1 By his appeal, Mr Enrico Falqui seeks to have set aside the judgment of the General Court of the European Union of 5 May 2021, Falqui v Parliament (T‑695/19, ‘the judgment under appeal’, EU:T:2021:242), by which the General Court dismissed his action for annulment, first, of the note of 8 July 2019 drawn up by the European Parliament (‘the decision at issue’) concerning the adjustment of the amount of the pension received by the appellant following the entry into force, on 1 January 2019, of Decision No 14/2018 of the Ufficio di Presidenza della Camera dei deputati (Office of the President of the Chamber of Deputies, Italy), of 12 July 2018 (‘Decision No 14/2018’), second, of the note of 11 April 2019 drawn up by the Head of the Members’ Salaries and Social Entitlements Unit of the Parliament’s Directorate-General for Finance (‘the Head of Unit’) concerning the application of the pension he receives following the entry into force, on 1 January 2019, of Decision No 14/2018; and, third, of Opinion No SJ-0836/18 of the Legal Service of the Parliament of 11 January 2019 (‘the Opinion of the Legal Service’).
2 Article 1 of Annex III to the Rules governing the payment of expenses and allowances to Members of the European Parliament, in the version in force until 14 July 2009 (‘the PEAM Rules’), provided: ‘1. All Members of the European Parliament shall be entitled to a retirement pension. 2. Pending the establishment of a definitive Community pension scheme for all Members of the European Parliament, where no pension is provided under national arrangements or where the level and/or conditions of such pension are not identical to those applicable to Members of the national parliament of the Member State for which the Member was elected, a provisional pension shall, at the request of the Member concerned, be paid from the European Union budget, Parliament Section.’
3 Article 2 of Annex III to the PEAM Rules provided: ‘1. The level and conditions of [the provisional] pension shall be identical to those applicable to the pension for Members of the lower house of the parliament of the Member State for which the Member of the European Parliament was elected. 2. A Member benefiting under Article 1(2) shall be required, when joining the scheme, to pay to the European Union budget a sum so calculated that he or she pays the same overall contribution as that payable by a Member of his or her parliament under national provisions.’
4 Under Article 3(1) and (2) of Annex III to the PEAM Rules: ‘1. Applications to join this provisional pension scheme must be submitted within 12 months of the beginning of the Member’s term of office. Once that time limit has expired, membership of the pension scheme shall take effect from the first day of the month in which the application was received. 2. Applications for payment of the pension must be made within six months of the commencement of entitlement. Once that time limit has expired, the pension shall be payable from the first day of the month in which the application was received.’
5 Article 25(1) and (2) of Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1, ‘the Statute for Members’), which entered into force on 14 July 2009, reads as follows: ‘1. Members who belonged to Parliament prior to the entry into force of this Statute and were re-elected may opt for the national system applicable hitherto in respect of the salary, transitional allowance and pensions for the entire duration of their membership of the European Parliament. 2. These payments shall be made from the budget of the Member State in question.’
6 Article 28(1) of the Statute for Members provides: ‘Any pension entitlement that a Member has acquired in accordance with national arrangements at the time when this Statute is applied shall be retained in full.’
7 Recital 7 of Decision 2009/C 159/01 of the Bureau of the European Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members (OJ 2009 C 159, p. 1), as amended by Decision 2010/C 340/06 of the Bureau of the European Parliament of 13 December 2010 (OJ 2010 C 340, p. 6) (‘the Implementing Measures’), states: ‘… in the transitional provisions steps should be taken to ensure that persons in receipt of certain benefits under the PEAM Rules continue to receive them after those rules have been repealed, in keeping with the principle of [the protection of] legitimate expectations. Steps should also be taken to guarantee maintenance of the pension rights acquired on the basis of the PEAM Rules prior to the entry into force of the Statute [for Members].’
8 Article 49(1) of the Implementing Measures states: ‘After the cessation of their term of office, Members who have exercised their mandate for at least one complete year shall be entitled, for life, to an old-age pension payable from the first day of the month following that in which they reach the age of 63. Former Members or their legal representatives shall, except in cases of force majeure, submit their application for payment of the old-age pension within six months of the commencement of entitlement. After that deadline the date on which enjoyment of the old-age pension takes effect shall be the first day of the month in which the application is received.’
9 Pursuant to Article 73 of the Implementing Measures, those measures entered into force on the same date as the Statute for Members, namely on 14 July 2009.
10 Article 74 of the Implementing Measures specifies that, subject to the transitional provisions laid down in Title IV thereof - and in particular Article 75 thereof - the PEAM Rules were to cease to be valid on the date on which the Statute for Members entered into force.
11 Under Article 75 of the Implementing Measures: ‘1. The survivor’s pension, the invalidity pension, the additional invalidity pension granted for dependent children and the old-age pension paid pursuant to Annexes I, II and III to the PEAM Rules shall continue to be paid pursuant to those annexes to those persons who were in receipt of the benefits in question prior to the date of entry into force of the Statute [for Members]. Where a former Member in receipt of the invalidity pension dies after 14 July 2009, the survivor’s pension shall be paid to his or her spouse, stable non-marital partner or dependent children, subject to the conditions laid down in Annex I to the PEAM Rules. 2. The old-age pension rights acquired prior to the date of entry into force of the Statute [for Members] pursuant to the aforementioned Annex III shall be maintained. Persons who have acquired rights under that pension scheme shall receive a pension calculated on the basis of their acquired rights pursuant to the aforementioned Annex III as soon as they meet the relevant conditions laid down by the national law of the Member State concerned and they have submitted the application referred to in Article 3(2) of the aforementioned Annex III.’
