Case T‑702/16 P

José Barroso Truta and Others

v

Court of Justice of the European Union

(Appeal — Civil service — Members of the contract staff — Pensions — Transfer to the EU pension scheme of pension rights acquired previously under national schemes — Damage resulting from the allegedly insufficient information provided to the appellants by the AECE when communicating the proposals concerning additional pensionable years relating to them — Dismissal of the action for damages at first instance — Fourth paragraph of Article 77 of the Staff Regulations — Material damage)

Summary — Judgment of the General Court (Appeal Chamber), 18 September 2018

Officials — Pensions — Pension rights acquired before entry into the service of the European Union — Transfer to the EU scheme — Possible refusal to refund the person concerned the capital from his transferred pension rights not taken into account in the calculation of pension rights — Possibility for the person concerned to bring an action for unjust enrichment against the European Union

Officials — Non-contractual liability of the institutions — Conditions — Damage — Material damage allegedly caused by the administration’s failure to inform a member of the contract staff that the transfer of his national pension rights to the EU scheme would have no impact on his future pension — Uncertain damage

Actions brought by officials — Actions for damages — Subject-matter — Application to obtain the same financial outcome as that resulting from an action for annulment — Inadmissibility — Action for compensation for damage suffered on account of allegedly wrongful conduct of the administration — Admissibility

An official or other staff member who has failed to challenge acts adversely affecting him by lodging a complaint and, subsequently, bringing an action for annulment in good time cannot remedy that omission and thus obtain further time to bring proceedings by means of a subsequent claim for compensation, the purpose of which is clearly to obtain the same financial outcome as would have resulted from an action for annulment of those acts brought in good time. In the present case, by their claims for compensation, the members of the contract staff were not seeking to obtain compensation for the damage which they suffered on account of the crediting of those pensionable years after transfer to the EU pension scheme of pension rights acquired previously under national schemes, but rather for the damage allegedly resulting from the fact that, despite the crediting of pensionable years, they could neither aspire to a higher level of pension nor hope to recover the capital value corresponding to their national pension rights, now transferred to the EU pension scheme. The view cannot therefore be taken that the action brought at first instance seeks to obtain compensation solely for the consequences of the decisions crediting pensionable years. (see paras 67, 77, 79)

The damage for which compensation is sought in the context of an action for damages must be actual and certain. Nevertheless, the persons concerned are not prevented from bringing proceedings before the EU judicature for a finding that the European Union is liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed. In such circumstances, if it is established that the persons concerned would of necessity have been in a better position if the breach of duty for which they hold the defendant responsible had not been committed, the view must be taken that the existence of the damage alleged by them cannot be regarded as being hypothetical or merely possible. That is not the case as regards damage resulting from the alleged failure of the administration to inform a member of the contract staff that the pensionable years obtained by transferring his national pension rights to the EU pension scheme would have no impact on the amount of his future pension, as a result of the fourth paragraph of Article 77 of the Staff Regulations. First, the amount of the final basic salary which the person concerned will receive prior to his retirement is currently uncertain. It cannot be ruled out that the person concerned might later access employment as a temporary member of staff or an official, which would exclude him from the scope of the minimum subsistence figure rule provided for in the fourth paragraph of Article 77 of the Staff Regulations. Second, the number of years of service performed with EU institutions by the person concerned on his retirement is also, at this stage, uncertain. It cannot be ruled out that the date on which the person concerned chooses to take retirement might also have consequences for the calculation of the final amount of his pension. (see paras 93, 94, 96, 98, 99)