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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> OA v Parliament (Appeal – Civil service – Staff Regulations of Officials – EU pension scheme - Judgment) [2025] EUECJ C-32/24P (27 February 2025) URL: http://www.bailii.org/eu/cases/EUECJ/2025/C3224P.html Cite as: ECLI:EU:C:2025:118, [2025] EUECJ C-32/24P, EU:C:2025:118 |
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JUDGMENT OF THE COURT (Eighth Chamber)
27 February 2025 (*)
( Appeal – Civil service – Staff Regulations of Officials – EU pension scheme – Article 77, third subparagraph – Scope of application – Accredited parliamentary assistant who has spent his entire professional career in the European Parliament – Interpretation consistent with the principles of equal treatment and non-discrimination – Principle of the protection of legitimate expectations )
In Case C‑32/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 January 2024,
OA, represented by F. Regaldo, avocat, and G. Rossi, avvocato,
appellant,
the other party to the proceedings being:
European Parliament, represented by D. Boytha, M.J. Mão Cheia Carreira and R. Schiano, acting as Agents,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of S. Rodin, President of the Chamber, O. Spineanu-Matei (Rapporteur) and N. Fenger, Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its appeal, OA seeks to have set aside the judgment of the General Court of the European Union of 8 November 2023, OA v Parliament (T‑39/22, ‘the judgment under appeal’, EU:T:2023:709), by which the General Court dismissed his action seeking, first, annulment, inter alia, of the decision of the European Parliament of 19 April 2021 by which the latter rejected the request which he had submitted under Article 90(1) of 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 (OJ 2013 L 287, p. 15) (‘the Staff Regulations’), and which related to certain elements of his pension rights (‘the contested decision’) and, second, compensation for the damage which he claims to have suffered as a result of the Parliament’s breach of the principle of the protection of legitimate expectations.
Legal context
The Staff Regulations
2 Article 1d(1) of the Staff Regulations states:
‘In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.
…’
3 Title V of the Staff Regulations is entitled ‘Emoluments and social security for officials’. Article 77 of the Staff Regulations, which is in Chapter 3, itself entitled ‘Pensions and invalidity allowance’, of Title V, provides:
‘An official who has completed at least years’ service shall be entitled to a retirement pension. He shall, however, be entitled to such pension, irrespective of length of service, if he is over pensionable age, if it has not been possible to reinstate him during a period of non-active status or in the event of retirement in the interests of the service.
The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year. 1.80% of that final basic salary shall be payable to an official for each year of service reckoned in accordance with Article 3 of Annex VIII.
However, in the case of officials who have been assisting a person holding an office provided for in the [TUE] or the [TFEU], the elected President of one of the institutions or organs of the [European] Union or the elected Chairman of one of the political groups in the European Parliament, the entitlement to pensions corresponding to the years of pensionable service acquired while working in that capacity shall be calculated by reference to the final basic salary received during that time if the basic salary received exceeds that taken as reference for the purposes of the second paragraph of this Article.
…’
4 Article 2 of Annex VIII to the Staff Regulations, entitled ‘Pension scheme’, is worded as follows:
‘A retirement pension shall be payable on the basis of the total number of years of pensionable service acquired by the official. Each year of service reckoned as provided in Article 3 shall entitle him to one year of pensionable service and each complete month to one-twelfth of a year of pensionable service.
The maximum number of years of pensionable service which may be taken into account for the calculation of retirement pension rights shall be the number necessary to achieve the maximum pension, within the meaning of the second paragraph of Article 77 of the Staff Regulations.’