12 Under Article 1(1) to (3) of Decision No 14/2018: ‘1. From 1 January 2019, the amount of direct and survivors’ lifetime annuities and of the lifetime annuity proportion of pro rata direct and survivors’ pension benefits, entitlement to which was acquired pursuant to the rules in force on 31 December 2011, shall be calculated in accordance with the new rules provided for in this decision. 2. The new calculation referred to in the preceding paragraph shall be carried out by multiplying the amount of the individual contribution by the conversion coefficient relating to the age of the Member of Parliament on the date on which the Member of Parliament became entitled to the lifetime annuity or pro rata pension benefit. 3. The conversion coefficients set out in Table 1, annexed to this decision, shall be applied.’
13 The background to the dispute is set out in paragraphs 13 to 23 of the judgment under appeal. For the purposes of the present appeal, it may be summarised as follows.
14 The appellant, Mr Falqui, is a former Member of the Parliament, elected in Italy. He receives a retirement pension.
15 By inserting a comment into the pension statement for January 2019, the Parliament warned him that the amount of his retirement pension could be revised pursuant to Decision No 14/2018 and that that new calculation might give rise to the recovery of overpaid sums.
16 From 1 January 2019, the Parliament, by applying that decision in accordance with Article 2(1) of Annex III to the PEAM Rules, reduced the amount of the appellant’s retirement pension.
17 By an undated note from the Head of Unit, appended to the appellant’s pension statement for February 2019, the Parliament, first, informed the appellant that, by the Opinion of the Legal Service, it had been confirmed that Decision No 14/2018 applied automatically to his situation. It then went on to explain that once it had received the necessary information from the Camera dei deputati (Chamber of Deputies, Italy), the Parliament would notify the appellant of the new amount of his retirement pension and would recover any difference over the following 12 months. Finally, it informed the appellant that the definitive amount of his pension would be decided in a formal act against which it would be possible to lodge a complaint or an action for annulment.
18 By a note of 11 April 2019, the Head of Unit, first, informed the appellant that, as he had stated in his note annexed to the appellant’s pension statement for February 2019, the amount of his retirement pension would be adjusted, pursuant to Article 2(1) of Annex III to the PEAM Rules, in line with the reduction of similar pensions paid in Italy to former members of the national parliament by the Chamber of Deputies pursuant to Decision No 14/2018. Second, the amount of the appellant’s retirement pension would be adjusted from April 2019, with retroactive effect from 1 January 2019, pursuant to the proposed new pension calculation appended to that note. Third, the note of 11 April 2019 gave the appellant a period of 30 days, from its receipt, to submit his comments. If he did not do so, the effects of that note would be considered final and would entail, in particular, the recovery of the amounts overpaid for January to March 2019.
19 By email of 23 May 2019, the appellant submitted his comments to the Parliament.
20 On 10 June 2019, the appellant brought an action for annulment before the General Court, registered as Case T‑347/19, against the note of 11 April 2019. That action was dismissed by order of 3 July 2020, Falqui and Poggiolini v Parliament (T‑347/19 and T‑348/19, EU:T:2020:303) as manifestly inadmissible. The appellant did not bring an appeal against that order.
21 By the decision at issue, the Head of Unit stated that the comments submitted by the appellant did not contain any evidence such as to justify a review of the Parliament’s position, as expressed in the draft decision. Consequently, the resulting retirement pension amounts and the recovery plan for sums overpaid, as recalculated and notified in the annex to the draft decision, had become final on the date of notification of the decision at issue.
22 The appellant did not initially receive notification of the decision at issue, since it had been returned by the Italian post to the Belgian post. It was not until 29 August 2019, when the Parliament lodged its plea of inadmissibility against the action brought in Case T‑347/19, that the appellant became aware of the decision at issue. However, following the lodging of that plea of inadmissibility, the Parliament then made a second notification of the decision at issue in a timely manner.
23 By application lodged at the Registry of the General Court on 11 October 2019, the appellant brought the action for annulment of the decision at issue, the note of 11 April 2019 and the Opinion of the Legal Service.
24 In support of his action for annulment, the appellant relied on three pleas in law. The first plea alleged infringement of the Implementing Measures. The second plea alleged that, in view of the alleged illegality of Decision No 14/2018 in the light of Italian law, the Parliament should have refused to apply that decision to the appellant’s situation. The third plea alleged breach of the principles of primacy, legal certainty, protection of legitimate expectations and proportionality.
25 By the judgment under appeal, the General Court rejected those three pleas in law and, accordingly, dismissed that action.
26 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the Opinion of the Legal Service, the draft decision and the decision at issue; and - order the Parliament to pay the costs of both sets of proceedings.
27 The Parliament contends that the Court should: - dismiss the appeal and - order the appellant to pay the costs, including those incurred at first instance.
28 On 12 January 2022, Mr Falqui lodged at the Registry of the Court of Justice a copy of judgment No 4/2021 of the Consiglio di giurisdizione della Camera dei deputati (Judicial Council of the Chamber of Deputies, Italy) of 23 December 2021 (‘Judgment No 4/2021’), annulling Decision No 14/2018. That document was not, at that stage, added to the file.
29 On 9 March 2022, the appellants in Santini and Others v Parliament (C‑198/21 P) lodged that judgment at the Court Registry.
30 In the present case, as well as in Coppo Gavazzi and Others v Parliament (C‑725/20 P) and Santini and Others v Parliament (C‑198/21 P), the Registry, on 16 March 2022, addressed to the parties in those cases a measure of organisation prescribed by the Judge-Rapporteur and the Advocate General pursuant to Article 62 of the Rules of Procedure of Justice, according to which the parties were asked to produce all the documents likely to have a bearing on the subject matter of the case concerning them, inter alia, Judgment No 4/2021.
