Language of document : ECLI:EU:T:2018:969

JUDGMENT OF THE GENERAL COURT (Third Chamber)

14 December 2018 (*)

[Text rectified by order of 22 January 2019]

(Civil service — Officials — 2014 reform of the Staff Regulations — Leave on personal grounds — Conflicting engagement as a temporary staff member — Transitional measures relating to certain methods for calculating pension rights — Request for an advance decision — Acts adversely affecting an official — Purpose of transitional measures — Scope ratione personae — Entry into service)

In Case T‑128/17,

Isabel Torné, official of the European Commission, residing in Algés (Portugal), represented by S. Orlandi and T. Martin, lawyers,

applicant,

supported by

Agency for the Cooperation of Energy Regulators (ACER), represented initially by S. Manessi, subsequently by P. Martinet, acting as Agents, and by S. Orlandi and T. Martin, lawyers,

by

European Border and Coast Guard Agency (Frontex), represented by H. Caniard and S. Drew, acting as Agents, and by S. Orlandi and T. Martin, lawyers

by

European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), represented by M. Chiodi, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,

by

European Maritime Safety Agency (EMSA), represented by S. Dunlop, acting as Agent, and by S. Orlandi and T. Martin, lawyers,

by

European Banking Authority (EBA), represented by S. Giordano and J. Overett Somnier, acting as Agents,

by

European Securities and Markets Authority (ESMA), represented by A. Lorenzen and N. Vasse, acting as Agents, and by S. Orlandi and T. Martin, lawyers,

and by

European Asylum Support Office (EASO), represented initially by W. Stevens, subsequently by M. Vitsa, acting as Agents, and by A. Duron, lawyer,

interveners,

v

European Commission, represented initially by G. Berscheid and A.-C. Simon, subsequently by G. Berscheid and L. Radu Bouyon, and last by G. Berscheid and B. Mongin, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU for annulment of the Commission’s decision rejecting the applicant’s request of 16 December 2015 for the adoption of an advance decision fixing the date of her entry into service within the meaning of the transitional provisions of Annex XIII to the Staff Regulations of Officials of the European Union relating to certain methods for calculating pension rights,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, I. S. Forrester and E. Perillo (Rapporteur), Judges,

Registrar: L. Ramette,

having regard to the written part of the procedure and further to the hearing on 16 October 2018,

gives the following

Judgment

 Background to the dispute

1        On 16 April 2006, the applicant, Ms Isabel Torné, was appointed as an official at the European Commission in grade A 6, which subsequently became AD 6.

2        On 1 February 2012, on the basis of the provisions of Article 40 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and while she was classified in grade AD 8, step 1, the applicant was placed on leave, at her request, without remuneration, on personal grounds.

3        On the same day, the applicant was nevertheless engaged by the European Border and Coast Guard Agency (Frontex) as a temporary agent, in function group AD, in grade 12, step 2, by a contract concluded on the basis of Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), in the version then in force, to carry out the duties of Head of the Unit ‘Human Resources and Services’.

4        Almost 2 years later, the Staff Regulations and the CEOS were amended by the EU legislature (‘the 2014 reform’). The new Article 77 of the Staff Regulations, applicable also to temporary staff by virtue of the reference in Article 39(1) of the CEOS, defines, in its second subparagraph, a new annual rate of accrual of pension rights, the previous rate of 1.9% thereby decreasing to the less favourable rate of 1.8%. The fifth subparagraph following that Article 39(1) of the CEOS established, moreover, that the pensionable age would rise from 63 to 66 years.

5        A transitional regime was also laid down between the old and new provisions of the Staff Regulations. Thus, the second paragraph of Article 21 of Annex XIII to the Staff Regulations, concerning ‘transitional measures applicable to officials of the Union’, provides, first of all, that officials who ‘entered the service in the period from 1 May 2004 until 31 December 2013’ would continue to acquire, notwithstanding the entry into force of the new Article 77, pension rights at an annual rate of 1.9%.

6        Moreover, according to the fourth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, ‘for officials aged 45 years or more on 1 May 2014 who entered the service between 1 May 2004 and 31 December 2013, the pensionable age [is to] remain 63 years’.

7        Furthermore, as is stated in recital 34 of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the [Staff Regulations] and the [CEOS] (OJ 2013 L 287, p. 15) and taking into account the high number of temporary staff within agencies and the need to define a consistent staff policy, a new category of temporary staff, engaged by agencies, was established by Article 2(f) of the CEOS (‘agency staff’) and a certain number of specific rules were defined in respect of that new category.

