JUDGMENT OF THE GENERAL COURT (Second Chamber)
12 June 2019 (*)
(Civil service – Officials – Article 42c of the Staff Regulations – Leave in the interests of the service – Automatic retirement – Measure not open to challenge – Partial inadmissibility – Scope of the law – Court acting of its own motion – Literal, contextual and teleological interpretation)
In Case T‑167/17,
RV, former official of the European Commission, represented initially by J.-N. Louis and N. de Montigny, and subsequently by J.-N. Louis, lawyers,
applicant,
v
European Commission, represented by G. Berscheid and D. Martin, acting as Agents,
defendant,
supported by
European Parliament, represented initially by J. Steele and D. Nessaf, subsequently by J. Steele and M. Rantala and finally by J. Steele and C. González Argüelles, acting as Agents,
and by
Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,
interveners,
APPLICATION pursuant to Article 270 TFEU seeking the annulment of the Commission’s decision of 21 December 2016 to place the applicant on leave in the interests of the service pursuant to Article 42c of the Staff Regulations of Officials of the European Union and simultaneously to retire the applicant automatically pursuant to the fifth paragraph thereof,
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, E. Buttigieg (Rapporteur) and B. Berke, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 18 January 2019,
gives the following
Judgment
Legal framework
1 The Staff Regulations of Officials of the European Union (‘the Staff Regulations’) are established by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ 1968 L 56, p. 1), as amended, in particular, by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15).
2 Article 35 of the Staff Regulations, which is part of Chapter 2 of Title III of the Staff Regulations, headed ‘Administrative status’, provides that an official may be assigned one of the following administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service, parental leave or family leave and leave in the interests of the service.
3 Article 42c of the Staff Regulations, which is part of the same chapter, provides as follows:
‘At the earliest five years before the official’s pensionable age, an official with at least ten years of service may be placed by decision of the appointing authority on leave in the interests of the service for organisational needs linked to the acquisition of new competences within the institutions.
The total number of officials placed on leave in the interests of the service each year shall not be higher than 5% of the officials in all institutions who retired the previous year. The total number thus calculated shall be allocated to each institution according to their respective numbers of officials [as] at 31 December of the preceding year. The result of such allocation shall be rounded up to the nearest whole number in each institution.
Such leave shall not constitute a disciplinary measure.
The duration of the leave shall correspond in principle to the period until the official reaches pensionable age. However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official.
When the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired.
Leave in the interests of the service shall be governed by the following rules:
(a) another official may be appointed to the post occupied by the official;
(b) an official on leave in the interests of the service shall not be entitled to advancement to a higher step or promotion in grade.
An official thus placed on leave shall receive an allowance calculated in accordance with Annex IV.
At the official’s request, the allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. In such a case, the period of service as an official on leave in the interests of the service shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2 of Annex VIII.
The allowance shall not be subject to a correction coefficient.’
4 Article 47 of the Staff Regulations is part of Chapter 4 of Title III of the Staff Regulations, headed ‘Termination of service’. That article provides that services may be terminated by resignation, compulsory resignation, retirement in the interests of the service, dismissal for incompetence, removal from post, retirement or death.
5 Points (a) and (b) of the first paragraph of Article 52 of the Staff Regulations, which is also part of Chapter 4, provide, inter alia, that, without prejudice to Article 50 of the Staff Regulations (which concerns retirement in the interests of the service for senior officials), an official is to be retired either automatically on the last day of the month in which he reaches the age of 66, or at his own request on the last day of the month in respect of which the request was submitted where he has reached pensionable age.
6 Annex XIII to the Staff Regulations contains transitional measures applicable to officials.
7 Article 22(1) of Annex XIII to the Staff Regulations provides as follows:
‘1. Officials with 20 or more years’ service on 1 May 2004 shall become entitled to a retirement pension when they reach the age of 60.
Officials aged 35 years or more on 1 May 2014 and who entered the service before 1 January 2014 shall become entitled to a retirement pension at the age shown in the table below:
Age on 1 May 2014 | Pensionable age |
60 years and above | 60 years |
59 years | 60 years 2 months |
58 years | 60 years 4 months |
… | … |
35 years | 64 years 8 months |
Officials aged less than 35 years on 1 May 2014 shall become entitled to a retirement pension at the age of 65 years.
