed on 31 December 2013’.

24. The General Court held, inter alia, that it follows from the wording of that provision that Articles 21 and 22 of that annex apply to staff covered by the CEOS in so far as it is possible to draw an analogy between them and officials, taking into account the specific characteristics of each category of staff. After examining those characteristics, the General Court observed that whereas an official enters and remains in the service of the administration of the European Union by virtue of an act of appointment which remains unchanged for his or her entire career, a member of the contract staff enters and remains in service by virtue of a contract for as long as that contract has effect.

25. It is in the light of those considerations that the General Court interpreted the requirement of being ‘employed on 31 December 2013’, within the meaning of Article 1(1) of the annex to the CEOS.

26. In paragraph 81 of the judgment under appeal, the General Court held that the expression ‘by analogy’ in Article 1(1) of the annex to the CEOS assumes that the contract staff are in a position similar to that of officials. According to the General Court, that position can be established only if the contract staff member has not signed a new contract which involves the beginning of a new employment relationship with the EU administration. In that regard, it recalled that it had already held that an employment relationship between a contract staff member, on the one hand, and the administration of the European Union, on the other hand, may remain unchanged, even following the signing of a new contract formally distinct from the initial contract, provided that the latter contract does not make any substantial change to the duties of the member of staff, in particular to the function group, such as to call into question the functional continuity of his or her employment relationship with the administration of the European Union. ( 7 )

27. The General Court firstly concluded from the foregoing that Articles 21 and 22 of Annex XIII to the Staff Regulations apply only to other servants in service on 31 December 2013 and who remain in service after that date under a contract, until their position is examined for the purpose of calculating pension rights.

28. Next, in paragraphs 85 to 93 of the judgment under appeal, the General Court drew conclusions from those findings as regards the appellant’s situation. In particular, after examining the contracts concluded by the appellant with the Commission and the characteristics of the posts in which he was employed, the General Court found that the change of function group had called into question the functional continuity of the appellant’s working relationship with the EU administration. The General Court inferred from that fact that the contract of 16 May 2014 had entailed the termination of all the effects of the 2008 contract, on the basis of which the appellant was ‘employed on 31 December 2013’ in accordance with Article 1(1) of the annex to the CEOS and, consequently, a termination of his employment relationship with the EU administration. Thus, the General Court found that the contract of 16 May 2014 had given rise to a new entry into service for the purposes of the application of that provision, and therefore the applicant could not benefit from the application of the transitional provisions relating to the annual rate of acquisition of retirement pension rights and the retirement age.

29. Finally, the General Court stated that that conclusion cannot be called into question, inter alia, by the applicant’s argument that a new contract does not preclude the application of those transitional provisions, as long as that does not lead to discontinuity in membership of and contributions to the EU pension scheme. According to the General Court, the application of those provisions to staff members does not depend on the allegedly uninterrupted membership of the EU pension scheme, but depends on the functional continuity of the employment relationship, as is established in paragraph 81 of the judgment under appeal.

V. Forms of order sought by the parties

30. The appellant claims that the Court should: – set aside the judgment under appeal; – annul the reply of 4 January 2016 and, if necessary, the rejection decision of 25 July 2016; and – order the Commission to pay the costs at both instances.

31. The Commission contends that the Court should: – dismiss the appeal; and – order the appellant to pay the costs.

VI. The appeal

A. Admissibility of the appeal

1. Arguments of the parties

32. The Commission argues that the appeal is inadmissible because, contrary to Article 169(2) of the Rules of Procedure of the Court, the appellant does not identify precisely the paragraphs of the judgment which he contests.

33. The Commission observes that the appellant’s criticism of the judgment under appeal is that the General Court erred in law in considering, in paragraph 90 of that judgment, that the conclusion of a new contract had the effect that a contract staff member is no longer ‘employed’ on 31 December 2013 within the meaning of Article 1(1) of the annex to the CEOS. It infers from the foregoing that that reference to a single paragraph of the judgment under appeal does not satisfy the conditions laid down in Article 169(2) of the Rules of Procedure.

34. For his part, the applicant argues that he identified, in paragraphs 25 and 26 of his appeal, the error of law committed by the General Court in paragraph 81 of the judgment under appeal and that he contested the General Court’s interpretation of Article 1(1) of the annex to the CEOS.