8        Consequently, the contract concluded by the applicant with Frontex was automatically converted, as from 1 January 2014, into a temporary staff contract under Article 2(f) of the CEOS, in accordance with Article 6 of the annex to those conditions, concerning the transitional provisions applicable to servants covered by the conditions in question.

9        [As corrected by order of 22 January 2019] On 1 June 2015, the applicant left Frontex to be engaged on the same day by the European Maritime Safety Agency (EMSA), by concluding a contract under Article 2(f) of the CEOS as Head of the Department ‘Corporate Services’. Article 3 of that contract stipulated that she would continue to be classified in grade AD 12, step 3, and would maintain her seniority in the grade on 1 February 2012 and in the step on 1 February 2014. Article 4 of the contract provided that the contract’s expiry date would be the same as that fixed by the applicant’s previous contract with Frontex, namely 31 January 2017. In accordance with Article 5 thereof, the contract in question was renewed under the conditions applicable to agency staff thereby allowing the applicant to continue her work with EMSA.

10      Moreover, it should be noted that Article 1(1) of the Annex to the CEOS, concerning the transitional provisions applicable to servants covered by those conditions, stated, inter alia, that the provisions of Articles 21 and 22 of Annex XIII to the Staff Regulations referred to in paragraphs 5 and 6 above, namely continuity with the annual accrual rate (Article 21) and continuity with the pensionable age (Article 22), applied by analogy to servants ‘employed’ on 31 December 2013.

 Pre-litigation procedure

11      On 16 December 2015, the applicant submitted a request, within the meaning of Article 90(1) of the Staff Regulations, to the Director of the Office for the Administration and Payment of Individual Entitlements (PMO) of the Commission in order to obtain a decision from the authority empowered to conclude contracts of employment (‘the AECE’), setting, in advance, certain elements for the calculation of her pension rights (‘the request of 16 December 2015’). She asked, in essence, for confirmation that, after the entry into force of the 2014 reform, she would continue to benefit, despite her transfer to EMSA, from the annual accrual rate of 1.9% and from the pensionable age in force before 1 January 2014, namely 63 years.

12      The request of 16 December 2015 was first the subject of an implied rejection, on 16 April 2016, confirmed, subsequently, by an express rejection on 29 April 2016 by a note from the Head of the Unit ‘Pensions’ of the PMO (‘the note of 29 April 2016’ or ‘the contested decision’).

13      In the note of 29 April 2016, the Head of the Unit ‘Pensions’ of the PMO essentially indicated to the applicant that the decision whose adoption she sought could be taken, at the administrative level, only ‘at the time of her termination of service and on the basis of her status at the time of that termination’.

14      The note of 29 April 2016 specified, however, that ‘the new statutory rules applied where there was a discontinuity in an agent’s career’, that ‘the change of employer was considered to constitute such a discontinuity’, that ‘that meant that, for the working period which followed the conclusion of the contract with EMSA, the Staff Regulations existing at the time of the start of that contract were applicable’ and that, ‘for that period, pension rights would be determined on the basis of the pensionable age of 66 years and of the accrual rate of 1.80%’.

15      Last, the note of 29 April 2016 also pointed out that the applicant ‘maintained her rights under her status as Commission official, which she had not ended’.

16      On 18 July 2016, the applicant submitted to the AECE a complaint under Article 90(2) of the Staff Regulations against the reply to the request of 16 December 2015. By decision of 16 November 2016, the AECE rejected that complaint as inadmissible, on the ground, in essence, that the note of 29 April 2016 did not constitute a decision, but mere information based on the current Staff Regulations.

 Procedure and forms of order sought by the parties

17      By application lodged at the Registry of the General Court on 27 February 2017, the applicant brought the present action.

18      By separate document lodged at the Court Registry on the same day, the applicant requested, in accordance with Article 69(c) of the Rules of Procedure of the General Court, the suspension of proceedings until a decision closing the proceedings in Case T‑769/16, Picard v Commission had acquired the force of res judicata. By decision of 5 April 2017, after hearing the Commission, the President of the Third Chamber granted that request.

19      By document lodged at the Court Registry on 21 March 2017, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure.

20      By acts lodged at the Court Registry on 15 June 2017, the Agency for the Cooperation of Energy Regulators (ACER), Frontex, the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), EMSA,  the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA) and the European Asylum Support Office (EASO) applied to intervene in the present case in support of the form of order sought by the applicant.

21      By decision of 18 July 2017, after hearing the main parties, the President of the Third Chamber decided to resume the proceedings, in accordance with Article 70(2) of the Rules of Procedure.

