Judgments nº T-432/18 of Tribunal General de la Unión Europea, October 16, 2019

• Resolution Date: October 16, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-432/18

(Civil service - Members of the temporary staff - Pensions - Pension scheme - Severance grant - Article 12(2) of Annex VIII to the Staff Regulations - Principles of equal treatment and non-discrimination - Legitimate expectations - Principle of good administration - Duty of care)

In Case T-432/18,

Peeter Palo, former member of the temporary staff of the European Union Agency for Law Enforcement Cooperation (Europol), residing in Tallinn (Estonia), represented by L. Levi and A. Blot, lawyers,

applicant,

v

European Commission, represented by B. Mongin and D. Milanowska, acting as Agents,

defendant,

APPLICATION based on Article 270 TFEU seeking, first, annulment of the Commission’s decision of 5 October 2017 not to pay the applicant the severance grant provided for in Article 12(2) of Annex VIII to the Staff Regulations of Officials of the European Union, in the version resulting from 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 (OJ 2013 L 287, p. 15), and annulment of the Commission’s decision of 10 April 2018 rejecting the applicant’s complaint against that decision and, secondly, compensation for the material and non-material damage allegedly suffered by the applicant following those decisions.

THE GENERAL COURT (Second Chamber),

composed of F. Schalin, acting as President, B. Berke and M.J. Costeira (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 6 May 2019,

gives the following

Judgment

Background to the dispute

1 The applicant, Mr Peeter Palo, was a member of the temporary staff of the European Agency for Law Enforcement Cooperation (Europol) from 1 December 2010 to 31 August 2017.

2 On 19 June 2017, the applicant requested a severance grant under Article 12(2) of Annex VIII to the Staff Regulations of Officials of the European Union, in its version resulting from 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 (OJ 2013 L 287, p. 15, ‘the Staff Regulations’). For that purpose, the applicant submitted a form entitled ‘Personal Statement - Derogation under Article 12(2) of Annex VIII [to the Staff Regulations]’ in which, first, he declared that, since taking up his duties at Europol, and in order to establish or maintain his pension rights, he had paid into a private insurance scheme and, secondly, he requested that the actuarial equivalent of his pension rights acquired under the pension scheme of the European Union institutions (‘PSEUI’) be paid directly into his bank account. The applicant attached to that form an attestation issued by the private insurance company concerned certifying that he had paid the company an amount of EUR 14 200 for the period from 1 November 2010 to 31 August 2017. On 19 September 2017, the applicant indicated to the Office for Administration and Payment of Individual Entitlements (PMO) of the European Commission that, on 1 December 2014, he had concluded another insurance contract with that company in which contributions should amount to EUR 87 460.

3 By decision of 5 October 2017, the Commission rejected the applicant’s request (‘the contested decision’). In that decision, the PMO stated, inter alia, that the aim of the system established in Article 12 of Annex VIII to the Staff Regulations was to privilege the constitution of a pension, as a regular future revenue, and to avoid situations where persons would find themselves without sufficient revenue at the age of retirement and would have to appeal to the social assistance of the Member States. The PMO also stated that, from that perspective, the payments made into a national pension scheme or a private insurance scheme, pursuant to Article 12(2) of that annex, ‘in order to establish or maintain pension rights’, had to correspond with the amount of pension contributions which should be expected to be paid under a national pension scheme or which had actually been paid to the PSEUI during the same period, and therefore the future revenue guaranteed by those payments had to be consistent with the payments ensured through the transfer of the pension rights acquired under the PSEUI. In that regard, the PMO noted that the amount of the payments made into the private insurance scheme (EUR 14 200) was clearly not consistent with the amount of the contributions paid to the PSEUI (EUR 65 334.95), and therefore it could in no way provide the applicant with an income equivalent to that which he would have been able to acquire on the basis of the actuarial equivalent of his pension rights acquired under the PSEUI. Lastly, the PMO stated that the applicant did however satisfy the conditions for a transfer to another scheme, under Article 12(1)(b) of that annex, which implied that the pension rights which he had acquired with the European Union during his period of employment with Europol are transferred to a national pension scheme or a private insurance scheme or a pension fund of his choice, in accordance with the conditions laid down by that provision.

4 On 11 December 2017, the applicant lodged a complaint against that decision, pursuant to Article 90(2) of the Staff Regulations.

5 By decision of 10 April 2018, the authority empowered to conclude contracts (‘the AECE’) of the Commission rejected that complaint. In that decision, the AECE, in essence, upheld the contested decision by essentially reproducing the same reasoning as that provided by the PMO. The AECE, moreover, considered that the second insurance contract concluded by the applicant, on 1 December 2014, could not be taken into account for the purposes of applying Article 12(2) of Annex VIII to the Staff Regulations since it had not been concluded ‘since taking up [his] duties’ at Europol. The AECE, finally, rejected the applicant’s arguments based on the principle of equal treatment, the principle of good administration and the principle of the protection of legitimate expectations.

Procedure and forms of order sought

6 By application lodged at the Registry of the General Court on 13 July 2018, the applicant brought the present action.

7 The Commission lodged its defence at the Registry of the General Court on 2 October 2018.

8 The applicant claims that the Court should:

- annul the contested decision;

- annul the decision rejecting the complaint;

- order the Commission to pay compensation for the material damage suffered;

- order the Commission to pay compensation for the non-material damage suffered;

- order the Commission to pay the costs.

9 The Commission contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

The claims for annulment of the contested decision

10 As a preliminary point, it should be noted that the applicant claims that the Court should annul the contested decision and annul the decision rejecting the complaint. In that regard, it should be borne in mind that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have, where that decision lacks any independent content, the effect of bringing before the Court the act against which the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). Since the decision rejecting the complaint lacks any independent content, the action must be regarded as being directed against the contested decision.

11 In support of his claims for annulment directed against the contested decision, the applicant raises four pleas in law. The first plea alleges an infringement of Article 12(2) of Annex VIII to the Staff Regulations. The second plea concerns the infringement of the principles of equal treatment and non-discrimination. The third plea concerns the infringement of the principle of the protection of legitimate expectations. The fourth plea alleges an infringement of the principle of good administration and of the duty of care.

The first plea, alleging infringement of Article 12(2) of Annex VIII to the Staff Regulations

12 The applicant submits that he was entitled to rely on Article 12(2) of Annex VIII to the Staff Regulations since he satisfied all of the conditions for it to apply set out therein. It follows that, by refusing to award him the severance grant he had requested, the contested decision infringes that provision.

13 In particular, the applicant disputes the ‘consistency criterion’ invoked by the Commission, in accordance with which the coverage provided by the pre-existing pension scheme must be at least comparable to that offered by the PSEUI. That criterion does not appear anywhere in Article 12(2) of Annex VIII to the Staff Regulations, which was confirmed by the Executive Director of Europol in a letter dated 26 February 2018 which was addressed to, inter alia, the Director-General of the Directorate-General (DG) for ‘Human Resources and Security’ of the Commission. Moreover, that criterion has not been clarified or quantified in any way by the Commission, which makes it impossible to comply with.

14 Furthermore, the applicant submits that, even if it were accepted that the ‘consistency criterion’ might be deduced from Article 12(2) of Annex VIII to the Staff Regulations and that a teleological interpretation of that provision would require the contributions paid to a private pension scheme to be ‘consistent’ with those paid to the PSEUI ‘in order to establish or maintain pension rights’, which is not the case here, the contested decision does not state what that level of consistency should be, thus infringing the requirements of legal certainty. In...