2. Assessment

35. According to settled case-law of the Court of Justice, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must, if it is not to be found inadmissible, indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal. ( 8 )

36. I note that, in paragraph 24 et seq. of his appeal, the appellant argues that, in paragraph 81 of the judgment under appeal, the General Court erred in law in its interpretation of Article 1(1) of the annex to the CEOS by holding that the transitional provision can continue to apply to other servants only in so far as the latter do not conclude a new contract or, in concluding a new contract, they continue to perform substantially the same duties.

37. Furthermore, in the arguments in support of his appeal, the applicant contests the grounds contained in paragraph 90 of the judgment under appeal by which the General Court explicitly relied on the interpretation of the provisions of Article 1(1) of the annex to the CEOS made in paragraph 81 of that judgment to find that the contract of 16 May 2014 had entailed the termination of all the effects of the 2008 contract and, consequently, a termination of the employment relationship with the EU administration.

38. It follows from the foregoing that the appellant satisfied the requirements under Article 169(2) of the Rules of Procedure by stating with sufficient precision, first, the elements of the reasoning adopted by the General Court that he contests and, second, the error of law upon which he intends to rely in support of his appeal.

39. I therefore consider the appeal to be admissible.

B. The single ground of appeal

1. Arguments of the parties

40. In support of this ground of appeal, alleging an error of law in the interpretation of Article 1(1) of the annex to the CEOS, the appellant claims that the General Court misconstrued the scope of that provision by taking into account neither the objectives pursued by the EU legislature nor the system established by the Staff Regulations and the CEOS in the specific field of the EU pensions scheme. In that regard, the appellant submits that, as the General Court held in the judgment in Torné, the temporal application of the transitional provisions turns on the continued affiliation to the pension scheme and the continued payment of contributions to that scheme.

41. Furthermore, the appellant claims that, by finding that the contract entailed a termination of the employment relationship with the EU administration, the General Court disregarded the continuation of that relationship, as recognised in Article 86(2) of the CEOS, from the perspective of the progression of remuneration. Lastly, he observes that, in Article 1(1) of the annex to the CEOS, the EU legislature used the concept of ‘employed’ members of staff, whereas, in Articles 4 and 5 of the same annex, the words ‘current contracts’ were expressly used. The appellant infers from that fact that the legislature did not intend to restrict the scope of the transitional provisions to current contracts only.

42. For its part, the Commission contends that an analogy with the position of officials can be drawn only if the staff member does not sign a new contract which involves the beginning of a new employment relationship. It adds that the appellant cannot rely on the judgment in Torné to his advantage since that judgment concerned not the interpretation of the provisions of Article 1(1) of the annex to the CEOS but rather the conditions for the applicability of the provisions of Articles 21 and 22 of Annex XIII to the Staff Regulations to an official who remained in service solely on the basis of her initial act of appointment. In that regard, the Commission makes the point that the position of an official is not comparable with that of a member of contract staff, since that staff member remains in service for as long as the contract has effect. It observes that the General Court carried out a detailed factual analysis, from which it determined that there is no continuity between the contract concluded in 2008 and the contract of 16 May 2008.

43. The Commission also argues that the provisions of Article 86 of the CEOS, upon which the appellant relies, have no bearing on the interpretation of the words ‘employed on 31 December 2013’ used in Article 1(1) of the annex to the CEOS. Lastly, that institution takes the view that the difference in terminology between the latter provision and Articles 4 and 5 of the annex to the CEOS can be explained by the different subject matter of those provisions: the former concerns the application of the transitional measures, the latter relate to the renewal of contracts.

2. Assessment

(a) Preliminary observations

44. The amendments to the annual rate of acquisition of retirement pension rights and to the retirement age introduced by Regulation No 1023/2013 serve the objectives of maintaining the actuarial balance of the pension scheme and of taking into consideration changes in the demographic structure of the staff of the EU institutions. ( 9 ) That being the case, in Articles 21 and 22 of Annex XIII to the Staff Regulations, the EU legislature introduced, for officials who entered the service before 1 January 2014, a transitional scheme allowing them to continue to enjoy the rate of acquisition of retirement pension rights provided for in the earlier legislation and setting, on a graduated scale, the age at which an official is entitled to a retirement pension. Under Article 1(1) of the annex to the CEOS, ‘Article 21 [and] Article 22, with the exception of paragraph 4, … of that Annex shall apply by analogy to other servants employed on 31 December 2013’.