However, 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 shall remain 63 years.
For officials in service before 1 January 2014[,] pensionable age to be taken into consideration for all references to the pensionable age in these Staff Regulations shall be determined in accordance with the above provisions, save as otherwise provided in these Staff Regulations.’
8 Article 23(1) of Annex XIII to the Staff Regulations provides, inter alia, that an official in service before 1 January 2014 shall be retired automatically on the last day of the month in which he reaches the age of 65.
Background to the dispute
9 The applicant, RV, is a former official of the European Commission. He was born on 10 January 1956 and entered the service of the Commission on 1 September 1992. From 1 February 2009, he was assigned to the Directorate-General (DG) for Regional and Urban Policy. He was promoted to grade AST 9 on 1 January 2013.
10 By letter of 30 November 2016, the Directorate-General (DG) for Human Resources and Security informed the applicant that the appointing authority intended to place him on leave in the interests of the service from 1 April 2017, pursuant to Article 42c of the Staff Regulations.
11 By email of 6 December 2016, the applicant acknowledged receipt of the letter of 30 November 2016 and sought clarification of his retirement rights and of various practical aspects of his being placed on leave in the interests of the service pursuant to Article 42c of the Staff Regulations.
12 By email of 8 December 2016, the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) sent the applicant the provisional calculation of the allowance which would be payable to him pursuant to Article 42c of the Staff Regulations, specifying that that email was sent to him for information purposes only and that it did not constitute a decision of the appointing authority which could give rise to a complaint.
13 At a meeting held on 15 December 2016, the Head of the Career Management and Mobility Unit of DG Human Resources and Security indicated, inter alia, to the applicant that, inasmuch as he had reached ‘pensionable age’ within the meaning of Article 22(1) of Annex XIII to the Staff Regulations and in the event that the appointing authority were to decide to place him on leave in the interests of the service, he would retire immediately on 1 April 2017. On that date, in accordance with the calculations received from the PMO, the applicant would have acquired pension rights of 54.9% and the amount of his pension would be EUR 4 040.99. The applicant indicated that he had not been properly informed in relation to the consequences of his being placed on leave in the interests of the service and that, if he had been so informed, he would not have agreed to his being placed on leave in the interests of the service. The applicant also indicated that he did not wish to retire automatically on 1 April 2017, but that he wished to remain in active employment to have the opportunity to acquire additional pension rights. In the event that the appointing authority were to decide to place him on leave in the interests of the service, the applicant indicated that 1 April 2017 was too soon and that he needed two or three more months to prepare for retirement.
14 Following that meeting, on 20 December 2016, the Career Management and Mobility Unit of DG Human Resources and Security sent the appointing authority a favourable opinion regarding the application of Article 42c of the Staff Regulations in respect of the applicant.
15 By decision of 21 December 2016, the appointing authority decided, on the one hand, to place the applicant on leave in the interests of the service, under Article 42c of the Staff Regulations, from 1 April 2017, and, on the other, given that he had already reached ‘pensionable age’, in accordance with Article 22(1) of Annex XIII to the Staff Regulations, to automatically retire him, under the fifth paragraph of Article 42c of the Staff Regulations, on the same date (‘the contested decision’).
16 On 13 March 2017, the applicant submitted a complaint against the contested decision under Article 90(2) of the Staff Regulations.
17 On 16 March 2017, the Pensions Unit of the PMO sent the applicant a notice of assessment of the allowance provided for in Article 42c of the Staff Regulations. According to that notice, the applicant would receive the abovementioned allowance, corresponding to 100% of basic salary, from 1 April 2017 until 30 April 2017, and his right to a retirement pension would take effect on 1 May 2017.
18 On 31 March 2017, the applicant’s legal adviser sent an email to the Commission in which he argued that the ‘decision’ of the PMO of 16 March 2017 replaced the contested decision in that it modified the applicant’s administrative situation and claimed that it had not been notified to the applicant, in breach of Article 25 of the Staff Regulations and the principles of sound management and good administration arising under Article 41 of the Charter of Fundamental Rights of the European Union. The applicant’s legal adviser consequently specified that the complaint was also directed against the ‘new decision’ of the Commission of 16 March 2017.
