ORDER OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Second Chamber)

14 July 2016

Dolores Dominguez Perez

v

European Commission

‛Civil service — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Pension rights acquired before entering the service of the European Union under a national pension scheme — Transfer to the EU pension scheme — Proposal concerning additional pensionable years, accepted by the person concerned, based on new general implementing provisions — Act not having an adverse effect — Legal certainty — Legitimate expectations — Equal treatment — Article 81 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Dolores Dominguez Perez seeks annulment of two proposals of 20 September 2013 calculating, under the EU pension scheme, the pension rights acquired by the applicant before her entry into the service of the EU.

Held:

The action is dismissed as being in part manifestly inadmissible and in part manifestly unfounded. Ms Dolores Dominguez Perez is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Officials — Pensions — Pension rights acquired before entry into the service of the EU — Transfer to the EU scheme — Adoption of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Difference in treatment between officials who have had the capital representing their pension rights transferred to the EU scheme before and after the entry into force of those provisions, respectively — Breach of the principle of equal treatment — None

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 general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Application to the transfer of acquired pension rights applied for before the adoption of the new rule but effected after its entry into force — Infringement of acquired rights and of the principle of legitimate expectations — None

Actions brought by officials — Act adversely affecting an official — Concept — Proposal concerning additional pensionable years with a view to a transfer to the EU pension scheme of pension rights acquired before entry into the service of the EU — Not included — Decision to credit pensionable years adopted following transfer of the capital representing acquired pension rights — Included

Under Article 91(1) of the Staff Regulations, the Court of Justice of the European Union has jurisdiction in any dispute between the European Union and any person to whom the Staff Regulations apply regarding the legality of an act affecting such a person adversely. Only measures affecting the legal situation of those concerned directly and immediately may be regarded as having adverse effect. In that regard, a proposal concerning additional pensionable years does not produce binding legal effects which directly and immediately affect the legal situation of the person to whom it is addressed, by significantly altering that situation, and therefore cannot be classified as constituting an act having adverse effect for the purposes of Article 91(1) of the Staff Regulations. However, in some circumstances claims for annulment of an action by the EU judicature should be interpreted as seeking in reality annulment of the final decision crediting the person concerned with additional pensionable years resulting from pension rights acquired earlier under another scheme. That would be the case where the person concerned has given his consent for the procedure to transfer his pension rights acquired prior to his entry into service to move forward, indicating his agreement to the proposal which had been made to him, provided that procedure had actually moved forward and had led to the adoption of a final decision before the action was brought. (see paras 32, 34, 37) See: Order of 8 March 2007 in Strack v Commission, C‑237/06 P, EU:C:2007:156, para. 62 and the case law cited Judgment of 13 October 2015 in Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 110 to 139 Judgment of 4 September 2008 in Lafili v Commission, F‑22/07, EU:F:2008:104, para. 30 and the case law cited

According to a generally accepted principle and save as otherwise provided, a new rule applies immediately to situations yet to arise and to the future effects of situations which arose, but were not fully constituted, under the old rule. That is so except for situations originating and becoming definitive under the previous legislation, which create acquired rights. A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment. However, that is not the case when the event creating the right did not take place under the legislation that has been amended. In that regard, the application of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations to a transfer of pension rights acquired under another pension scheme, applied for before the adoption of those provisions but carried out after they entered into force, is not contrary to Article 11(2) of Annex VIII to the Staff Regulations. Moreover, even with specific assurances such as to engender legitimate expectations in the addressees, individuals cannot rely on the principle of protection of legitimate expectations in order to oppose the application of a new legislative provision, especially in a sphere in which the legislature enjoys a considerable degree of latitude. (see paras 47, 52, 58, 60) See: Judgment of 22 December 2008 in Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paras 33, 61 to 63 and 91 and the case law cited Judgment of 13 October 2015 in Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 152, 154, 165 and 170 Judgment of 13 June 2012 in Guittet v Commission, F‑31/10, EU:F:2012:80, para. 47 and the case law cited