45. With a view to establishing the meaning and the scope of that analogy between officials and staff covered by the CEOS, the General Court examined the specific characteristics of each of those categories of staff. More specifically, it was held in the judgment under appeal, in essence, that whereas an official enters and remains in the service of the administration by virtue of a relationship based upon the Staff Regulations in the form of an act of appointment which remains unchanged until he or she leaves the service, a member of the contract staff enters and remains in service by virtue of a contractual relationship. Relying on that distinction, the General Court found that the transitional provisions apply by analogy to other servants employed on 31 December 2013 and who remain in service, after that date, either under a contract concluded beforehand or under a new contract where that agreement does not entail a break in the continuity of the duties performed by the member of staff.

46. In other words, the General Court decided that, in the case of members of the contract staff, the criterion relating to the substantial continuity of the duties determined the temporal application of the transitional provisions laid down in Regulation No 1023/2013.

47. It appears to me, however, that that interpretation, which is essentially based on the difference between the Staff Regulations and the Conditions of Employment of Other Servants, does not fully reflect the meaning and the scope of the provisions of Article 1(1) of the annex to the CEOS.

48. In that respect, I recall that, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part. ( 10 )

49. In that regard, I note that, as far as concerns the transitional provisions, the CEOS do not provide any definition of the word ‘employed’. In addition, the word ‘analogie’ (in English: ‘analogy’), ( 11 ) which is commonly defined in French as a ‘sorte de rapport, de ressemblance dans l’ordre physique, intellectuel ou moral qui existe à certains égards entre deux ou plusieurs choses différentes’ (in English: a kind of relationship/resemblance in physical, cognitive or moral terms existing in certain respects between two or more different things’), ( 12 ) is not, in itself, a sufficiently significant basis for the interpretation of the transitional provisions laid down in Article 1(1) of the annex to the CEOS.

50. It is therefore necessary to apply the methods of teleological and contextual interpretation in order to analyse those transitional provisions.

(b) Teleological interpretation

51. While the EU legislature did intend to modify the retirement pension scheme of officials and other members of staff, it wanted to combine that reform with complementary measures that take into account the pension rights previously acquired by staff. ( 13 ) That objective is explicitly stated in recital 29 of Regulation No 1023/2013, which reads as follows: ‘transitional arrangements should be laid down to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights and legitimate expectations of the staff employed before the entry into force of these amendments to the Staff Regulations’.

52. That recital is, in my view, a relevant factor in interpreting the transitional provisions laid down in Article 1(1) of the annex to the CEOS.

53. In that regard, I note, first of all, that, appearing after the presentation of all the amendments made to the Staff Regulations and to the CEOS by Regulation No 1023/2013, that recital quite clearly concerns all the transitional provisions laid down in that regulation, including those relating to retirement pensions. Next, I would observe that it follows from the use of the words ‘staff employed’, which are generic in nature, that, as far as concerns the objectives stated in the same recital, the EU legislature did not draw a distinction between officials and the other members of staff covered by the CEOS.

54. I infer from that fact that, like the provisions of Articles 21 and 22 of Annex XIII to the Staff Regulations, the provisions of Article 1(1) of the annex to the CEOS must be interpreted in the light of the objectives relating to respect for the rights acquired by and the legitimate expectations of the other servants of the European Union occupying a post prior to 1 January 2014. ( 14 )

55. Furthermore, while that approach does better capture the objectives pursued by the EU legislature, it cannot be separated from an analysis of the general scheme of the pension system of which the transitional provisions form part.

(c) Contextual interpretation

56. The benefits paid under the pension scheme are set out in Chapter 3 of Title V of the Staff Regulations and in Annex VIII thereto. Under those provisions, Article 83(1) of the Staff Regulations provides that benefits paid under the pension scheme are to be charged to the budget of the European Union and that Member States are jointly to guarantee payment of such benefits. Furthermore, Article 83a of and Annex XII to the Staff Regulations lay down the actuarial rules for calculation of the contribution rate that allows the balance of the pension scheme to be guaranteed.