5 Article 3 of Annex VIII to the Staff Regulations reads:
‘Provided that the servants concerned have paid their shares of the pension contributions in respect of the periods of service concerned, the following shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2:
(a) the period of service as an official of one of the institutions in one of the administrative statuses set out in Article 35(a), (b), (c), and (e) and (f) of the Staff Regulations. However, officials covered by Article 40 of the Staff Regulations shall be subject to the conditions laid down in the last sentence of the second subparagraph of paragraph 3 thereof;
(b) periods of entitlement to the allowance under Articles 41, 42c and 50 of the Staff Regulations, up to a maximum of five years;
(c) periods of entitlement to an invalidity allowance;
(d) periods of service in any other capacity in accordance with the Conditions of Employment of other servants. However, where members of the contract staff within the meaning of those Conditions of Employment become officials, the years of pensionable service they have acquired as members of the contract staff shall, up to the number of years of actual service, entitle them to a number of years of pensionable service as officials calculated on the basis of the ratio between the last basic salary received as a member of the contract staff and the first basic salary received as an official. The surplus contributions, if any, corresponding to the difference between the number of years of pensionable service calculated and the number of years of actual service, shall be reimbursed to the person concerned on the basis [of] the last basic salary received as a member of the contract staff. This provision shall, with the necessary changes, apply where officials become members of the contract staff.’
CEOS
6 Article 1 of the Conditions of Employment of Other Servants of the European Union, in the version resulting from Regulation No 1023/2013 (‘the CEOS’), provides:
‘These Conditions of Employment shall apply to servants engaged under contract by the Union. Such servants shall be:
…
– accredited parliamentary assistants.
…’
7 Article 5a of the CEOS provides:
‘For the purposes of these Conditions of employment, “accredited parliamentary assistants” means persons chosen by one or more Members and engaged by way of direct contract by the European Parliament to provide direct assistance, in the premises of the European Parliament at one of its three places of work, to the Member or Members in the exercise of their functions as Members of the European Parliament, under their direction and authority and in a relationship of mutual trust deriving from the freedom of choice referred to in Article 21 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)].’
8 Title IV of the CEOS contains the provisions of those conditions of employment relating to contract staff. Article 109(1) of the CEOS, which forms part of those provisions, is worded as follows:
‘On leaving the service, contract staff shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of a severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. …’
9 Title VII of the CEOS is entitled ‘Parliamentary assistants’. Article 135 of the CEOS, which is in Chapter 6, entitled ‘Social security benefits’, of Title VII, provides:
‘Save as otherwise provided in Article 136, Articles 95 to 115 (social security) shall apply by analogy.’
Background to the dispute
10 Between 2010 and 2021, OA worked as an accredited parliamentary assistant (‘APA’) at the Parliament under several contracts. After having been classified successively in grades 18, 15 and 16, he was classified, under his last two contracts, respectively in grade 4 for more than a year and in grade 13 for less than a year before ceasing to work for the Parliament.
11 On 25 March 2021, OA submitted a request under Article 90(1) of the Staff Regulations for a formal decision to be taken on certain information relating to his pension rights. In particular, he asked the Parliament to confirm that the amount of his pension would be calculated on the basis of the average of all salaries received between 23 June 2010 and 31 March 2021.
12 On 19 April 2021, the Parliament adopted the contested decision, by which it rejected OA’s request of 25 March 2021. In particular, it stated that the last basic salary to be taken into account for the calculation of his retirement pension was that received in grade 4, since it was the last grade at which OA had been classified for more than a year before leaving the service of the Parliament.
13 On 4 June 2021 OA lodged a complaint under Article 90(2) of the Staff Regulations against that decision. That complaint was rejected by the Parliament by decision of 20 October 2021 (‘the decision on the complaint’).
The action before the General Court and the judgment under appeal
14 By application lodged at the Registry of the General Court on 19 January 2022, OA brought an action seeking, first, annulment of the contested decision and, second, compensation for the damage which he claimed to have suffered as a result of the Parliament’s alleged breach of the principle of the protection of legitimate expectations.