31 On 23 March 2022, the appellant produced several documents, including Judgment No 4/2021. On 29 March 2022, the Parliament also produced a number of documents, including Judgment No 4/2021 and a document entitled ‘New rules for the calculation of pensions adopted by the Italian Chamber of Deputies’. The Parliament also informed the Court that, as soon as it received the additional clarifications it had requested from the Chamber of Deputies regarding the application of those rules in practice, it would recalculate the appellant’s retirement pension and send him a new draft decision fixing his pension rights, on which he would have the opportunity to submit comments before the adoption of a final decision.
32 On 21 September 2022, the Parliament adopted the final decision fixing the new amount of the appellant’s retirement pension together with the arrears payable (‘the Parliament’s new decision’).
33 By decision of 25 October 2022, the President of the Court of Justice asked the parties to state whether they took the view, first, that the Parliament’s new decision had replaced the decision at issue ex tunc and, second, that, following the adoption of that new decision, the appeal retained its purpose.
34 On 29 November 2022, the Parliament stated that it took the view that the Parliament’s new decision had replaced the decision at issue ex tunc, but that the appeal retained its purpose. In its view, it would be in the interests of the parties and the proper administration of justice for the Court to rule on the merits of the appeal, in order to clarify whether the judgment under appeal is vitiated by an error of law and whether the Parliament may recalculate, on the basis of Article 2(1) of Annex III to the PEAM Rules, the appellant’s pension in the event of a change in the applicable national rules.
35 By letter lodged on 29 November 2022, the appellant stated that he took the view that he still had an interest in the Court ruling on the interpretation of Article 75(2) of the Implementing Measures. By the Parliament’s new decision, the Parliament continued to refer automatically to the national rules in order to amend the rules for calculating the amount of the retirement pension paid under the PEAM Rules, with the result that the former Member of the European Parliament concerned would be exposed, in that regard, to the risk of changing decisions by a national political body.
36 In support of his appeal, by which he seeks, in essence, to call into question the General Court’s confirmation of the soundness of the interpretation of Article 75 of the Implementing Measures, read in conjunction with Article 2(1) of Annex III to the PEAM Rules (‘the Parliament’s internal rules’), the appellant puts forward five grounds of appeal. The first ground of appeal contains, in essence, three parts. The first alleges misinterpretation of Article 1(2) and Article 2(1) of Annex III to the PEAM Rules and of Article 75 of the Implementing Measures, the second alleges infringement of Article 28 of the Statute for Members and the third alleges incorrect assessment of the effects of Decision No 14/2018. The second ground of appeal, which has two parts, alleges infringement of the principles of the protection of legitimate expectations and proportionality. By his third ground of appeal, the appellant submits that the General Court incorrectly held that a national pension scheme can automatically be applied by the Parliament to its former Members, without verification, by the Parliament, of the legality of the national scheme. The fourth ground of appeal alleges that the General Court erred in failing to take into consideration the effects of a judicial decision subsequent to Decision No 14/2018. The fifth ground of appeal, which has three parts, alleges errors of law committed by the General Court in that, first, it wrongly rejected the second and third pleas in the action at first instance as inadmissible, second, it declared that it had no jurisdiction to rule on the recovery of sums unduly withheld if the action was successful and, third, it ordered the appellant to bear his own costs and to pay those incurred by the Parliament.
37 It is apparent from paragraph 32 above that the Parliament’s new decision, adopted in the course of the proceedings before the Court, seeks to fix the new amount of the retirement pension paid to the appellant together with the arrears payable.
38 In that regard, it should be borne in mind that, according to the settled case-law of the Court, the purpose of the action must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the appeal must be liable, if successful, to procure an advantage for the party bringing it (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 43 and the case-law cited).
39 Nevertheless, an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him or her has ceased to have effect in the course of proceedings (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 62).
40 In certain circumstances, an applicant may retain an interest in seeking the annulment of an act repealed in the course of proceedings, in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (judgment of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraph 64 and the case-law cited).
41 In the present case, it follows unambiguously from the Parliament’s reply of 29 November 2022, summarised in paragraph 34 above, that the Parliament wishes, also in the future, to recalculate the pensions of former Members of the European Parliament in the event of a change in the national rules referred to in Article 2(1) of Annex III to the PEAM Rules (‘the dynamic system’).
42 Although the Parliament replaced the decision at issue with the new decision, the fact remains that it is based on an interpretation of the Parliament’s internal rules according to which the Parliament is required to apply the dynamic system to former Members receiving a retirement pension who, like the appellant, come within the scope of Annex III to the PEAM Rules (‘the former Members of the European Parliament concerned’).
43 It is precisely that interpretation which is called into question by the appellant in the present appeal. It follows that, notwithstanding the ex tunc replacement of the decision at issue, the appellant retains an interest in obtaining a finding that the General Court erred in law in confirming the soundness of that interpretation, since the latter is liable to be applied by the Parliament when it adopts, in the future, decisions similar to the decision at issue or to the Parliament’s new decision, with the result that there is not only a risk that the alleged unlawfulness will be repeated, within the meaning of the case-law referred to in paragraph 40 above, but also a risk that, in the event of an action for annulment of such similar decisions, the General Court may again commit the alleged errors of law which led it to confirm the soundness of that interpretation.
44 It must be held that the appellant retains an interest in bringing proceedings before the Court of Justice, in so far as the present appeal is directed against the grounds of the judgment under appeal which constitute the ratio decidenci of the General Court’s finding that it follows from the Parliament’s internal rules that the Parliament was required to apply the dynamic system to the appellant.
45 The first ground of appeal contains, in essence, three parts.
46 By the first part, the appellant submits that, contrary to what the General Court held in paragraph 49 of the judgment under appeal, the Statute for Members repealed the PEAM Rules and rendered them inapplicable for the future.