57. The pension scheme for members of the contract staff is set out in Articles 109 and 110 of the CEOS. Thus, the first sentence of Article 109(1) of the CEOS provides: ‘on leaving the service, contract staff shall be entitled to a retirement pension, transfer of the actuarial equivalent or payment of a severance grant in accordance with Chapter 3 of Title V of … the Staff Regulations’.

58. It therefore follows from the very wording of those provisions that the pension scheme for officials and that for members of the contract staff are governed by common rules.

59. Schematically, the pension scheme, as defined in those provisions, is conceived as a notional fund with defined benefits, in which the contributions by members of staff are used to finance the future pensions of those staff members. Those contributions cover the cost of the pension rights acquired over a particular year and are in no way linked to the expenditure of that year devoted to the payment of pensions.

60. The operation of that fund is based on the principle of actuarial balance, in accordance with which the contributions from staff must, pursuant to Article 83(2) of the Staff Regulations, cover one third of the rights acquired over the year in question, which corresponds to the pensions payable to officials on their retirement. ( 15 ) The rate of the contributions paid by officials is subject to a regular assessment provided for in Annex XII to the Staff Regulations, which is intended to ensure that those contributions finance one third of the cost of the scheme. ( 16 )

61. It follows from the foregoing considerations that, in the case both of officials covered by the Staff Regulations and other members of staff covered by the CEOS, the retirement pension scheme for members of staff of the European Union is based on the payment by those staff members of an updated contribution, the effect of which is to grant pension rights for a particular year. In my view, the existence of such a common scheme, based on the payment of contributions, allows the word ‘analogy’ contained in Article 1(1) of the annex to the CEOS to be clarified.

62. In the light of the context of that article, I take the view that the application by analogy of Articles 21 and 22 of Annex XIII to the Staff Regulations cannot be linked to a condition relating to the finding of substantial continuity between the duties performed by a member of the contract staff. On the contrary, it appears to me that, as it must be viewed having regard to the contributory pension system organised by the EU legislature for officials and members of staff covered by the CEOS, the application of those articles must be based on a criterion of continued membership of the pension scheme.

63. I infer from that fact that, within the meaning of the transitional provisions laid down in Article 1(1) of the annex to the CEOS, a member of the contract staff must be regarded as having been ‘employed on 31 December 2013’ if he or she, having been recruited prior to that date, irrespective of the subsequent conclusion of a contract making substantial changes to his or her duties, has maintained his or her membership of the EU pension scheme and continued to pay contributions to that scheme.

64. I would add that that interpretation is the only one capable of reflecting the meaning and the scope of the provisions of Article 1(1) of the annex to the CEOS, since it allows a member of the contract staff to be placed in a position comparable to that of an official who, having entered the service prior to 1 January 2014 and continued to pay contributions to the pension scheme, can benefit from the transitional provisions laid down in Articles 21 and 22 of Annex XIII to the Staff Regulations. ( 17 )

65. Furthermore, the analysis that I propose that the Court adopt cannot successfully be called into question by the reference, made in paragraph 81 of the judgment under appeal, to the judgment in EMA v Drakeford. Indeed, as Mr Picard rightly points out, that judgment concerns the reclassification, as provided for in Article 8(1) of the CEOS, of successively concluded fixed-term contracts with temporary staff. In that scenario, the General Court relied on the criterion relating to the substantial continuity of the duties performed by a member of the temporary staff in order to determine whether, under the guise of the renewal of fixed-term contracts, the administration had not intended to fill a permanent position. That solution, which is based on the particular scheme of the provisions of Article 8(1) of the CEOS, appears to me to have no bearing on the interpretation of the transitional measures concerning retirement pensions laid down in Regulation No 1023/2013.

66. In the light of all those considerations, I am of the view that the General Court erred in law in dismissing the action for annulment of the reply of 4 January 2016 on the ground that the transitional provisions laid down in Article 1(1) of the annex to the CEOS apply by analogy to members of the contract staff employed on 31 December 2013 and who remain employed, after that date, under a contract that does not entail a break in the continuity of the employment relationship.

67. I therefore propose that the Court find that the single ground of appeal is well founded and, consequently, that it set aside the judgment under appeal.