22      On 1 September 2017, the applicant submitted observations on the objection of inadmissibility raised by the Commission (see paragraph 19 above).

23      By order of the Court of 5 October 2017, the objection of inadmissibility was joined to the substance of the case.

24      On 20 November 2017, the Commission lodged its defence. By letter of 6 December 2017, the applicant waived her right to lodge a reply.

25      By order of the President of the Third Chamber of 13 December 2017, ACER, Frontex, eu-LISA, EMSA, the EBA, ESMA and EASO were granted leave to intervene in support of the form of order sought by the applicant.

26      On 26 and 27 January 2018, the interveners lodged their statements in intervention. By letter of 12 February 2018, the applicant waived her right to lodge observations and, on 15 February 2018, the Commission lodged its observations on those statements.

27      By letter of 26 February 2018, the applicant submitted a reasoned request pursuant to Article 106(2) of the Rules of Procedure to be heard at an oral hearing. The Court granted that request and opened the oral part of the procedure.

28      By letter lodged at the Court Registry on 10 October 2018, the EBA informed the Court that it was waiving its right to participate in the hearing.

29      By measure of organisation of procedure, the Court invited the Commission to respond to a written request. The Commission complied with that request within the period prescribed.

30      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

31      The Commission contends that the Court should:

–        dismiss the action as manifestly inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

32      The interveners contend that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

 Law

 Admissibility

 Arguments of the parties

33      The Commission submits that, in the absence of an act adversely affecting the applicant, the present action is manifestly inadmissible.

34      As a preliminary point, the Commission recalls that no provision of the Staff Regulations expressly requires the institution concerned to determine in advance, in respect of the official who makes the request prior to his or her actual retirement, certain elements for calculating the amount of his or her pension rights. On the contrary, the Staff Regulations in no way give rise to some sort of principle of certainty regarding the determination of pension rights before the retirement date. Thus, Article 40 of Annex VIII to the Staff Regulations provides that the pension rights of an official are to be paid at the time of his or her entry into retirement.

35      The Commission therefore argues, first, that, in the present case, the note of 29 April 2016 does not constitute a decision, that is to say, an act adversely affecting the applicant, but mere information based on the Staff Regulations.

36      Second, the Commission submits that, at the time of the lodging of the request of 16 December 2015, the administration did not have all the elements for calculating the applicant’s future pension rights and moreover continues, at present, not to have them. In its view, the information on the date of the applicant’s entry into service and that on the age she was at the time of the entry into force of the 2014 reform entered into force enable it, at most, to estimate the amount of those pension rights.

37      The Commission takes the view that it will be only at the moment of the applicant’s retirement that the legal framework applicable to her — which may include other transitional rules adopted in the meantime — will ultimately be known with certainty and that it is only in those circumstances that her entire career can be taken into account definitively, for the purposes of calculating the amount of retirement pension.

38      According to the Commission, the current rate of annual accrual of pension rights may, potentially, still vary over time and the applicant may also acquire pension rights differentiated according to the development of her career, as provided for, for example, in the third paragraph of Article 77 of the Staff Regulations, in the event of posting. As regards pensionable age, it is subject to a five-yearly actuarial assessment specifically in order to ensure the balance of the EU pension scheme, in accordance with Article 83a(3) of the Staff Regulations. The increase of that factor over time cannot, therefore, be ruled out before the applicant’s retirement.

39      Third, the Commission submits that, even assuming that certain elements of the applicant’s pension rights were already known at the time of the request of 16 December 2015, the application is nevertheless inadmissible because, given that the pension rights are ‘in the course of being established’, the content of those rights can be determined by a ‘final’ decision only upon her retirement.

40      Last, such a solution is in line with that adopted in the judgment of 12 February 1992, Pfloweschner v Commission (T‑6/91, EU:T:1992:13, paragraphs 26 and 27).

41      During the hearing, the Commission moreover stated, in that regard, that the judgment of 1 February 1979, Deshormes v Commission (17/78, EU:C:1979:24, paragraph 10), in which the Court of Justice had accepted that the advance fixing of an element for calculating pension rights constituted an act with adverse effect, was set in a particular context that was not relevant to the present case.

42      The applicant, supported by the interveners, takes the view, on the other hand, that the reply to the request of 16 December 2015, made under Article 90(1) of the Staff Regulations, is an act adversely affecting her, in so far as that reply constitutes a failure to take a measure required by the Staff Regulations, within the meaning of Article 90(2) thereof. She also considers that, by virtue of its content, which deprives it of the application of the transitional provisions at issue, the note of 29 April 2016 is an act adversely affecting her.