19 The applicant’s complaint was rejected by express decision of the appointing authority of 27 July 2017.
Procedure and forms of order sought
20 By application lodged at the Court Registry on 16 March 2017, the applicant brought the present action.
21 By separate document lodged at the Court Registry on the same day, the applicant requested that he be granted anonymity pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 19 May 2017, the Court granted that request.
22 By separate document lodged at the Court Registry on 16 March 2017, the applicant requested that a decision be given on the present action under an expedited procedure, in accordance with Article 152 of the Rules of Procedure.
23 By separate document lodged at the Court Registry on the same day, the applicant applied for interim measures, pursuant to Articles 278 and 279 TFEU, seeking that application of the contested decision be suspended. Pursuant to Article 91(4) of the Staff Regulations, the proceedings in the principal action were suspended.
24 By order of 24 March 2017, RV v Commission (T‑167/17 R, not published, EU:T:2017:218), the President of the Court rejected the applicant’s application for interim measures for lack of urgency.
25 By documents lodged at the Court Registry, on 8 and 12 May 2017 respectively, the European Parliament and the Council of the European Union sought leave to intervene in the present case in support of the form of order sought by the Commission.
26 In accordance with Article 91(4) of the Staff Regulations, the proceedings in the principal action were resumed following the adoption, on 27 July 2017, of the express decision rejecting the applicant’s complaint.
27 By decisions adopted by the President of the Second Chamber of the Court, on 16 and 11 August 2017 respectively, the Parliament and the Council were granted leave to intervene in support of the form of order sought by the Commission.
28 By decision of 18 August 2017, the General Court (Second Chamber) rejected the request for an expedited procedure formulated by the applicant.
29 On 29 and 30 November 2017, the Parliament and the Council respectively lodged their statements in intervention.
30 On 22 February 2018, the Court Registry informed the parties that the written part of the procedure had been closed.
31 By document lodged at the Court Registry on 7 March 2018, the applicant submitted a reasoned application, under Article 106 of the Rules of Procedure, to be heard during the oral part of the procedure.
32 On a proposal from the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral part of the procedure and, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, invited the Commission to add a document to the case file and invited all the parties to reply in writing to a question. All the parties complied with those requests within the time allowed, with the exception of the applicant, who lodged his written reply outside the time limit. By decision of the President of the Second Chamber of the General Court of 15 January 2019, the applicant’s written reply and his letter justifying its being lodged outside the time limit were added to the case file.
33 The parties presented oral argument and replied to the questions put by the Court at the hearing on 18 January 2019.
34 The applicant claims in the application that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
35 In the reply, the applicant claims that the Court should ‘annul, so far as may be necessary, the decision of the Commission of 16 March 2017 setting 1 May 2017 as the date of [his] automatic retirement’.
36 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
37 The Parliament contends that the Court should dismiss the action.
38 The Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility of the application for annulment of the ‘decision’ of the Commission of 16 March 2017
39 The Commission maintains that the application for annulment of its ‘decision’ of 16 March 2017 establishing the applicant’s pecuniary rights is inadmissible. First, it maintains that that matter has not been correctly brought before the Court inasmuch as the abovementioned application does not appear in the application initiating proceedings and that the applicant did not submit an additional application in that regard. The Commission therefore considers that the applicant cannot extend his application to cover the abovementioned ‘decision’ of 16 March 2017. Secondly, the Commission argues that that ‘decision’ was adopted by way of follow-up to the contested decision and merely established the applicant’s pecuniary rights pursuant to Article 10 of Annex VIII to the Staff Regulations. Consequently, it does not alter his legal situation.
40 The applicant argues in response that, inasmuch as he became aware of the outcome of his complaint only after he had brought proceedings before the Court, he was entitled to adjust and extend the form of order which he sought to include the ‘decision’ of 16 March 2017.
41 It should be recalled that, in accordance with Article 91(1) of the Staff Regulations, only actions brought against an act affecting the applicant adversely are admissible.
42 According to settled case-law, only acts or decisions producing binding legal consequences likely directly and immediately to affect the applicant’s interests by significantly changing his legal situation may be the subject of an action for annulment (see judgment of 23 November 2016, Alsteens v Commission, T‑328/15 P, not published, EU:T:2016:671, paragraph 113 and the case-law cited).