15 By the judgment under appeal, the General Court dismissed OA’s action. As regards his application for annulment of the contested decision, the General Court held, in paragraphs 57 and 58 of that judgment, that Article 77 of the Staff Regulations does not provide for a method of calculation according to which the amount of the retirement pension is calculated by taking into account, as OA claimed, the average salary earned throughout his career. It also held, in paragraphs 59 and 60 of that judgment, that the third paragraph of Article 77 of the Staff Regulations does not apply to an APA such as OA and that the Staff Regulations do not provide for any link of proportionality between the amount of the retirement pension and the social security contributions paid throughout the official’s professional career. Furthermore, in paragraphs 67 to 69 of that judgment, it held, in essence, that the rule that the amount of the pension is determined on the basis of the last basic salary, as set out in the second paragraph of Article 77 of the Staff Regulations, was indeed applicable to APAs.
16 As regards his action for damages, the General Court held, in paragraphs 78 to 83 of the judgment under appeal, that the information provided to OA by the Parliament concerning his pension rights did not contain precise, unconditional and consistent assurances, so that the principle of legitimate expectations had not been breached by that institution.
Forms of order sought and procedure before the Court
17 By his appeal, OA claims that the Court of Justice should:
– set aside the judgment under appeal and, consequently, annul the contested decision and, in part, the decision on the complaint;
– in the event that the Court does not annul those decisions, order the Parliament to pay compensation for the damage caused to him; and
– order the Parliament to pay the costs of the proceedings at both instances.
18 The Parliament claims that the Court should:
– dismiss the appeal in its entirety; and
– order OA to pay the costs.
The appeal
19 The appellant puts forward five grounds in support of his appeal. The first ground of appeal alleges that the General Court erred in law by distorting the arguments put forward by OA in the context of the sixth plea in his action at first instance and by thus failing to respond correctly to those arguments. The second ground of appeal alleges that the General Court adopted an incorrect and discriminatory interpretation of the third paragraph of Article 77 of the Staff Regulations. The third ground of appeal alleges that the General Court did not properly understand the EU pension scheme. The fourth ground of appeal alleges that the General Court erred in law in its interpretation of the second paragraph of Article 77 of the Staff Regulations. The fifth ground of appeal alleges that the General Court erred in law in its application of the principle of the protection of legitimate expectations.
The first ground of appeal
Arguments of the parties
20 By his first ground of appeal, OA submits, in essence, that the considerations set out in paragraphs 57 and 58 of the judgment under appeal are based on a misreading of the arguments which it had raised in the context of the sixth plea in his action at first instance and which were not correctly reported by the General Court in the heading preceding paragraph 51 of that judgment and in paragraph 56 of that judgment. OA claims that, by that sixth plea, he claimed not that his retirement pension should be calculated by taking into account the average salary received throughout his career at the Parliament, but that the ‘pro rata rule’ in the third paragraph of Article 77 of the Staff Regulations should be applied to him for the purposes of calculating his pension rights.
21 While disputing those arguments on the merits, the Parliament observes that OA relies, in his appeal, on an interpretation of the ‘pro rata rule’ provided for in the third paragraph of Article 77 of the Staff Regulations different from that which he put forward before the General Court. Therefore, by putting forward an entirely new interpretation of that rule at the appeal stage, the appellant is changing the subject matter of the dispute brought before the General Court, with the result that the first ground of appeal should be declared inadmissible.
Findings of the Court
– Admissibility of the first ground of appeal
22 In accordance with settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas and arguments debated before the General Court (judgment of 17 October 2024, PT Pelita Agung Agrindustri and PT Permata Hijau Palm Oleo v Commission, C‑112/23 P, EU:C:2024:899, paragraph 67 and the case-law cited).
23 In the present case, by his first ground of appeal, OA complains, in essence, that the General Court infringed its duty to state reasons by failing to respond to the argument, put forward at first instance, that the ‘pro rata rule’ in the third paragraph of Article 77 of the Staff Regulations should be applied to him for the purposes of calculating his pension rights. Thus, even if OA were to defend an interpretation of that provision different from that which he had put forward at first instance, the fact remains that he claims, independently of that interpretation, an infringement of the General Court’s duty to state reasons in relation to an argument raised at first instance, with the result that the subject matter of the dispute is not thereby altered and that the first ground of appeal is, therefore, admissible.