 Findings of the Court

43      It is important first of all to recall that, according to settled case-law, ‘only acts producing binding legal effects which directly and immediately affect the interested person’s legal situation, by significantly altering that situation, can be regarded as adversely affecting him’ (see judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 28 and the case-law cited).

44      In the case at hand, it is common ground that, in relation to the subject matter of the request of 16 December 2015, the Head of the Unit ‘Pensions’ of the PMO, in the note of 29 April 2016, clearly stated its position on the amendment of the factors for calculating the amount of the applicant’s future pension rights, namely, first, that of the annual rate of accrual of those rights and, second, that of the applicant’s pensionable age. Moreover, according to the Commission, those amendments were decided on account of the applicant’s change of employer, which occurred after the entry into force of the 2014 reform (see paragraph 13 above). It therefore considers that it is because of the change of employer, that is to say, following a substantial amendment of the applicant’s employment contractual relationship, that the PMO adapted certain factors in the calculation of her pension rights.

45      It has to be said that, by virtue of its content, such a statement of position cannot be regarded as merely containing information on the scope of the provisions of the Staff Regulations concerning pension rights and their method of calculation after the entry into force of the 2014 reform.

46      In the note of 29 April 2016, the Head of the Unit ‘Pensions’ of the PMO specified to the applicant that, following the conclusion of the new contract with EMSA, on 1 June 2015, it was indeed that date that had to be regarded, for the purposes of the application of the transitional regime provided for in the 2014 reform, as the date on which she ‘entered into service’. It follows, in practice, first, that, by virtue of that note, the applicant’s retirement age was henceforth extended, on the basis of established law, to 66 years (rather than 63 years), and that, second, the annual accrual rate of her pension rights decreased from 1.9% to 1.8% as from that same date.

47      In that regard, the note of 29 April 2016 also states that the fixing of the date of the applicant’s entry into service, within the meaning of the transitional provisions introduced during the 2014 reform, ‘means that, for the working employment which follows the conclusion of the contract with EMSA [and thus from 1 June 2015], the statutory rules applicable [to the applicant are precisely those which are in force] at the time of the start of the contract’ which the latter concluded with EMSA (see paragraph 13 above).

48      Consequently, the note of 29 April 2016 has legal effects which immediately and definitively affect the applicant’s administrative situation in that, by that decision, the Commission excludes her from the transitional regime established by Articles 21 and 22 of Annex XIII to the Staff Regulations, applying to her the annual rate of acquisition of pension rights and the pensionable age as amended by the 2014 reform. Moreover, the fact that such a decision can be enforced only in the future and that its effects are therefore deferred in time is, in that respect, irrelevant (see, to that effect, judgment of 1 February 1979 Deshormes v Commission, 17/78, EU:C:1979:24, paragraph 10).

49      Thus, it is indeed the note of 29 April 2016 fixing the date of the applicant’s entry into service that adversely affects her and not its application to the future calculation of her pension rights upon full retirement, when they are liquidated.

50      In addition, and unlike the situation examined in the judgment of 12 February 1992, Pfloeschner v Commission (T‑6/91, EU:T:1992:13, paragraph 27), the AECE, having received the request of 16 December 2015, was required, following the change in the applicant’s contractual employment relationship, to take a decision specifying whether or not the interested person benefited from the transitional provisions set out in Articles 21 and 22 of Annex XIII to the Staff Regulations, in so far as the AECE had factual information on the applicant’s administrative situation which was certain and unchanging.

51      Consequently, the date of the applicant’s entry into service which the PMO wished to fix clearly on the basis of its own interpretation of the applicable transitional provisions, and the consequences that such a fixation had with respect to the administrative conditions which  were the applicant’s before that date as affiliated to the European Union pension scheme, are capable of immediately and directly affecting her legal position (see, to that effect, judgment of 1 February 1979, Deshormes v Commission, 17/78, EU:C:1979:24, paragraphs 10 to 17).

52      It follows that, in accordance with the case-law cited in paragraph 43 above, the Commission’s reply to the request of 16 December 2015 constitutes an act adversely affecting the applicant, within the meaning of Article 90(2) of the Staff Regulations.

53      Accordingly, the objection of inadmissibility raised by the Commission must be dismissed.

 Substance

 Arguments of the parties

54      The applicant, supported by the interveners, submits, in essence, that the Commission’s argument that, due to her change of employer, she does not benefit from the criteria laid down in the transitional provisions provided for in Articles 21 and 22 of Annex XIII to the Staff Regulations on the acquisition of pension rights and the legal retirement age thus infringes not only those provisions but also the principle of continuity of employment and of career of agency staff with the principles of legal certainty, non-retroactivity and equal treatment. In her view, such an argument is also contrary to the terms of the contract she concluded with EMSA and to EMSA’s general implementing provisions of 25 March 2015, relating to the employment of the temporary staff in question.