47 The appellant submits that, under Article 1(2) of Annex III to the PEAM Rules, the retirement pension scheme established by those rules is only provisional in nature. However, the Implementing Measures state that, in order to protect the legitimate expectations of the former Members of the European Parliament concerned, the old-age pension rights already granted or, in any event, already acquired on the basis of the rules contained in the PEAM Rules remained unchanged.
48 It is apparent from recital 7 of the Implementing Measures and from Article 75 thereof, read in the light of the principle of the protection of legitimate expectations, that benefits granted or acquired under the PEAM Rules during the period in which they were in force are, contrary to what the General Court held in paragraph 57 of the judgment under appeal, inalterable. The reference to national law in Annex III to the PEAM Rules should therefore be understood as a reference to national legislation as applicable at the time when the pension right was acquired.
49 Contrary to what the General Court held, the fact that the PEAM rules state that the pension scheme introduced by those rules is ‘provisional’, ‘pending the establishment of a definitive Community pension scheme for all Members of the European Parliament’, cannot be interpreted as meaning that that scheme was to be maintained after the entry into force of the Statute for Members. The use of the present indicative merely expresses the current nature of the rule, at the time of its introduction and until its repeal.
50 Article 75 of the Implementing Measures does not provide that pensions already granted or pension rights already acquired will continue to be governed in the future by the rule that the amount of the pension of the former Members of the European Parliament concerned must be correlated at all times with that received by members of the national parliament, but that pensions already granted in the past on the basis of that rule ‘shall continue to be paid’ and that the pension rights already acquired ‘shall be maintained’.
51 If the benefits granted or acquired on the basis of the PEAM Rules were not inalterable under the Implementing Measures, those benefits would be contrary to their objective of protecting legitimate expectations, since the former Members of the European Parliament concerned would be exposed to the amendments made to the rules for calculating the amount of their retirement pension as a result of new national rules in that area, whereas Members of the European Parliament who have exercised their mandate since the 2009-2014 parliamentary term would be entitled to a retirement pension the amount of which is certain and inalterable.
52 By the second part of his first ground of appeal, the appellant criticises the General Court for holding, in paragraph 62 of the judgment under appeal, that its interpretation of the Parliament’s internal rules, set out in paragraph 57 of that judgment, according to which the Parliament is required to apply, at all times, the same rules relating to the level and conditions of the retirement pensions of the former Members of the European Parliament concerned as those laid down by the law of the Member State in which they were elected, is not contrary to Article 28 of the Statute for Members, on the ground that that provision applies only to pension rights acquired by Members under national schemes, whereas the appellant’s pension rights were acquired on the basis of the provisions of Annex III to the PEAM Rules.
53 It follows from Article 1(2) and Article 2(1) of Annex III to the PEAM Rules that the objective pursued by those rules was to avoid any disparity in treatment between, on the one hand, Members of the European Parliament elected in the Member States which guarantee, at their own expense, a pension identical to that of members of the national parliament and, on the other hand, Members of the European Parliament elected in Member States which, like the Italian Republic, did not provide for them pensions identical to those of members of the national parliament.
54 Therefore, even if it were necessary to consider, as the General Court did, that Article 28 of the Statute for Members refers only to Members of the European Parliament who have acquired a right to a pension ‘in accordance with national arrangements’, the objective of putting the two categories of Members of the European Parliament referred to in the preceding paragraph on an equal footing would preclude the transitional arrangements relating to former Members who were already in receipt of a retirement pension at the time when the Statute for Members entered into force from being different, in essence, depending on whether that pension is granted by a Member State or by the Parliament, pursuant to Annex III to the PEAM Rules.
55 By the third part of the first ground of appeal, the appellant criticises the General Court for holding that Decision No 14/2018 had an impact only on the amount of the retirement pensions of former members of the Italian Parliament, even though it had an impact on their pension entitlement as such, and did so retroactively.
56 That decision provided for the replacement of pension rights already acquired and settled under the Italian scheme prior to 2012, which provided for the grant of a hybrid pension-social insurance benefit, with a contributory pension scheme. It follows that, by applying Decision No 14/2018 to the situation of the former Members of the European Parliament concerned, the Parliament is altering not only the amount of their retirement pension but also their acquired right to a pension, by abolishing that right with retroactive effect and replacing it with another, the nature and conditions for the grant of which are different.
57 By the first part of his first ground of appeal, the appellant claims that the Statute for Members repealed the PEAM Rules and rendered them inapplicable for the future, with the result that the amount of the benefits granted or acquired under the PEAM Rules during the period when the rules were in force became inalterable.
58 By such a complaint, the appellant disputes, in essence, the soundness of the interpretation of the Parliament’s internal rules according to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
59 The same is true of the second part, since the interpretation by the General Court, in paragraph 62 of the judgment under appeal, of Article 28 of the Statute for Members, according to which that provision applies only to pension rights acquired by Members under national arrangements, is one of the grounds on which the General Court held that the first sentence of Article 75(2) of the Implementing Measures cannot be interpreted as guaranteeing to the former Members concerned the right to a fixed and immutable amount of retirement pension
60 By the third part of this ground of appeal, the appellant claims that Decision No 14/2018 had an impact on his right to a pension. Therefore, by that part of the ground of appeal, the appellant does not dispute the soundness of the interpretation of the Parliament’s internal rules according to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
61 It follows that it is appropriate to examine only the first and second parts of the first ground of appeal.
62 The appellant complains, in essence, that the General Court held, in paragraph 67 of the judgment under appeal, that the Parliament was entitled to rely on its internal rules in order to apply the dynamic system to the former Members of the European Parliament concerned.