43 In the present case, it should be recalled, first, that the contested decision placed the applicant on leave in the interests of the service and simultaneously automatically retired him from 1 April 2017, under Article 42c of the Staff Regulations and that, secondly, the PMO’s notice of 16 March 2017 (see paragraph 17 above), classified as a ‘decision’ by the applicant, specifies that, in April 2017, the applicant will receive the allowance provided for in the seventh paragraph of Article 42c of the Staff Regulations, corresponding to 100% of basic salary, and that his right to a retirement pension will take effect on 1 May 2017.
44 In that regard, it should be recalled that under Article 10 of Annex VIII to the Staff Regulations:
‘The right to receive payment of retirement pension shall have effect from the first day of the calendar month following that in which the official, whether automatically or at his own request, becomes eligible for that pension; he shall continue to receive his remuneration until his pension becomes payable.’
45 As the Commission stated, without being challenged, the PMO’s notice of 16 March 2017 applied Article 10 of Annex VIII to the Staff Regulations. In accordance with that provision, the applicant was to start receiving his retirement pension from May 2017, that is from the calendar month following the month (April 2017) in which he became eligible for that pension under the contested decision. In the meantime, that is in April 2017, the applicant, pursuant to the abovementioned provision, was to receive his ‘remuneration’, which, in his case, and as the Commission argued, must be interpreted as corresponding to the allowance provided for in the seventh paragraph of Article 42c of the Staff Regulations, in view of the fact that the contested decision placed him on leave in the interests of the service from 1 April 2017.
46 Thus, the PMO’s notice of 16 March 2017 merely specifies the applicant’s pecuniary rights resulting from the contested decision and the application of Article 10 of Annex VIII to the Staff Regulations and consequently constitutes a follow-up to the contested decision. In those circumstances, and in view of the case-law cited in paragraph 42 above, it must be found that that notice does not produce binding legal consequences likely directly and immediately to affect the applicant’s interests by significantly changing his legal situation, as that situation is defined purely by the contested decision, which, in the present case, constitutes the only act having an adverse effect.
47 Consequently, the PMO’s notice of 16 March 2017 is not a challengeable act and the application for annulment in respect of it must be rejected as inadmissible.
Substance
The Court’s power to examine, in the present case, the plea in law alleging breach of the scope of the law
48 In support of his action, the applicant relied on four pleas in law, the first alleging infringement of essential procedural requirements and that the unrestricted delegation of the powers of the appointing authority concerning the application of Article 42c of the Staff Regulations is unlawful, the second alleging breach of the principles of equal treatment and non-discrimination, the third alleging that Article 42c of the Staff Regulations is unlawful in that that provision disregards recitals 2, 14 and 29 of Regulation No 1023/2013 and does not lay down transitional measures enabling it to be applied gradually, and the fourth alleging breach of the principles of proportionality and the protection of legitimate expectations and of the duty to have regard for the welfare of staff, and a manifest error of assessment. At the hearing, the applicant indicated that he was withdrawing the abovementioned second plea in law.
49 In addition, in his observations on the statements in intervention of the Parliament and the Council, the applicant cited passages from the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351), without drawing any express conclusions.
50 In the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351), the President of the Court, ruling on an application for interim measures, ordered a stay of execution of the decision of the Commission to place the applicant, in that case, on leave in the interests of the service and simultaneously to automatically retire him in accordance with the fifth paragraph of Article 42c of the Staff Regulations, given that he had reached ‘pensionable age’ within the meaning of Article 22(1) of Annex XIII to the Staff Regulations (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraph 16). The judge hearing the application for interim measures, in examining the prima facie case, and in response to the first two pleas in law, alleging infringement of Articles 47 and 52 of the Staff Regulations and breach of the scope of Article 42c of the Staff Regulations respectively, set out the following considerations.
51 First, the judge hearing the application for interim measures observed that, prima facie, Articles 22 and 23 of Annex XIII to the Staff Regulations, like Article 52 of the Staff Regulations, established a clear distinction between the legal pensionable age at which an official is to be retired automatically and the minimum pensionable age, the latter expression being understood as the age from which an official may request retirement (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraph 50).