55      In addition, the new category of temporary staff at the agencies, falling under Article 2(f) of the CEOS, was created by the EU legislature with the precise aim of meeting the specific needs of the various existing European agencies, in particular to ensure the attractiveness of jobs in the context of an ‘inter-agency’ job market, thus promoting the mobility of those concerned and at the same time guaranteeing continuity of employment and career mobility to those staff.

56      Last, the applicant and the interveners stressed, during the hearing, that the officials, temporary agents and contract agents employed by the European Union were all covered by the same uniform EU pension scheme. The scope of the transitional provisions of Annex XIII to the Staff Regulations has, in their view, been clearly defined. It covers insured persons who contributed to the scheme before 1 January 2014. The change of institution, body, office or agency therefore has no impact on that affiliation.

57      The Commission disputes that line of argument. While acknowledging that Article 2(f) of the CEOS created a new category of temporary staff with the aim, in particular, of promoting mobility between the agencies, in its view, agency staff nevertheless do not constitute an autonomous category of temporary staff. Those staff are, however, like other servants of the Union of any category, subject to the applicable general provisions of the CEOS, with the exception of specific derogations. Therefore, as the law currently stands, the principle of career continuity is limited in terms of pension rights and does not extend, automatically, to pension eligibility conditions and to calculation of the pension. Such an extension cannot, in any event, be implicit.

58      According to the Commission, in order to meet the objective of reducing administrative expenditure specifically targeted by the EU legislature, the 2004 reform did not remove any obstacle to the ‘inter-agency market’. Thus, Regulation No 1023/2013 does not contain an express provision laying down the principle of career continuity for agency staff for the calculation of pension rights.

59      The Commission therefore contends that neither it, the agencies nor the staff concerned can, by contractual or administrative means, supplement the objectives of the 2014 reform by relying on a teleological interpretation of Article 1 of the Annex to the CEOS and Articles 21 and 22 of Annex XIII to the Staff Regulations. In fact, such an interpretation would have the effect of reducing — or even partly reversing — the desired budgetary savings of the EU legislature, by delaying the application of the new provisions of Article 77 of the Staff Regulations.

60      At the hearing, the Commission argued that the Staff Regulations did not lay down a principle of continuity of pension rights, either. Recital 29 of Regulation 1023/2013 generally refers to the gradual implementation of the new rules by means of transitional provisions. In that respect, with regard to pension rights, Articles 21 and 22 of Annex XIII to the Staff Regulations, which introduce the criterion of ‘entry into service’, are moreover precise and do not contain any gaps.

61      In addition, owing to their dual nature as transitional measures and financial measures, Articles 21 and 22 of Annex XIII to the Staff Regulations should therefore be interpreted strictly, as they are an exception to the principle of the immediate application of Article 77 of the Staff Regulations and govern the grant of a financial advantage.

62      In that context, the Commission also argued, at the hearing, that Article 28 of Annex XIII to the Staff Regulations, which provides that an actuarial adjustment of the pension rights acquired by a staff member who is under contract before 1 January 2014 is to take place when that staff member is appointed as an official after that date, proves that, in the absence of specific provisions such as that of that article, the transitional provisions must be applied in a general manner.

63      In the specific case of the applicant, however, the Commission considers, in the first place, that, in accordance with the principle of the administrative autonomy of the European institutions enshrined in Article 335 TFEU, particularly in the management of their staff, the applicant cannot be regarded as an employee of the European Union but only, as from the request of 16 December 2015, as an agent of EMSA (judgment of 21 January 2014, Van Asbroeck v Parliament, F‑102/12, EU:F:2014:4, paragraph 29). In other words, as EU agencies have legal personality, their staff cannot have both an agency and the Union as their employer.

64      Consequently, the Commission considers that, having regard to the legal framework applicable in this case, the change of employer decided by the applicant necessarily led to a significant breakdown in her previous employment relationship and, consequently, to a discontinuity in her career. In that regard, Article 55 of the CEOS, which allows the staff member concerned to retain his or her classification and seniority in grade and step, is to be distinguished from the third paragraph of Article 32 of the Staff Regulations, which provides for retention of seniority in step in the case of a temporary servant appointed as an official at the same institution, ‘for whom a certain degree of career continuity appears logical and natural’.

65      According to the Commission, the principle of limited career continuity, recognised by Article 55 of the CEOS, is merely an exception to the general rule that there is no continuity of career for those temporary staff changing institutions or agencies.