63 It should be noted, first of all, that, according to Article 2(1) of Annex III to the PEAM Rules ‘the level and conditions of [the provisional] pension shall be identical to those applicable to the pension for Members of the lower house of the parliament of the Member State for which the Member of the European Parliament was elected’.
64 As the General Court stated, in essence, in paragraph 54 of the judgment under appeal, it is apparent from the words ‘the level and conditions of [the provisional] pension shall be identical’ that the Parliament is required to apply to the former Members of the European Parliament concerned the rules for calculating pensions as applied to members of the parliament of the Member State in which those former Members of the European Parliament were elected. In other words, the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
65 That interpretation of Article 2(1) of Annex III to the PEAM Rules is consistent with the objective pursued by that provision, as set out in Article 1(2) of that annex.
66 The latter provision states that only former Members of the European Parliament in respect of whom the retirement scheme of the Member State in which they were elected does not provide for a pension scheme or the level of and/or method for calculating the pension to which they are entitled are not identical to those applicable to members of the national parliament, may receive the pension provided for in Article 2(1) of that annex.
67 Therefore, the main purpose of Article 2(1) of Annex III to the PEAM Rules is to enable former Members of the European Parliament who find themselves in the situation referred to in Article 1(2) of that annex to be treated in the same way as Members of the European Parliament whose national pension scheme provided for a right to a pension the level and/or method of calculation of which were identical to those applicable to members of their national parliament.
68 An interpretation of that provision to the effect that it requires the Parliament to apply the dynamic system to the former Members of the European Parliament concerned thus has the effect of making those Members, like those other former Members of the European Parliament, subject to amendments made to the rules for calculating the pension amount of members of their national parliament.
69 That system, based on Annex III to the PEAM Rules, was maintained, in accordance with Article 75 of the Implementing Measures, after the entry into force of the Statute for Members as regards, inter alia, the retirement pensions of former Members of the European Parliament.
70 It is true that Article 74 of the Implementing Measures provides that the PEAM Rules were to cease to be valid on the date on which the Statute for Members entered into force. However, as that provision expressly states, the expiry of the PEAM Rules is subject to the transitional provisions laid down in Title IV of those measures. Those transitional provisions include Article 75 of those measures.
71 Under Article 75(1) of the Implementing Measures, which applies, as the General Court found in paragraph 51 of the judgment under appeal, to the appellant, the retirement pensions granted under Annex III to the PEAM Rules are to continue to be paid pursuant to that annex to those persons who were in receipt of the benefits in question prior to the date of entry into force of the Statute for Members.
72 As the General Court correctly pointed out in paragraph 56 of the judgment under appeal, it must be inferred from the wording of that provision, and more specifically from the mandatory nature of the wording ‘shall continue to be paid pursuant to [Annex III to the PEAM Rules]’ and from the use of the present indicative in that wording, that the dynamic system remains applicable to the former Members of the European Parliament concerned after the entry into force of the Statute for Members.
73 Therefore, the General Court did not err in law, contrary to what the appellant claims in that first part, in finding, in paragraph 49 of the judgment under appeal, that the provisions of Annex III to the PEAM Rules were not repealed following the entry into force of the Statute for Members.
74 The interpretation of Article 75(1) of the Implementing Measures according to which the dynamic system remains applicable to the former Members of the European Parliament concerned after the entry into force of the Statute for Members is not invalidated, contrary to what the appellant claims, either by paragraph 2 of that provision, or by recital 7 of those implementing measures, or by Article 28 of the Statute for Members.
75 First, as regards, the first sentence of Article 75(2) of the Implementing Measures, that provision provides that ‘the old-age pension rights acquired prior to the date of entry into force of the Statute [for Members] pursuant to [Annex III to the PEAM Rules] shall be maintained’.
76 However, contrary to what the appellant claims, no guarantee can be inferred from that provision as regards the payment of a retirement pension calculated on the basis of the rules for calculating national pensions applicable on the date of entry into force of the Statute for Members.
77 In that regard, it should be noted that the Statute for Members and the Implementing Measures established two successive pension schemes involving two types of pension rights, namely, on the one hand, retirement pension rights acquired prior to 14 July 2009, the date on which that statute entered into force, on the basis of the Parliament’s internal rules, and, on the other hand, old-age pension rights acquired since that date, on the basis of Article 49 of the Implementing Measures.
78 In that context, Article 75(1) of the Implementing Measures applies, as the General Court found in paragraph 50 of the judgment under appeal, to former Members of the European Parliament, including the appellant, who paid contributions into the EU budget under Article 2(2) of Annex III to the PEAM Rules and had begun to receive a pension in accordance with that annex prior to the entry into force of the Statute for Members, whereas Article 75(2) of the Implementing Measures applies to former Members of the European Parliament who, while they too had paid such contributions, had not yet begun to receive a retirement pension on the date on which the Statute for Members entered into force.
79 In accordance with the second sentence of Article 75(2) of the Implementing Measures, ‘persons who have acquired rights under [Annex III to the PEAM Rules] shall receive a pension calculated on the basis of their acquired rights pursuant to [that annex] as soon as they meet the relevant conditions laid down by the national law of the Member State concerned and they have submitted the application referred to in Article 3(2) of the aforementioned Annex III’.
80 In so far as the second sentence of Article 75(2) of the Implementing Measures lays down conditions which former Members of the European Parliament must meet in order to receive a pension calculated on the basis of their acquired rights pursuant to Annex III to the PEAM Rules, that provision is not intended to apply to former Members of the European Parliament who began to receive a pension pursuant to that annex before the Statute for Members entered into force, such as the appellant.