52 Secondly, the judge hearing the application for interim measures considered that, even if, at first sight, there could be certain resultant difficulties in reconciling, in terms of the overall scheme, on the one hand, the provisions of the Staff Regulations governing retirement and termination of service generally and, on the other, Article 42c of the Staff Regulations, the fact remained that the fifth paragraph of that article expressly provides that ‘when the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired’. Thus, according to the judge hearing the application for interim measures, whilst Article 42c of the Staff Regulations was to be regarded as a lex specialis, it was nonetheless necessary to establish its scope (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraphs 52 and 54).
53 Thus, thirdly, the judge hearing the application for interim measures took the view that it was necessary to establish whether, at first sight, Article 42c of the Staff Regulations allowed an official, who had reached minimum pensionable age, to be placed on leave in the interests of the service and simultaneously automatically retired against his wishes (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraph 55). He concluded that, at first sight, that provision did not allow that, in particular by interpreting that article literally (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraphs 56 to 63).
54 The abovementioned considerations set out by the judge hearing the application for interim measures in the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351), concern the scope of Article 42c of the Staff Regulations inasmuch as the imposition of leave in the interests of the service and simultaneous automatic retirement were the result of applying that provision to an official who entered the service before 1 January 2014 and who had reached ‘pensionable age’, that age being interpreted by the Commission as being that defined in the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations. The interaction of the fifth paragraph of Article 42c of the Staff Regulations with the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations led, according to the Commission’s analysis in that case, to the official in question being placed on leave in the interests of the service and simultaneously automatically retired (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraph 16).
55 It thus apparent from the abovementioned considerations set out by the judge hearing the application for interim measures that, with regard to the scope of Article 42c of the Staff Regulations, he considered that, at first sight, that provision could not be applied to an official who had reached ‘pensionable age’ inasmuch as that application would result in the imposition of leave in the interests of the service and simultaneously in automatic retirement.
56 In the present case, it is common ground that Article 42c of the Staff Regulations was applied to the applicant on 1 April 2017, when he was 61 years of age and had consequently passed ‘pensionable age’, which, for him, was set at 60 years, 4 months by virtue of the table appearing in the second subparagraph of Article 22(1) of Annex XIII to the Staff Regulations. Thus, the contested decision placed the applicant on leave in the interests of the service and simultaneously automatically retired him. Consequently, it is necessary, prior to examining the pleas in law on which the applicant relied, to examine the scope of Article 42c of the Staff Regulations or, in other words, the question of whether that provision may be applied to an official who, like the applicant, has already reached ‘pensionable age’.
57 Admittedly, it must be observed that the applicant has not put forward a plea in law alleging breach of the scope of the law containing the issue set out in paragraph 56 above.
58 However, it should be pointed out that the applicant, in the context of the third and fourth pleas in law, relied on arguments the examination of which presupposes the interpretation of Article 42c of the Staff Regulations and the definition of its scope. More specifically, in the context of the third plea in law, the applicant maintained that the combined application of Article 42c of the Staff Regulations and Article 22 of Annex XIII thereto allowed the authorities ‘suddenly and considerably to lower the age of automatic termination of the active employment of an official without laying down transitional measures to protect his legitimate expectation of remaining in service until the age of his automatic retirement in accordance with Article 52 of the Staff Regulations and Annex XIII thereto’ (see paragraph 109 of the application). In the context of the fourth plea in law, the applicant argued that the contested decision unlawfully deprived him of the benefit of the allowance calculated in accordance with Annex IV to the Staff Regulations and infringed the first subparagraph of Article 22(2) of Annex XIII to the Staff Regulations, inasmuch as it deprived him of his right to acquire additional pension rights under the latter provision (paragraphs 125 to 127 of the application). Consequently, those arguments relate to the relationship between Article 42c of the Staff Regulations and other provisions of those regulations and the examination of those arguments thus involves the interpretation of that provision and the definition of its scope.
59 In that regard, it has consistently been held that while the Court must adjudicate only on the application of the parties, who must define the scope of the dispute, it cannot be bound solely by the arguments which they put forward in support of their claims, as otherwise it would, should the case arise, be compelled to base its decisions on legally flawed considerations (see judgment of 8 July 2010, Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 65 and the case-law cited). It follows that the Court is required, in the present case, to examine whether Article 42c of the Staff Regulations may be applied to an official who, like the applicant, has already reached ‘pensionable age’ within the meaning of the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations and, in that sense, to examine the scope of that provision, in so far as that examination constitutes a prerequisite for the examination of certain arguments put forward by the applicant (see, to that effect, judgment of 8 July 2010, Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 66).