66      In the second place, the case-law confirms the absence of a ‘principle of continuity of service’ with regard to temporary staff, such a principle existing, in general, only for officials, in accordance with the administrative status conferred on them by the notice of appointment. Indeed, Article 8 of the Staff Regulations specifically states that the official transferred to another institution is to be ‘deemed to have served his entire service career in the Union in the latter institution’.

67      Thus, in the Commission’s view, with regard to temporary staff, in the judgment of 16 September 2015, EMA v Drakeford (T‑231/14 P, EU:T:2015:639), far from recognising, in the event of a change of employer, continuity of career, the EU Courts have only found continuity between several identical successive contracts within the same agency, pursuant to Article 8 of the CEOS, which specifically aims to prevent the abuse of fixed-term contracts. Moreover, it follows from the judgment of 29 April 2015, Todorova Androva v Council (F‑78/12, EU:F:2015:37, paragraphs 51 and 53) that, where the EU legislature has not expressly provided for it, there is no administrative continuity in the career of a member of the temporary staff who becomes an official. As regards the judgment of 1 April 2008, Maruko (C‑267/06, EU:C:2008:179), it confirms only that the rights definitively acquired under a contract are not affected by the new rule and that the principle of the link between pay and pension is thereby indeed complied with. Last, the Commission adds that the judgment of 5 December 2012, Grazyte v Commission (F‑76/11, EU:F:2012:173) confirms that, before the 2014 reform, protection of staff transferred from one agency to another did not exist, and illustrates that the specific provisions relating to agency staff are not sufficient to create genuine ‘substantial continuity’ between the contracts concluded with different agencies.

68      Last, for the same reasons, the Commission submits that applying the new rules on the annual accrual rate of pension rights and pensionable age does not adversely affect the rights acquired by the applicant before her employment by EMSA, nor does it violate the principles of legal certainty and non-retroactivity (judgment of 19 July 2016, Stips v Commission, F‑131/15, EU:F:2016:154, paragraph 41). Furthermore, in the absence of substantial continuity between the applicant’s posts with Frontex and EMSA, the applicant is not discriminated against by comparison with colleagues who have not changed agency.

 Findings of the Court

69      It should be noted that the applicant, who was appointed as a Commission official on 16 April 2006, has been on leave on personal grounds (congé de convenance personnelle; ‘CCP’) since 1 June 2012. On that same date, she was employed as a temporary agent by Frontex, before then concluding a contract with EMSA in 2015, that is to say, after the entry into force of the 2014 reform, on 1 January 2014 (see paragraph 9 above).

70      Moreover, before examining the arguments of the parties, it is necessary to recall the scope ratione temporis and ratione personae of the new provisions of Article 77 of the Staff Regulations, particularly in the light of the rules of transitional law laid down in Annex XIII to those regulations.

–       Scope ratione temporis and rationae personae of the new provisions of Article 77 of the Staff Regulations introduced by the 2014 reform

71      From a temporal point of view, it should be noted at the outset that any legislative amendment applies, in principle, to the future effects of situations originating under the repealed legislation, absent any express derogation by the legislature. That is not the case for situations originating and becoming definitive under the previous legislation, that legislation having created acquired rights (judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 152).

72      Consequently, with regard, first, to the scope ratione temporis of the new Article 77 of the Staff Regulations, it must be noted that, contrary to the applicant’s claims (see paragraph 54 above), the immediate application of that article cannot be contrary to the principles of legal certainty and non-retroactivity.

73      The new Article 77 of the Staff Regulations affects neither pension rights acquired at the rate of 1.9% for service before 1 January 2014, namely before its entry into force, nor the rights of officials and agents who applied to retire at the legal age of 63 and whose pensions were fixed before 1 January 2014 (Article 24a of Annex XIII to the Staff Regulations). Only situations not yet definitively constituted at the time of the entry into force of the 2014 reform, namely pension rights corresponding to the work performed under the new rules introduced by the EU legislature as part of the 2014 reform as well as retirements after 1 January 2014 with regard to officials and agents not covered by a transitional regime are capable of falling within the scope of those new rules.

74      Second, with regard to the scope ratione personae of the new Article 77 of the Staff Regulations, it should be noted that, as part of the 2014 reform, the EU legislature laid down ‘transitional arrangements … to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights and legitimate expectations of the staff employed before the entry into force of these amendments to the Staff Regulations’, as recital 29 of Regulation No 1023/2013 states.