81 Furthermore, in so far as the second sentence of Article 75(2) of the Implementing Measures provides that the former Members of the European Parliament concerned are to receive an old-age pension pursuant to Annex III to the PEAM Rules on the basis of rights acquired under those rules, the concept of ‘acquired retirement pension rights’ for the purposes of Article 75(2) of that regulation must be understood as referring to the pension rights resulting from the contributions paid by each former Member of the European Parliament concerned and which form the basis for the calculation of the retirement pension paid to him or her under Article 2(1) of Annex III to the PEAM Rules. That concept therefore cannot be understood as referring to an alleged right to receive a fixed and immutable retirement pension amount calculated on the basis of the national rules in force at the time the Statute for Members entered into force or at the time of joining the scheme established by that provision.
82 As regards, next, recital 7 of the Implementing Measures, that recital states, first, that ‘persons in receipt of certain benefits under the PEAM Rules [must be able to] continue to receive them after those rules have been repealed, in keeping with the principle of [the protection of] legitimate expectations.’ and, second, that ‘steps should also be taken to guarantee maintenance of the pension rights acquired on the basis of the PEAM Rules prior to the entry into force of the Statute’.
83 It follows from that recital that it states that the benefits granted under those rules are to continue to be paid, without its being possible to infer therefrom that those rules would cease to apply after that date.
84 Thus, the concept of ‘acquired pension rights’ has the same scope in that recital as in Article 75(2) of the Implementing Measures, as set out in paragraph 81 above.
85 The guarantee provided for in Article 75 of the Implementing Measures, according to which the former Members of the European Parliament concerned who paid contributions under the pension scheme established by the PEAM Rules continue to benefit from that scheme and the right to have the amount of their retirement pension determined in accordance with the dynamic system, contributes to the achievement of the objective of the protection of legitimate expectations.
86 It was in that context of examining the Parliament’s internal rules that the General Court was able to find, in paragraph 57 of the judgment under appeal, without erring in law, that the Parliament’s internal rules expressly require the Parliament to apply, at all times, the same rules relating to the level and conditions of pensions as those laid down by the law of the Member State concerned.
87 As regards, lastly, Article 28 of the Statute for Members, it should be noted that, in paragraph 62 of the judgment under appeal, the General Court did not err in law when it held that that provision applies only to the pension rights acquired by former Members of the European Parliament not under Annex III to the PEAM Rules, but under national pension arrangements, as is apparent from the very wording of that provision. As such, it has no effect, contrary to what the appellant claims, on the interpretation of Article 75(1) of the Implementing Measures.
88 In addition, the fact that the rights acquired under national pension arrangements are maintained pursuant to Article 28 of the Statute for Members on the date of application of that statute does not, contrary to what the appellant claims, introduce different treatment to the detriment of the former Members of the European Parliament concerned the amount of whose retirement pension may be altered under the dynamic system. It is apparent only from Article 28 of the Statute for Members that the adoption of that statute does not affect the pension rights acquired by former Members of the European Parliament under national pension arrangements, and not that Member States are prohibited from amending the rules for calculating retirement pensions provided under those schemes.
89 Consequently, it is clear from the wording, context and purpose of the Parliament’s internal rules that, in paragraph 67 of the judgment under appeal, the General Court was entitled to hold, without erring in law, that the Parliament was entitled to rely on its internal rules in order to apply the dynamic system to the former Members of the European Parliament concerned.
90 The first ground of appeal must therefore be rejected as in part unfounded and in part ineffective.
91 The second ground of appeal essentially comprises two parts.
92 By the first part, the appellant submits that, for the reasons which he set out in the context of the first ground of appeal, the General Court incorrectly held, in paragraphs 94 to 98 of the judgment under appeal, that the Parliament had not infringed the principle of the protection of legitimate expectations on the ground that it had not given the appellant any assurances other than those contained in Article 75 of the Implementing Measures and Article 2(1) of Annex III to the PEAM Rules.
93 By the second part, the appellant submits that the General Court infringed the principle of proportionality in paragraphs 100 to 110 of the judgment under appeal.
94 First, he claims that, in paragraph 110 of the judgment under appeal, the General Court was wrong to verify whether the decision at issue complied with that principle in the light, not of the principle of the protection of legitimate expectations as resulting from the Implementing Measures, but of the Italian Republic’s objective of reducing public expenditure on account of a serious economic crisis. According to the appellant, since his pension is paid from the EU budget and not from that of that Member State, such an objective cannot be relied on in order to reduce the amount of his pension.
95 Second, he argues that the General Court incorrectly held that the proportionality of the decision at issue is ensured because Decision No 14/2018 contains ‘a number of provisions ensuring its proportionality, in particular Article 1(6) and (7) of [the latter] decision’. A judgment of the Judicial Council of the Chamber of Deputies annulled Article 1(7) of Decision No 14/2018, on the ground that that provision is not sufficient to compensate for the disproportionate harm caused by that decision.
96 Third, the appellant submits that it is clear that the reduction in the amount of his retirement pension is disproportionate and excessive, since the decision at issue reduced that pension from EUR 3 108.58 to EUR 1644.
97 The Parliament contends that the second ground of appeal must be rejected as unfounded.
98 By the first part of his second ground of appeal, the appellant claims, in essence, that the application of new rules for calculating the amount of his retirement pension does not comply with the principle of the protection of legitimate expectations, since the Parliament’s internal rules seek to ensure that the rules for calculating the pensions of the former Members of the European Parliament concerned will not be altered.
99 By such a complaint, the appellant disputes, in essence, the soundness of the interpretation of the Parliament’s internal rules, pursuant to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
100 By the second part of that ground of appeal, the appellant disputes the possibility of taking into account, in the examination of the lawfulness of the decision at issue, the objectives of Decision No 14/2018 and the guarantees which that decision contains as regards the proportionality of the reduction in the amount of the retirement pension.