– Merits of the first ground of appeal
24 It should be borne in mind that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments put forward by the appellant, it being noted that the plea alleging that the General Court failed to address arguments relied on at first instance amounts essentially to alleging infringement of the duty to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and of Article 119 of the Rules of Procedure of the General Court (see, to that effect, judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraphs 58 and 59 and the case-law cited).
25 That duty to state the reasons on which judgments are based does not require the General Court to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit, on condition, however, that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal (see, to that effect, judgment of 7 March 2024, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, C‑725/22 P, EU:C:2024:217, paragraph 131 and the case-law cited).
26 In that regard, it should be noted that, in paragraphs 51 to 54 of the judgment under appeal, which were not disputed by OA at the appeal stage, the General Court summarised the arguments raised by OA in the context of the sixth plea in his action at first instance. Both in paragraph 51 and in paragraph 54 of that judgment, the General Court stated, inter alia, that, in the context of that sixth plea, OA claimed that the third paragraph of Article 77 of the Staff Regulations and, consequently, the ‘pro rata rule’ laid down by that provision had to be applied to him for the purposes of calculating his pension rights.
27 In paragraph 56 of the judgment under appeal, the General Court began its reasoning by pointing out that it was apparent from the case file that OA’s action sought ‘in substance’ to have the amount of his pension calculated on the basis of the average salaries received between 23 June 2010 and 31 March 2021. It was therefore in the light of that request made by OA in the context of his action before the General Court, as is moreover apparent from his second head of claim, referred to in paragraph 8 of the judgment under appeal, that the General Court sought, in paragraphs 57 and 58 of that judgment, to respond to the arguments raised by OA in the context of his sixth plea. It was also in the light of that head of claim that the heading of the sixth plea, preceding paragraph 50 of that judgment, was formulated.
28 That said, it is apparent from the judgment under appeal that the General Court took into account the argument that OA should benefit, at the very least, from the ‘pro rata rule’ provided for in the third paragraph of Article 77 of the Staff Regulations. In paragraph 59 of the judgment under appeal, the General Court examined whether that provision was applicable to a person in a situation such as that of OA. Having concluded that that was not the case, it implicitly considered that OA could not benefit from the ‘pro rata rule’ referred to in that provision, thus responding to the requisite legal standard to the argument put forward by OA in that regard, summarised in paragraph 54 of the judgment under appeal.
29 In those circumstances, the first ground of appeal must be rejected as being unfounded.
The second ground of appeal
Arguments of the parties
30 By his second ground of appeal, OA submits that, by holding, in paragraph 59 of the judgment under appeal, that the third paragraph of Article 77 of the Staff Regulations applies only to officials and other staff members who, during their professional career within the EU institutions, have performed different duties governed by different provisions of the Staff Regulations, the General Court adopted an interpretation of that provision which disregards both its letter and its spirit. First, its wording makes no reference to the performance of ‘different duties governed by different provisions of the Staff Regulations’. The third paragraph of Article 77 of the Staff Regulations is intended to apply to any official or other servant of the European Union who has assisted a person holding an office provided for by the EU Treaty or the FEU Treaty, such as a Member of the European Parliament.
31 Second, the interpretation adopted by the General Court distinguishes, without any basis, between APAs and other officials and other servants of the European Union, whereas, under the provisions of the CEOS, Article 77 of the Staff Regulations is applicable by analogy, in its entirety, to APAs. By making such a distinction, the General Court adopted an interpretation of the third paragraph of Article 77 of the Staff Regulations which discriminates against APAs in comparison to other EU staff members, in breach of the principle of equal treatment in employment enshrined in EU law. OA also points out that he had specifically raised the issue of discrimination during the pre-litigation procedure, but that the Parliament had not dealt with it.