VII. The action brought before the General Court

68. Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if an appeal is well founded and the Court of Justice quashes the decision of the General Court, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

69. In that regard, I recall that, before the General Court, the Commission raised an objection of inadmissibility to the action, alleging that there is no act adversely affecting the appellant within the meaning of Article 90 of the Staff Regulations. Relying on settled case-law of the Court of Justice, ( 18 ) the General Court decided that, in the interests of procedural economy, it was appropriate to examine the pleas in law relied on by the appellant from the outset, without first ruling on the objection of inadmissibility raised by the Commission, since the action was, in any event, unfounded. It follows from that fact that, in order to rule on the dispute in its entirety, the Court of Justice must first take a view on the objection of inadmissibility raised by the Commission and then, if necessary, examine the merits of the appellant’s application.

70. It would appear to me that the Court of Justice is in a position to adjudicate on all those points since, first, the agreed statement of facts needed for the decision appears to be complete and sufficient and, second, the elements of the dispute were the subject of adversarial debate before the General Court ( 19 ) and the Court of Justice. I would add that it is in the interest of the appellant, who brought the matter before the General Court on 7 November 2016, to obtain a judicial decision swiftly.

A. Admissibility of the action

1. Arguments of the parties

71. In support of its objection of inadmissibility, the Commission argues that the reply of 4 January 2016, made in the form of an email, cannot be regarded as an act adversely affecting the appellant since it is intended merely to provide the appellant with information about a provision of the Staff Regulations. In that regard, it observes that that reply comes with a disclaimer explaining that the message was for information purposes only. It adds that, since it was sent merely by a colleague of the appellant a very short time after the request, the reply of 4 January 2016 was not preceded by a preliminary study, which is essential for the adoption of an act adversely affecting an individual.

72. The Commission also submits that the provisions of the Staff Regulations on the rate of acquisition of retirement pension rights and on the retirement age will have no concrete effect until the date on which a member of staff retires. It takes the view that the appellant cannot require that certain elements of his pension rights are determined in advance, especially since those provisions can be amended up until the date of his retirement. The Commission infers from the foregoing that the only act capable of affecting Mr Picard adversely will be the final decision adopted upon his retirement.

73. In turn, Mr Picard contends that the administration was required to specify in advance the elements used to calculate his pension since those elements were already known and could no longer be amended when he made his request. He adds that the reply of 4 January 2016 immediately and directly affected his pension rights, and that he therefore had a legitimate expectation, an expectation which arose at that time and is current, to have an uncertain element relating to him determined by the courts.

74. The appellant also makes the point that, in the judgment in Torné, the General Court held that the provisions of the Staff Regulations must be interpreted as meaning that they implicitly require the institution concerned to adopt a decision immediately, without waiting for the termination of service of the individual concerned. He also observes that, in paragraph 49 of that judgment, the General Court decided that it was the contested note fixing the date of the applicant’s entry into service that had adversely affected her and not its application in order to calculate her pension rights upon their liquidation when she retires.

2. Assessment

75. It should be recalled, as agreed facts, that Mr Picard made a formal complaint on the basis of Article 90(2) of the Staff Regulations against the reply of 4 January 2016. The matter having been brought before him, the AECE, by decision of 25 July 2016 of the DG Human Resources, dismissed the complaint, principally, as inadmissible in the absence of an act adversely affecting the appellant and, in the alternative, as unfounded.

76. Before the General Court, Mr Picard brought an action for annulment of the reply of 4 January 2016 and, ‘if necessary’, the annulment of the rejection decision of 25 July 2016.

77. It follows from the provisions of Article 90(2) of the Staff Regulations that acts of institutions can be contested by an official only if they affect him adversely. Article 91(1) of the Staff Regulations provides, in essence, that the admissibility of appeals is also subject to the satisfaction of that condition. Furthermore, under Article 117 of the CEOS, the provisions on appeals laid down in the Staff Regulations, including those to which I have just referred, are to apply by analogy to members of the contract staff.

78. It follows from the foregoing that, in order to determine whether Mr Picard’s action is admissible, it is necessary to establish whether the reply of 4 January 2016 can be regarded as an act affecting him adversely within the meaning of the provisions cited above.