75      Thus, as regards, in the present case, the method for calculating pension rights, Articles 21 and 22(1) of Annex XIII to the Staff Regulations, which are applicable by analogy in this case by virtue of Article 1(1) of the Annex to the CEOS, specify that officials who entered the service between 1 May 2004 and 31 December 2013 are entitled to an annual accrual rate of 1.9% and, if they were 45 years of age or older on 1 May 2014 — like the applicant was — their statutory retirement age is maintained at 63 years.

–       The concept of ‘entry into service’

76      On this subject, it should first be noted that neither the Staff Regulations nor the CEOS expressly defines the concept of entry into service set out in the transitional provisions mentioned in paragraphs 74 and 73 above, which the Commission moreover confirmed during the hearing.

77      However, the rules applicable in this case contain sufficiently clear and precise indications, and even criteria, for defining the content of the concept of entry into service in the context of a systematic interpretation of those rules. In particular, it follows from Article 1(1) of the Annex to the CEOS, which refers, as regards other servants, to an application by analogy of the rules laid down in Annex XIII to the Staff Regulations, that all EU staff, regardless of the nature of the employment relationship — permanent or contractual — are covered, under the same conditions, by those transitional rules.

78      The EU legislature having therefore expressly instituted a uniform transitional regime for officials and other servants of the Union, the concept of entry into service must receive an interpretation based on the same principles as the employment relationship, whether permanent or contractual in nature, without prejudice, however, to the rules of the Staff Regulations and of the CEOS defining the regime applicable to each of those categories of staff being taken into consideration.

79      More precisely, in accordance with the case-law, the concept of entry into service must be interpreted by taking into account not only the terms in which it is formulated, but also the objectives pursued and the system set up by the Staff Regulations and the Conditions of Employment of Other Servants and in which it is incorporated (see, to that effect, judgment of 29 April 2015, Todorova Androva v Council, F‑78/12, EU:F:2015:37, paragraph 49).

80      It follows that a strict interpretation of the relevant transitional provisions, the need for which is rightly invoked by the Commission (see paragraph 61 above), owing to the exceptional nature of those provisions (judgment of 17 January 2013, Commission v Spain, C‑360/11, EU:C:2013:17, paragraph 18) and their budgetary implications (judgment of 30 June 2005, Olesen v Commission, T‑190/03, EU:T:2005:264, paragraph 48), cannot, however, run counter to the objectives pursued by the EU legislature or to the system established by the Staff Regulations and the CEOS.

81      In the case at hand, the transitional provisions at issue concern the specific area of the EU pension scheme.

82      The EU pension scheme, as provided for in the relevant provisions of Chapter 3 of Title V of the Staff Regulations and Annex VIII thereto, however, is common to the officials, temporary staff and contract staff of the European Union, irrespective of the permanent or contractual nature of their employment relationship.

83      [As corrected by order of 22 January 2019] In particular, Article 2 of Annex VIII to the Staff Regulations, which governs the ‘pension scheme’, provides that the ‘retirement pension [is to] be paid on the basis of the total number of years of pensionable service acquired by the official’. In that regard, the following Article 3 of that annex further specifies that, provided that the servant concerned has paid his or her share of the pension contributions in respect of the period of service concerned, ‘the period of service as an official of one of the institutions’ and ‘periods of service in any other capacity in accordance with the [CEOS]’ are to be taken into account for the purpose of calculating years of pensionable service.

84      In addition, in response to a written question from the Court, the Commission confirmed that, in the present case, the applicant had contributed to the EU pension scheme without interruption since her entry into service, first as an official, then as a member of the temporary staff recruited by Frontex in 2012 and, finally, as a member of the temporary staff recruited by EMSA in 2015.

85      It follows that, owing to the applicant’s continuing employment relationship — governed by the Staff Regulations — with the Commission and, consequently, owing to her continued affiliation to the EU pension scheme, including for the period of her CCP, the applicant’s employment as a member of the temporary staff, first by Frontex in 2012 and then by EMSA in 2015, cannot be considered, in relation to her affiliation to that pension scheme, as a new entry into service, without prejudice, naturally, to any variations in the amount of contributions linked to changes in her basic salary due to change in her administrative position to CCP, for example, or as a temporary agent employed at a higher grade than that held as an official on CCP.

86      In that regard, in the response mentioned in paragraph 84 above, the Commission also specified that, in accordance with Article 41 of the CEOS, the rate of contribution to the EU pension scheme (which is a percentage of the basic salary) ‘is the same whether the servant is an official or a temporary agent’. Therefore, in the applicant’s specific case, even if, as the Commission notes, ‘[her] basic salary varied significantly because she was an official in grade AD 8, step 1 when she took CCP to work at Frontex as a temporary agent in grade AD 12, step 2 [and then when] EMSA recruited her at grade AD 12, step 3’, the fact remains that she has never stopped being affiliated to the pension scheme and contributing to it due, specifically, to those different basic salaries.