32 The Parliament replies that the second ground of appeal is in part inadmissible in that, by that ground of appeal, OA maintains that the Parliament did not address, in the pre-litigation procedure, the question of breach of the principle of equal treatment. According to the Parliament, in so doing, the appellant criticises the contested decision, although it follows from the settled case-law of the Court of Justice that arguments in an appeal which criticise the decision in respect of which an application for annulment has been submitted to the General Court, rather than the decision handed down by the General Court following that application for annulment, are inadmissible. The Parliament also asks the Court of Justice to reject certain paragraphs of the appeal, on the ground that it is an abstract statement of a plea, unsupported by more precise information, which does not fulfil the duty to state the reasons for the appeal.
33 As to the substance, the Parliament disputes OA’s arguments.
Findings of the Court
– The admissibility of the second ground of appeal
34 It is apparent from the appeal that, by his second ground of appeal, OA criticises with sufficient clarity the interpretation of the third paragraph of Article 77 of the Staff Regulations adopted by the General Court in paragraph 59 of the judgment under appeal, on the ground, inter alia, that it drew a distinction between APAs and other officials and other servants of the European Union, in breach of the principles of equal treatment and non-discrimination. Furthermore, while it is true that OA points out that the Parliament did not, in the pre-litigation procedure, deal with the question of breach of the principle of non-discrimination, it must be stated that OA does not draw any legal conclusion from it or formally criticise the contested decision or the decision on the complaint, since his criticisms remain focused on the judgment under appeal. In those circumstances, the second ground of appeal is admissible in its entirety.
– Merits of the second ground of appeal
35 On the merits, with regard to OA’s argument summarised in paragraph 30 above, it should be recalled that the third paragraph of Article 77 of the Staff Regulations provides that, in the case of officials who have assisted a person holding an office provided for in the EU Treaty or in the FEU Treaty, the elected President of one of the institutions or organs of the European Union or the elected Chairman of one of the political groups in the Parliament, the entitlement to pensions corresponding to the years of pensionable service acquired while working in that capacity shall be calculated by reference to the final basic salary received during that time if the basic salary received exceeds that taken as reference for the purposes of the second paragraph of that article.
36 That ‘pro rata rule’ thus consists of calculating the pension rights corresponding to years of pensionable service acquired while working in one of the capacities referred to in the third paragraph of Article 77 of the Staff Regulations ‘by reference to the final basic salary received during that time’ where that salary received exceeds that which should normally be taken into consideration for the purposes of calculating the amount of the retirement pension under the second paragraph of Article 77 of the Staff Regulations, namely the ‘final basic salary carried by the last grade in which the official was classified for at least one year’ before leaving the service or retiring.
37 In paragraph 59 of the judgment under appeal, the General Court held that the personal scope of the third paragraph of Article 77 of the Staff Regulations was limited to officials and other servants of the European Union who, during their professional career within the institutions, performed different duties governed by different provisions of the Staff Regulations, and not to persons who, like OA, throughout their professional career, performed only the duties of an APA within the Parliament.
38 In that regard, it should be noted that the third paragraph of Article 77 of the Staff Regulations contains two cumulative conditions. First, that provision applies only to officials and, under the combined provisions of Articles 109 and 135 of the CEOS, to other servants of the European Union, such as APAs, who have assisted a person holding a mandate provided for by the EU Treaty or the FEU Treaty, the elected President of one of the institutions or organs of the European Union or the elected Chairman of one of the political groups in the Parliament. Second, the final basic salary received by the person concerned while working in one of those capacities must exceed that provided for in the second paragraph of Article 77 of the Staff Regulations.
39 However, APAs who, like OA, have spent their entire professional career in that post cannot, in any event, materially satisfy the second condition.
40 By definition, in the case of such an APA who has not worked in any other capacity within the EU institutions, the ‘final basic salary carried by the last grade in which [he] was classified for at least one year’, within the meaning of the second paragraph of Article 77 of the Staff Regulations, will automatically and necessarily correspond to the ‘final basic salary received [in his capacity]’ as an APA for at least one year, within the meaning of the third paragraph of Article 77 of the Staff Regulations. In other words, that second basic salary can never be higher than the first, so that the specific rule laid down in the third paragraph of Article 77 of the Staff Regulations cannot apply.