79. On that point, I would observe that, according to settled case-law of the Court of Justice, an applicant is adversely affected only by measures which produce binding legal effects such as to affect his or her interests by bringing about a distinct change in his or legal position, and only those measures may be the subject of an action for annulment. ( 20 ) Moreover, that definition of an act adversely affecting an individual in civil service matters is no different from that adopted by the Court to define ‘challengeable acts’ for the purposes of Article 263 TFEU, ( 21 ) such that the case-law adopted in relation to that article can be applied, mutatis mutandis, to the present case.

80. In order to determine whether an act produces such binding effects, it is necessary to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act. ( 22 )

81. Furthermore, it follows from the case-law of the Court that preparatory acts, implementing measures, mere recommendations and opinions and, in principle, internal instructions cannot be regarded as acts producing binding effects. ( 23 )

82. It follows from those considerations that, to establish whether an act adversely affects an individual, consideration should be given only to its substance, meaning that the form taken by it is irrelevant. ( 24 ) I infer from that fact that, in the present case, the mere fact that the reply of 4 January 2016 took the form of an email is not enough to preclude its classification as an act adversely affecting the appellant, and that it is still necessary to analyse its content in order to determine its legal nature.

83. In that regard, I note, on the basis of the agreed facts in the present case, that, by email of 4 January 2016, Mr Picard contacted the manager of the Pensions sector of Unit 4 of the PMO in order to ascertain whether his pension rights had been modified by virtue of the signing of the contract of 16 May 2014.

84. By email of the same day, that manager replied to Mr Picard, informing him that his pension rights had ‘been modified as a result of the change of contract’, and that, therefore, ‘the normal retirement age has in fact changed to 66 years’ and that, ‘as regards the percentage of pension rights acquired annually, that percentage has changed to 1.8% per year as from 1 June 2014’. The author of the email ended that message with the words: ‘I hope this information will be of use to you’.

85. In my view, it follows from such circumstances that, setting aside the careful wording used in the reply of 4 January 2016, that email cannot, in the light of its content, be regarded as being for information purposes only. In that connection, I note that a request for specific information was made by Mr Picard to the manager of the Pensions sector of Unit 4 of the PMO and that that manager replied, in that capacity, to Mr Picard, informing him, just as specifically, that, by concluding a new contract, Mr Picard’s retirement age had been deferred to 66 years and that the rate of acquisition of his pension rights had been reduced.

86. However, that analysis alone is not enough to establish that Mr Picard’s action is admissible. In order to respond to the Commission’s arguments, it remains to be determined whether the reply of 4 January 2016 is capable of adversely affecting the appellant within the meaning of Article 90(2) of the Staff Regulations or whether the only challengeable decision is that definitively determining Mr Picard’s pension rights on the date on which he retires.

87. On that point, it is settled case-law of the Court that intermediate measures, where they express the provisional opinion of an institution, do not, in principle, constitute acts which may form the subject matter of an action for annulment. ( 25 ) In such circumstances, any legal defects in such provisional measures could be relied upon in an action directed against the definitive act. ( 26 )

88. That being the case, the finding that an act of an institution constitutes an intermediate measure which does not express the final position of an institution is not sufficient to establish, systematically, that that act is not a ‘challengeable act’. Thus, an intermediate measure which has independent legal effects may form the subject matter of an action for annulment in so far as the illegality attaching to that measure cannot be remedied in an action brought against the final decision for which it represents a preparatory step. It follows from the foregoing that, where a challenge to the legality of an intermediate measure in such an action is not capable of ensuring effective judicial protection for the applicant against the effects of that act, it must be capable of forming the subject matter of an action for annulment. ( 27 )

89. That case-law can, in my view, be transposed to the present case in order to determine whether the reply of 4 January 2016 can form the subject matter of an action for annulment. In that regard, I note that, in that reply, Mr Picard is informed inter alia that, on account of his change of contract, his retirement age has changed to 66 years. In addition, if the applicant were to be required to reach the age indicated in that reply in order to retire and contest the definitive decision taken on that date determining his retirement pension rights, he would be deprived of any effective remedy allowing him to argue that, under the transitional provisions laid down in Article 1(1) of the annex to the CEOS, he should have been entitled to a retirement pension from the age of 63 years.