101 That complaint concerns the soundness of the General Court’s interpretation of the Parliament’s internal rules to the effect that those rules must lead to adjustments to the pensions of former Members of the European Parliament taking into account the objectives of the national pension schemes and the guarantees provided by those schemes.
102 It follows that the merits of the second ground of appeal must be examined.
103 It must be borne in mind that, in accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, if the wording of secondary EU legislation is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with primary law rather than to the interpretation which leads to its being incompatible with primary law (judgment of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 86 and the case-law cited).
104 It is therefore necessary to examine whether the interpretation of the Parliament’s internal rules, according to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned, which led to the adoption of the decision at issue, is consistent with the principle of the protection of legitimate expectations.
105 In accordance with the case-law of the Court of Justice, a person may not validly plead infringement of that principle unless the administration has given that person precise assurances. Any person to whom an institution has given justified hopes may rely on the principle of the protection of legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes (see, to that effect, judgment of 23 January 2019, Deza v ECHA, C‑419/17 P, EU:C:2019:52, paragraphs 69 and 70 and the case-law cited).
106 By contrast, if a prudent and alert person can foresee the adoption of an EU measure likely to affect his or her interests, that person cannot plead the principle of protection of legitimate expectations if that measure is adopted (see, to that effect, judgment of 23 January 2019, Deza v ECHA, C‑419/17 P, EU:C:2019:52, paragraph 71 and the case-law cited).
107 In that regard, first, it should be noted that it is apparent from paragraphs 63 to 89 above that the Parliament’s internal rules guarantee to the former Members of the European Parliament concerned only the benefit of a pension, the level and conditions of which are identical to those of the pension received by members of the parliament of the Member State in which they were elected.
108 Second, in paragraph 96 of the judgment under appeal, the General Court found that the appellant had neither demonstrated nor claimed that the Parliament had given him assurances other than those contained in those provisions.
109 The mere fact that the appellant joined the pension scheme established by Article 2(1) of Annex III to the PEAM Rules does not entitle him to receive a retirement pension that is foreseeable, fixed and immutable when joining that scheme. As the General Court correctly held in paragraph 97 of the judgment under appeal, the only precise and unconditional assurance which the Parliament was in a position to give to him was the assurance that, under its internal rules, he would receive a retirement pension, the level and conditions of which would be identical to those applicable to members of the parliament of the Member State in which he was elected, in accordance with the dynamic system.
110 It follows that the interpretation of the Parliament’s internal rules, to the effect that the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned, is consistent with the principle of the protection of legitimate expectations.
111 Consequently, the first part of the second ground of appeal, must be rejected as unfounded.
112 As regards the second part of this ground of appeal, it should be noted that, in so far as the interpretation of the Parliament’s internal rules, to the effect that it is required to apply the dynamic system to the former Members of the European Parliament concerned, is liable to lead to a reduction in the amount of a pension having an effect on the quality of life of the person concerned, that interpretation may lead to a restriction of the right to property enshrined in Article 17 of the Charter (see, by analogy, ECtHR, 1 September 2015, Da Silva Carvalho Rico v. Portugal, CE:ECHR:2015:0901DEC001334114, § 33).
113 The right to property is not absolute and its exercise may thus be subject to restrictions, provided, inter alia, that they are justified by objectives of general interest pursued by the European Union (see, to that effect, judgment of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 51 and the case-law cited).
114 Under Article 52(1) of the Charter, any limitation on the right to property enshrined in Article 17 thereof is compatible with that provision if it is provided for by law, it respects the essence of the right to property and, subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
115 It must be held that the application of the dynamic system to former Members of the European Parliament in the situation referred to in Article 1(2) of Annex III to the PEAM Rules pursues an objective of general interest recognised by the European Union, in so far as it is intended, as is apparent from paragraph 53 above, to treat in the same way, first, Members of the European Parliament whose pension scheme in the Member State in which they were elected did not provide for a pension, or where the level of and/or conditions for calculating the pension were not identical to those applicable to members of the national parliament and, second, Members of the European Parliament whose national pension scheme provided for such a level of and/or conditions for calculating the pension identical to those applicable to members of the national parliament.
116 By contrast, the objectives pursued by Decision No 14/2018, applicable to the former Members of the European Parliament concerned under the dynamic system, are purely national in nature. As such, they are not, therefore, capable of justifying a reduction in the pension amount, since those sums are paid under a pension scheme established not under national law, but under EU law, and are charged to the EU budget.
117 Accordingly, the General Court was wrong, in paragraphs 102 to 108 of the judgment under appeal, to take into consideration the objectives pursued by that national decision for the purpose of examining whether the adverse effect on the appellant’s right to property, brought about by the decision at issue, was justified.
118 It must be borne in mind, however, that, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement cannot lead to the setting aside of that judgment, and a substitution of grounds must be made and the appeal dismissed (judgment of 14 December 2023, Commission v Amazon.com and Others, C‑457/21 P, EU:C:2023:985, paragraph 51 and the case-law cited).
119 It is therefore necessary to ascertain whether the rejection of the complaint alleging infringement of the right to property enshrined in Article 17 of the Charter is shown to be well founded on legal grounds other than those vitiated by the error identified in paragraph 117 above.
120 In that regard, it should be noted that the application of the dynamic system to the former Members of the European Parliament concerned does indeed meet the objective of equal treatment established in paragraph 115 above, since it has the effect that the two categories of Members of the European Parliament referred to in that paragraph are subject, at all times, to the national rules relating to the calculation of the retirement pensions of members of the parliament of the Member State concerned.