41 It follows that, in order for the final basic salary referred to in the third paragraph of Article 77 of the Staff Regulations not to be the same as the final basic salary referred to in the second paragraph of Article 77 of the Staff Regulations, the person concerned must have held different posts, one of which must have given rise, for at least one year, to a higher basic salary than that which he or she received for at least one year before leaving the service or retiring.
42 Consequently, in holding, in paragraph 59 of the judgment under appeal, that the scope of the third paragraph of Article 77 of the Staff Regulations is limited to officials and other servants who, during their professional career within the institutions, have performed different duties governed by different provisions of the Staff Regulations, the General Court did not err in law.
43 In adopting such an interpretation, the General Court also did not breach the principles of equal treatment and non-discrimination, contrary to what OA essentially maintains in the context of his arguments summarised in paragraph 31 above.
44 According to settled case-law, the principle of equal treatment and, as a specific expression of it, the principle of non-discrimination require that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. The comparability of different situations must be assessed with regard to all the elements that characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act that makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see, to that effect, judgments of 26 September 2013, IBV & Cie, C‑195/12, EU:C:2013:598, paragraphs 50 to 52 and the case-law cited; of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraphs 66 and 67 and the case-law cited; and of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others, C‑336/19, EU:C:2020:1031, paragraph 85 and the case-law cited).
45 In the present case, it suffices to note that neither APAs such as OA nor officials and other servants who, like such APAs, have held only one and the same post throughout their career in the European Union will be able to benefit from the ‘pro rata rule’ referred to in the third paragraph of Article 77 of the Staff Regulations, since none of those categories of persons can, for the reasons set out in paragraphs 40 and 41 above, satisfy the second condition laid down by that provision. Thus, it appears that those categories of persons, who are in comparable situations, are treated in the same way.
46 It follows that the second ground of appeal must be rejected as being unfounded.
The third ground of appeal
Arguments of the parties
47 In support of that ground of appeal, directed against paragraph 60 of the judgment under appeal, OA submits that the General Court erred in law in that paragraph in its analysis of the EU pension scheme. According to OA, although the amount of retirement pensions depends on the number of years of service, account must also be taken of the fact that contributions to the EU pension scheme are calculated on the basis of the salary received by the official or other servant of the European Union in question and that the pension rights are acquired for each year of service, on the basis of the contribution paid for each of those years by the staff member concerned. Thus, under Article 3(d) of Annex VIII to the Staff Regulations, when a member of the contract staff becomes an official, he or she is entitled to reimbursement of any surplus contribution that he or she has paid into the EU pension scheme. Furthermore, under the third paragraph of Article 77 of the Staff Regulations, the officials or other servants of the European Union concerned are entitled to a ‘pro rata calculation’ of the amount of their pension in the event of fluctuations in their salary. The General Court was therefore wrong to hold, in that paragraph of the judgment under appeal, that the pension rights of officials and other servants of the European Union were accumulated on the basis of their years of service, irrespective of the amount of their contributions to the EU pension scheme.
48 The Parliament disputes those arguments.
Findings of the Court
49 In paragraph 60 of the judgment under appeal, the General Court did not hold that the pension rights of officials and other servants of the European Union are accumulated solely on the basis of their years of service, irrespective of the amount of their contributions to the EU pension scheme.
50 In essence, it merely held, in response to an argument raised by OA in the sixth plea in law in his action at first instance, that the amount of the pensions is not linked proportionally to the amount of social contributions paid and that the retirement pension received by a former member of staff of the European Union does not constitute an exact counterpart for the total amount of his or her contributions to the EU pension scheme. As is apparent from the second paragraph of Article 77 of the Staff Regulations, read in conjunction with Articles 2 and 3 of Annex VIII thereto, pension rights are accumulated, irrespective of the amount of contributions paid, on the basis of years of service, that is to say, on the basis of the total number of years of pensionable service acquired by the member of staff concerned, and are calculated, for each year of pensionable service thus acquired, by reference to a percentage applied to the last basic salary corresponding to the last grade in which the member of staff concerned was classified for at least one year (see, to that effect, judgment of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 65). It follows that the General Court did not err in law in paragraph 60 of the judgment under appeal.