90. It therefore follows that the reply of 4 January 2016 has independent legal effects, since it is capable of having irreversible effects directly and immediately affecting Mr Picard’s legal situation, which cannot be remedied by bringing an action against the definitive decision adopted when he retires.

91. In those circumstances, I consider that that reply must be regarded as an act adversely affecting Mr Picard within the meaning of Article 90(2) of the Staff Regulations, as he would otherwise be denied effective legal protection.

92. Accordingly, I take the view, in the light of all those considerations, that the action brought by Mr Picard must be regarded as admissible.

B. The merits of the action

93. If the Court adopts the reasoning that I have proposed that it follow when examining the single ground of appeal, the action brought by Mr Picard should be upheld. It is clear from the agreed points in the case file that, since 1 July 2008, the date of his initial employment as a member of the contract staff, the applicant has worked, without interruption, in the service of the European Union and continued to contribute to the pension scheme.

94. It follows from that fact that Mr Picard must be regarded as being employed on 31 December 2013 within the meaning of Article 1(1) of the annex to the CEOS and must, therefore, continue to benefit from the annual rate of acquisition of pension rights and the retirement age subject to the conditions and the detailed rules laid down in the transitional provisions of Regulation No 1023/2013.

95. I therefore propose that the Court annul the reply of 4 January 2016 and the rejection decision of 25 July 2016.

VIII. Costs

96. Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

97. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

98. In the present case, the appellant has requested the Court of Justice, after ruling on the case, to uphold his claims made at first instance and to order the Commission to pay the costs at both instances.

99. Since the Commission has been unsuccessful and Mr Picard applied for it to be ordered to pay the costs, the Commission must be ordered to bear, in addition to its own costs relating to the two sets of proceedings, those incurred by the appellant before the Court of Justice and the General Court.

IX. Conclusion

100. In the light of the foregoing considerations, I propose that the Court: (1) Set aside the judgment of the General Court of the European Union of 24 March 2021, Picard v Commission (T‑769/16, EU:T:2021:153); (2) Reject the objection of inadmissibility to Mr Maxime Picard’s action raised by the European Commission before the General Court; (3) Annul the reply of 4 January 2016 drawn up by the manager of the Pensions sector of Unit 4 of the Office for the Administration and Payment of Individual Entitlements stating that Mr Picard’s normal retirement age and the annual rate of acquisition of pension rights had changed to 66 years and 1.8% respectively as from 1 June 2014; (4) Annul the decision of 25 July 2016 of the Director of Directorate E of the European Commission’s Directorate-General for Human Resources, in his capacity as the authority empowered to conclude contracts of employment, dismissing the complaint lodged by Mr Picard against the reply of 4 January 2016; (5) Order the European Commission to bear, in addition to its own costs in relation to the two sets of proceedings, those incurred by the appellant before the Court of Justice and the General Court.

( 1 ) Original language: French.

( 2 ) OJ 2013 L 287, p. 15.

( 3 ) The applicant’s age on that date.

( 4 ) T‑128/17, EU:T:2018:969, ‘the judgment in Torné’.

( 5 ) The General Court relied, to that effect, on the judgments of 26 February 2002, Council v Boehringer (C‑23/00 P, EU:C:2002:118, paragraphs 50 to 52), and of 13 January 2017, Deza v ECHA (T‑189/14, EU:T:2017:4, paragraph 26).

( 6 ) With the exception of paragraph 4 of Article 22.

( 7 ) The General Court referred, to that effect, to the judgment of 16 September 2015, EMA v Drakeford (T‑231/14 P, EU:T:2015:639, ‘the judgment in EMA v Drakeford’, paragraph 40).

( 8 ) Judgment of 24 March 2022, GVN v Commission (C‑666/20 P, not published, EU:C:2022:225, paragraph 51 and the case-law cited).

( 9 ) Those objectives, which had already been stated in the explanatory memorandum to the proposal for a Regulation drawn up by the Commission (OJ 2012 C 102, p. 19), are set out in recitals 14 and 15 of Regulation No 1023/2013.

( 10 ) See, to that effect, judgment of 3 March 2022, WV v EEAS (C‑162/20 P, EU:C:2022:153, paragraph 92 and the case-law cited).