60 In any event, even assuming that the abovementioned issue relating to the definition of the scope of Article 42c of the Staff Regulations falls outside the scope of the dispute as defined by the parties, it has already been held that a plea alleging breach of the scope of the law concerns a matter of public policy and that it is for the EU Courts to consider it of their own motion (judgment of 15 July 1994, Browet and Others v Commission, T‑576/93 to T‑582/93, EU:T:1994:93, paragraph 35).
61 In the present case, the Court would manifestly be neglecting its function as the arbiter of legality if it failed of its own motion to make a finding that the contested decision had been adopted on the basis of a rule, namely Article 42c of the Staff Regulations, that was not applicable to the case in point and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule (see, to that effect, judgment of 21 February 2008, Putterie-De-Beukelaer v Commission, F‑31/07, EU:F:2008:23, paragraph 51, not set aside on that point by the judgment of 8 July 2010, Commission v Putterie-De-Beukelaer (T‑160/08 P, EU:T:2010:294)).
62 In their written replies to the question put by the Court under Article 89 of the Rules of Procedure (see paragraph 32 above), the parties had the opportunity to express their views both on the power of the Court to raise of its own motion the plea in law alleging breach of the scope of the law, as described in paragraph 56 above, and on the merits of that plea.
63 With regard to the question of admissibility, the Commission admitted that the plea in law alleging breach of the scope of the law is a plea involving a matter of public policy, which the Court may raise of its own motion. According to the Commission, the scope of the law is breached where the contested decision has been adopted on the basis ‘of a rule that is not applicable to the case in point’ under the relevant case-law. That is, in particular, the case of general implementing rules or provisions which have been repealed and are therefore inapplicable ratione temporis. However, according to the Commission, inasmuch as Article 42c of the Staff Regulations constitutes a rule which is in force and applicable to the present dispute, the question raised by the Court does not concern the scope of the law, but concerns the interpretation of that provision, and in this case the question of whether that provision may apply to the official concerned where the imposition of leave in the interests of the service also results in the automatic retirement of the interested party. The Commission argues, in addition, that, in any event, the plea in law alleging possible breach of the scope of the law does not appear in the complaint and that it is inadmissible for breach of the principle of consistency.
64 The Council argued that the plea in law alleging breach of the scope of the law, as described in paragraph 56 above, constituted a plea relating to the substantive legality of the contested decision and that consequently it could not be raised by the EU courts of their own motion.
65 With regard to that objection on the part of the Council, it should be pointed out that it has already been held that the EU courts have the power and, where appropriate, a duty to raise certain pleas of substantive legality of their own motion. That applies to a plea in law alleging breach of the scope of the law (see paragraph 60 above). Similarly, the force of res judicata with absolute effect is a plea of substantive legality involving a matter of public policy, which the courts must raise of their own motion (judgment of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 45).
66 With regard to the Commission’s objection (see paragraph 63 above), it is sufficient to note that it does not follow from the case-law that a plea in law alleging breach of the scope of the law only covers cases where the rule at issue is inapplicable ratione temporis, but that that plea covers every case in which the rule serving as the basis of the contested act is not applicable (see, to that effect, judgment of 21 February 2008, Putterie-De-Beukelaer v Commission, F‑31/07, EU:F:2008:23, paragraph 51, not set aside on that point by the judgment of 8 July 2010, Commission v Putterie-De-Beukelaer (T‑160/08 P, EU:T:2010:294)). In addition, the fact that the Court must interpret Article 42c of the Staff Regulations in order to determine its scope does not mean that the issue set out in paragraph 56 above does not concern the scope of Article 42c of the Staff Regulations. Finally, it should be noted that the principle of consistency between the administrative complaint and the legal action does not prevent the EU Courts from raising a plea involving a matter of public policy of their own motion (see, to that effect, judgment of 14 February 2017, Kerstens v Commission, T‑270/16 P, not published, EU:T:2017:74, paragraphs 66 to 70).
67 In view of the considerations set out in paragraphs 50 to 66 above, it is necessary to examine, in the present case, the plea in law alleging breach of the scope of Article 42c of the Staff Regulations, which concerns the question of whether that provision may be applied to an official who, like the applicant, has already reached ‘pensionable age’.