87      In such circumstances, the applicant, notwithstanding her CCP and her subsequent employment, first at FRONTEX from the date of that CCP and then at EMSA, has remained, administratively and particularly in terms of her affiliation to the EU pension scheme, an official of the Commission, where she entered ‘into service’ in 2006, thereby becoming an official of the European Union. Under Article 1a of the Staff Regulations, ‘for the purposes of [those regulations], “official of the Union” means any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff of one of the institutions of the Union by an instrument issued by the Appointing Authority of that institution’.

88      In addition, it should be noted that, within the general framework of the Staff Regulations and the CEOS, the entry into service of a person with the Union can only coincide with the date on which that person begins, on the basis of a notice of appointment — if that person is, as in the applicant’s case, an official (see Article 1a cited above) — to carry out the duties assigned to her, until such time as an administrative act, equal and contrary, is adopted to give rise to what the Staff Regulations themselves describe, in Chapter 4, as ‘termination of service’.

89      As far as officials are concerned, examples of such termination of service might be the letter of resignation (Article 48 of the Staff Regulations), retirement (Article 50 of the Staff Regulations), dismissal for incompetence (Article 51 of the Staff Regulations), the retirement decision (Article 52 of the Staff Regulations) or death (Article 47 of the Staff Regulations). CCP, on the contrary, is not an administrative position giving rise to ‘termination of service’.

90      That being the case, even assuming that the applicant, while still being, after taking CCP, a permanent official of the Commission, underwent a new ‘entry into service’ on account of her employment at EMSA on 1 June 2015 — when the 2014 reform was already in force — the impact of this new ‘entry into service’ can be assessed only in the context of the specific framework and aim of the new provisions on the determination of the rate of accrual of pension rights (1.8%) and the pensionable age (66 years), the aim being that ‘the new rules and measures [on pension rights] … be applied gradually, whilst respecting the acquired rights and legitimate expectations of the staff employed [including at the agencies] before the entry into force’ of the 2014 reform.

91      Thus, even if the aim of the transitional rules in question was indeed also to cover the budgetary costs of the European Union’s administrative expenditure, those rules cannot, in any event, undermine the acquired rights and legitimate expectations of staff — of any category — who were ‘employed’ before the entry into force of the 2014 reform (see paragraph 74 above).

92      With that in mind, it must therefore be held that the applicant, while being in service with the Union without interruption of service since her appointment in 2006 as a Commission official, has necessarily maintained, throughout her employment relationship with the Union and notwithstanding her being on CCP, her affiliation to the EU pension scheme as provided for in Article 83 of the Staff Regulations, and has contributed to that pension scheme on the basis of contributions deducted from the monthly salaries to which she was entitled, first as an official of the Commission and then — without interruption — as an agent of the Union, from her first engagement at FRONTEX, on 1 February 2012, and then at EMSA, on 1 June 2015.

93      [As corrected by order of 22 January 2019] In these circumstances, it should accordingly be concluded that, for the purposes of applying the transitional measures in question, the applicant’s ‘entry into service’ with the Union must be regarded as being between 1 May 2004 and 31 December 2013 and she, having remained in service after the latter date, is entitled to enjoy the conditions laid down by the said transitional provisions concerning, first, the rate of accrual of pension rights at 1.9% and, second, the pensionable age at 63 years.

94      For all those reasons, it is necessary to uphold the pleas alleging infringement of Articles 21 and 22 of Annex XIII to the Staff Regulations and to annul the contested decision, without it being necessary to examine the other pleas.

 Costs

95      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

96      Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.

97      In accordance with Article 138(1) of the Rules of Procedure, read in conjunction with Article 1(2)(f) of those rules, the bodies, offices and agencies of the Union which have intervened in the proceedings are to bear their own costs. The interveners shall therefore bear their own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

Annuls the decision of the European Commission of 16 April 2016, confirmed by the note of the Office for the Administration and Payment of Individual Entitlements (PMO) of 29 April 2016;Orders the Commission to bear its own costs and to pay those incurred by Ms Isabel Torné;


Orders the Agency for the Cooperation of Energy Regulators (ACER), the European Border and Coast Guard Agency (Frontex), the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), the European Maritime Safety Agency (EMSA), the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA) and the European Asylum Support Office (EASO) to bear their own costs.

[Signatures]


*      Language of the case: French.