51 In those circumstances, the third ground of appeal must be rejected as unfounded.
The fourth ground of appeal
Arguments of the parties
52 By his fourth ground of appeal, directed against paragraphs 67 and 68 of the judgment under appeal, OA submits in particular that, in that paragraph 68, the General Court adopted an interpretation of the second paragraph of Article 77 of the Staff Regulations that is incompatible with the principle of non-discrimination. That interpretation would entail treating the situation of EU officials, who benefit from a linear progression in their careers, differently from that of APAs, who do not benefit from it. Moreover, in paragraph 68 of the judgment under appeal, the General Court openly acknowledged that incompatibility, given that it acknowledged that that provision does not take that difference into account when calculating the pension rights of APAs. According to OA, the General Court should therefore, in order to interpret Article 77 of the Staff Regulations in conformity with the principle of non-discrimination, have decided that the ‘pro rata rule’ provided for in the third paragraph of that article was applicable to APAs.
53 The Parliament contends that the fourth ground of appeal is inadmissible on the ground that OA does not explain how the General Court erred in law in paragraphs 67 and 68 of the judgment under appeal or how the second paragraph of Article 77 of the Staff Regulations should be interpreted in order to render the third paragraph of that article applicable to APAs.
54 On the substance, the Parliament disputes OA’s arguments.
55 In his reply, OA reiterates his arguments in support of that ground of appeal and maintains that it is admissible.
Findings of the Court
– On the admissibility of the fourth ground of appeal
56 In accordance with settled case-law, it follows from Article 256 TFEU and 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 that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of that appeal, failing which the appeal or ground of appeal concerned will be inadmissible (judgment of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 40 and the case-law cited).
57 It should be noted, as observed by the Parliament, that the appeal does not contain any explanation as to the error of law allegedly committed by the General Court in paragraph 67 of the judgment under appeal, with the result that, in that regard, the fourth ground of appeal is inadmissible.
58 As regards, on the other hand, the error of law allegedly committed by the General Court in paragraph 68 of that judgment, OA submits, albeit succinctly, that the General Court held, in that paragraph, that, as OA argued before it, the career progress of officials and APAs respectively is not governed by the same principles. OA complains that the General Court failed to take account of that difference and thus ‘openly’ accepted an interpretation of the second paragraph of Article 77 of the Staff Regulations which breaches the principle of non-discrimination, even though he had asked it to interpret that provision in a manner consistent with that principle. In so doing, OA explained with sufficient clarity that, in his view, the General Court erred in law in its interpretation of the second paragraph of Article 77 of the Staff Regulations in paragraph 68 of the judgment under appeal.
59 In those circumstances, the fourth ground of appeal is admissible in so far as it relates to paragraph 68 of the judgment under appeal.
– The merits of the fourth ground of appeal
60 As to the substance, it should be noted that, by his fourth ground of appeal, the appellant complains, in essence, that the General Court favoured an interpretation of the second paragraph of Article 77 of the Staff Regulations which, according to the appellant, breaches the principle of non-discrimination, rather than an interpretation of that principle which would allow the ‘pro rata rule’ laid down in the third paragraph of Article 77 of the Staff Regulations to be applied to APAs.
61 While it is true that Article 1d(1) of the Staff Regulations requires compliance with the principle of non-discrimination in the application of the Staff Regulations, the latter, as an EU act, cannot under any circumstances be interpreted contra legem (see, by analogy, judgment of 17 December 2020, De Masi and Varoufakis v ECB, C‑342/19 P, EU:C:2020:1035, paragraphs 29 and 36).