121 That application was, moreover, necessary in order to achieve that objective, since only an alignment of the level of and/or method for calculating the pension such as that provided for in Article 2(1) of Annex III to the PEAM Rules, read in conjunction with Article 1(2) of that annex, could lead to equal treatment between those categories of Members of the European Parliament.
122 It is thus apparent that, notwithstanding the error of law identified in paragraph 117 above, the rejection of the complaint alleging infringement of the right to property enshrined in Article 17 of the Charter is well founded, with the restriction of the right to property at issue satisfying all the conditions laid down in Article 52(1) of the Charter.
123 It follows from the foregoing that the second ground of appeal is unfounded.
124 By his third ground of appeal, the appellant criticises the General Court for finding, in paragraph 43 of the judgment under appeal, that the assessment of the legality of Decision No 14/2018 falls outside the jurisdiction of the Courts of the European Union. According to the appellant, since the Parliament’s internal rules refer to national schemes, such a scheme cannot be applied by the Parliament without prior verification of its legality.
125 Only such verification, at EU level, of the legality of the national scheme would ensure respect for the right to an effective remedy, since in Italy the appellant, as a former Member of the European Parliament who has never been a member of the Italian Chamber of Deputies, has no opportunity to challenge that legality, given that the national scheme is not formally applicable to him.
126 In addition, it is apparent from a number of publications from national experts that the most recent reform of the pensions of members of the Italian Parliament results in a system without any actuarial basis, which undermines their legitimate expectations and the stability of the amount of their retirement pension, in breach of the principle of the protection of legitimate expectations.
127 The Parliament maintains that the third ground of appeal should be rejected as in part inadmissible and in part unfounded.
128 By the third ground of appeal, the appellant disputes that the Parliament’s internal rules can be interpreted as meaning that a national pension scheme may automatically be applied by the Parliament to its former Members, without verification by the Parliament of the legality of that national scheme.
129 This ground of appeal thus concerns the interpretation of the Parliament’s internal rules and must therefore be examined as to its substance.
130 As is apparent from the examination of the first ground of appeal, the General Court was fully entitled to hold, in paragraphs 54 and 57 of the judgment under appeal, that the Parliament was required to apply to the appellant the same rules relating to the level and conditions of pensions as those laid down by Italian law.
131 The General Court was also right to state, in those same paragraphs, that the Parliament can be released from that obligation where such application would lead to a breach of a higher-ranking rule of EU law, such as a general principle of EU law or a provision of the Charter.
132 It is for the Parliament to ensure that the application of its internal rules, consisting of adjusting the pensions of its former Members in the light of changes in national schemes, does not conflict with the general principles of EU law or with the Charter. The Parliament must therefore refrain from making such an adjustment if it is incompatible with EU law.
133 While it follows from the foregoing that the Parliament could not automatically, without having regard to the general principles of EU law and the Charter, apply Decision No 14/2018 to its former Members, it does not follow that it was for the Parliament to examine the legality of that decision.
134 In that regard, the General Court correctly held, in paragraph 73 of the judgment under appeal, that the examination of the legality of that decision under Italian law is reserved to the competent Italian authorities. The Parliament’s obligation, referred to in the preceding paragraph, is not to examine the legality of national pension schemes but to ensure that the application of its own internal rules, consisting of adjusting the pensions of former Members of the European Parliament on the basis of such a national scheme, is compatible with EU law.
135 It follows that the third ground of appeal is unfounded.
136 By the fourth ground of appeal, the appellant submits that, following the judgment of the Judicial Council of the Chamber of Deputies referred to in paragraph 95 above, a former member of the national parliament may request, inter alia, a review of the amount of his or her retirement pension in specific but rather imprecise situations, namely in the event of the person’s invalidity, where he or she has to take medicines necessary for his or her survival, where he or she has no other significant resources, or if he or she can show that the review of the amount of his or her retirement pension pursuant to Decision No 14/2018 has led to a serious deterioration in his or her living conditions. Such a system, which presupposes that an investigation has been carried out into the personal situation of the person concerned, cannot be transposed at EU level, which the General Court did not take into account.
137 The Parliament contends that the fourth ground of appeal is inadmissible.
138 In support of his fourth ground of appeal, the appellant puts forward a claim which relates solely to the decision at issue and has no bearing on the soundness of the interpretation of the Parliament’s internal rules, according to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
139 There is therefore no need to examine the fourth ground of appeal.
140 The fifth ground of appeal is divided into three parts.
141 By the first part, the appellant submits that, contrary to what the General Court held in paragraphs 112 to 119 of the judgment under appeal, the draft decision and the Opinion of the Legal Service must be annulled because they are challengeable acts which adversely affect him.
142 By the second part, the appellant submits that, contrary to what the General Court held in paragraphs 120 to 122 of the judgment under appeal, the recovery of sums unduly withheld in the event of success of the action cannot be equated with directions issued to the EU institutions, over which the General Court has no jurisdiction.
143 By the third part of that ground of appeal, the appellant challenges the decision of the General Court on costs.
144 None of the parts of the fifth ground of appeal raised by the appellant seeks to criticise, even indirectly, the soundness of the interpretation of the Parliament’s internal rules, according to which the Parliament is required to apply the dynamic system to the former Members of the European Parliament concerned.
145 Consequently, there is no need to examine the fifth ground of appeal.
146 Since all the grounds of appeal put forward by the appellant in support of his appeal have been rejected, the appeal must be dismissed in its entirety.
147 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court shall make a decision as to the costs. 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.
148 Since the appellant has been unsuccessful and the Parliament has applied for costs, the appellant must be ordered to bear his own costs and to pay those incurred by the Parliament.