( 11 ) This word can also be found inter alia in the German (‘sinngemäß’), Estonian (‘analoogia’), Spanish (‘analogía’), Italian (‘analogia’) and Polish (‘analogii’) language versions.

( 12 ) This is the definition given in the eighth edition (Paris, 1935) of the Dictionary of the Académie française. The Larousse Dictionary (Paris, 1977) defines the word ‘analogie’ in the following terms: ‘Rapport, ressemblance d’une chose avec une autre’ (in English: ‘relationship/resemblance of one thing to another’).

( 13 ) Moreover, that intention to respect rights acquired prior to the entry into force of the new provisions had previously been expressed in the explanatory memorandum to the proposal for a regulation drawn up by the Commission (OJ 2012 C 102, p. 19).

( 14 ) Furthermore, an interpretation to that effect does not appear to me to be contradicted by the use, in recital 29 of Regulation No 1023/2013, simply of the words ‘Staff Regulations’, since the transitional measures laid down in Article 1(1) of the annex to the CEOS make direct reference to Articles 21 and 22 of Annex XIII of the Staff Regulations.

( 15 ) Two thirds of the contribution to the pension scheme constitutes a staff-related debt, which will have to be paid from the EU budget as staff retire.

( 16 ) For an overall presentation of the system upon which the retirement pension scheme for officials and members of the contract staff of the European Union is based, see Pilorge-Vrancken, J., Droit de la fonction publique de l’Union européenne, Bruylant, Éditions juridiques, 2017, p. 151 et seq. and p. 254.

( 17 ) In that regard, I note that, in the judgment in Torné, the General Court essentially based its interpretation of Articles 21 and 22 of Annex XIII to the Staff Regulations on the criterion of the official’s continued membership since entering the service.

( 18 ) See, to that effect, judgments of 26 February 2002, Council v Boehringer (C‑23/00 P, EU:C:2002:118, paragraphs 50 to 52), and of 21 December 2016, Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:989, paragraphs 67 and 68 and the case-law cited).

( 19 ) In that respect, I note that, as is shown by the pleadings lodged by the parties before the General Court and the transcript of the hearing held before that court, the admissibility of the action brought by Mr Picard was discussed extensively before the General Court.

( 20 ) See, to that effect, judgment of 14 October 2021, KF v SatCen (C‑464/20 P, not published, EU:C:2021:848, paragraph 26 and the case-law cited).

( 21 ) See, with regard to the definition of ‘challengeable acts’ for the purposes of Article 263 TFEU, judgments of 25 February 2021, VodafoneZiggo Group v Commission (C‑689/19 P, EU:C:2021:142, paragraph 48 and the case-law cited), and of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission (C‑572/18 P, EU:C:2021:317, paragraph 46 and the case-law cited).

( 22 ) See judgment of 6 October 2021, Poggiolini v Parliament (C‑408/20 P, EU:C:2021:806, paragraph 32 and the case-law cited).

( 23 ) See judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission (C‑572/18 P, EU:C:2021:317, paragraph 47 and the case-law cited).

( 24 ) Thus, a monthly salary statement can show that a decision has been taken. See, to that effect, judgments of 15 June 1976, Wack v Commission (1/76, EU:C:1976:91, paragraph 5), and of 30 September 1986, Delhez and Others v Commission (264/83, EU:C:1986:344, paragraph 20 and the case-law cited). Following the same logic, an oral interview in the course of which the Appointing Authority expressed its decision not to pursue the procedure for appointment of an official to a vacant post can be regarded as an act adversely affecting an individual. See, to that effect, judgment of 9 February 1984, Kohler v Court of Auditors (316/82, EU:C:1984:49, paragraphs 9 to 13).

( 25 ) See, to that effect, judgment of 3 June 2021, Hungary v Parliament (C‑650/18, EU:C:2021:426, paragraphs 43 and 44 and the case-law cited).

( 26 ) See, to that effect, judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission (C‑572/18 P, EU:C:2021:317, paragraph 50 and the case-law cited).

( 27 ) See judgment of 6 October 2021, Poggiolini v Parliament (C‑408/20 P, EU:C:2021:806, paragraphs 38 and 39 and the case-law cited).