62 Therefore, having found, in paragraph 65 of the judgment under appeal, that the appellant did not plead the illegality of the second paragraph of Article 77 of the Staff Regulations, but that, in the seventh plea in his action at first instance, he asked the General Court to interpret and apply that provision by omitting the word ‘final’ which appears in it on numerous occasions, the General Court was fully entitled to reject that plea in law in paragraph 69 of that judgment on the ground that such an interpretation would be contra legem.
63 It follows that the fourth ground of appeal must be rejected as in part inadmissible and in part unfounded.
The fifth ground of appeal
Arguments of the parties
64 By his fifth ground of appeal, OA complains, in essence, that the General Court undermined the application of the principle of the protection of legitimate expectations and deprived it of any substance by holding, in paragraphs 80 to 83 of the judgment under appeal, that his action for damages had to be dismissed on the ground that no unlawful conduct, in this case a breach of the principle of the protection of legitimate expectations, could be alleged against the Parliament, even though the Parliament had sent the appellant an email which contained an explicit assurance that the third paragraph of Article 77 of the Staff Regulations would be applied to the calculation of his pension rights.
65 In particular, the General Court acknowledged, in paragraph 80 of the judgment under appeal, that that email had added more inaccuracies than the already unclear information on the Parliament’s intranet site. Furthermore, the General Court’s assertion in the first sentence of paragraph 81 of that judgment disregards the wording of that email in that it contained a precise, unconditional and consistent assurance that OA’s pension rights would be calculated according to the ‘pro rata rule’. As regards the General Court’s assertion in the second sentence of paragraph 81 of that judgment, it is indisputable that the information contained in that email does indeed refer to OA and not to a certain category of persons.
66 The Parliament disputes those arguments.
Findings of the Court
67 It must be borne in mind that any individual is entitled to rely on the principle of the protection of legitimate expectations where he or she is in a situation in which it is apparent that the competent authorities of the European Union, by giving him or her precise, unconditional and consistent assurances originating from authorised and reliable sources, have led him or her to entertain justified expectations, and those assurances must also comply with the applicable rules (see, to that effect, judgments of 6 February 1986, Vlachou v Court of Auditors, 162/84, EU:C:1986:56, paragraph 6; of 18 July 2007, EAR v Karatzoglou, C‑213/06 P, EU:C:2007:453, paragraph 33; and of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 144).
68 Even supposing that the General Court was wrong to conclude, in paragraph 81 of the judgment under appeal, that the information provided to OA could not be characterised as ‘precise, unconditional and consistent assurances’, the fact remains that, as the General Court observed, in essence, in paragraphs 59 and 79 of that judgment, that information did not comply with the third paragraph of Article 77 of the Staff Regulations.
69 In view of the fact that, as is apparent from paragraph 46 above, the second ground of appeal directed against paragraph 59 of the judgment under appeal is unfounded and that OA does not criticise paragraph 79 of that judgment in the present appeal, it must be held that, even assuming that the information provided to OA were precise, unconditional and consistent assurances, the principle of the protection of legitimate expectations could not apply because such assurances would not comply with the applicable rules. In those circumstances, the error of law alleged against the General Court could not, even if it were established, lead to the setting aside of the judgment under appeal.
70 In those circumstances, the fifth ground of appeal must be rejected as ineffective and, therefore, the appeal must be dismissed in its entirety.
Costs
71 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) and (2) of those Rules of Procedure, applicable 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.
72 Since the Parliament has applied for costs and the appellant has been unsuccessful in all his pleas, the appellant must be ordered to bear his own costs and to pay those incurred by the Parliament.
On those grounds, the Court (Eighth Chamber) hereby:
1. Dismisses the appeal;
2. Orders OA to bear his own costs and to pay those incurred by the European Parliament.
Rodin | Spineanu-Matei | Fenger |
Delivered in open court in Luxembourg on 27 February 2025.
A. Calot Escobar | S. Rodin |
Registrar | President of the Chamber |
* Language of the case: English.
© European Union
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