Merits of the plea in law alleging breach of the scope of the law
68 As has already been noted (see paragraph 62 above), the parties had the opportunity to express in writing their views on the merits of the plea in law alleging breach of the scope of the law.
69 In particular, the Commission, relying on arguments based, inter alia, on the wording of Article 42c of the Staff Regulations and its ratio legis, disputes that that provision could not be applied to officials who have reached ‘pensionable age’.
70 The Parliament merely argued that it does not appear that the EU legislature intended such a delimitation and stated that, to date, it had not applied Article 42c of the Staff Regulations to officials who had reached or passed ‘pensionable age’ as defined by Article 22 of Annex XIII to the Staff Regulations.
71 The Council did not adopt a position on the merits of the abovementioned plea in law and indicated that it had not applied Article 42c of the Staff Regulations to officials who had passed ‘pensionable age’.
72 By way of a preliminary point, it should be recalled that the applicant was placed on leave in the interests of the service and simultaneously automatically retired by virtue of the combined application of the fifth paragraph of Article 42c of the Staff Regulations and Article 22(1) of Annex XIII to the Staff Regulations (see paragraph 15 above).
73 It is absolutely clear from the fifth paragraph of Article 42c of the Staff Regulations that the leave in the interests of the service of the officials concerned may not extend beyond ‘pensionable age’, that age being determined, for officials who entered the service before 1 January 2014, by the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, so that, if the official placed on leave in the interests of the service has already reached the abovementioned ‘pensionable age’, that official must simultaneously be automatically retired. That analysis was applied in the contested decision given that, on the effective date of the contested decision, the applicant had already reached ‘pensionable age’ (see paragraph 56 above).
74 It follows that, in examining the question of whether Article 42c of the Staff Regulations may be applied to an official who has reached ‘pensionable age’, the EU Courts must take into account the fact that that application leads to that official’s being placed on leave and simultaneously automatically retired.
75 To examine the abovementioned question, it is necessary to interpret Article 42c of the Staff Regulations.
– Literal interpretation
76 The first paragraph of Article 42c of the Staff Regulations provides that the imposition of leave in the interests of the service on the official concerned shall apply ‘at the earliest five years before the official’s pensionable age’. As the Commission, in essence, argued, the expression ‘official’s pensionable age’, found in the first paragraph of Article 42c of the Staff Regulations, corresponds to the expression ‘pensionable age’ found in the fourth and fifth paragraphs of that provision. Consequently, to determine the ‘official’s pensionable age’ under the first paragraph of Article 42c of the Staff Regulations, with regard to officials who entered the service before 1 January 2014, it is necessary, as for the determination of ‘pensionable age’ under the fourth and fifth paragraphs of Article 42c of the Staff Regulations, to refer to the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, which states the following:
‘For officials in service before 1 January 2014[,] pensionable age to be taken into consideration for all references to the pensionable age in these Staff Regulations shall be determined in accordance with the above provisions, save as otherwise provided in these Staff Regulations.’
77 The words ‘above provisions’ in the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations refer to the first four subparagraphs of that provision, which specify the age from which officials who entered the service before 1 January 2014 may seek to retire and receive a retirement pension.
78 With regard to officials who entered the service after 1 January 2014, the words ‘official’s pensionable age’ in the first paragraph of Article 42c of the Staff Regulations refer to the age of automatic retirement provided for in point (a) of the first paragraph of Article 52 of the Staff Regulations, which is 66, as the parties confirmed at the hearing.
79 It is therefore apparent from the wording of the first paragraph of Article 42c of the Staff Regulations that that provision provides information on the date from which that provision may be applied to an official, namely ‘at the earliest five years before the official’s pensionable age’. In addition, as the Commission rightly argues, with regard to officials who entered the service before 1 January 2014, the wording of that provision does not preclude the possibility that it may be applied to an official who has reached and, a fortiori, passed ‘the official’s pensionable age’.
80 However, it should be recalled that the fourth paragraph of Article 42c of the Staff Regulations provides that the duration of the leave in the interests of the service shall correspond ‘in principle’ to the period until the official reaches ‘pensionable age’, but that, ‘in exceptional situations’, the appointing authority may decide to put an end to the leave and reinstate the official.
81 The words ‘duration of the leave’ and ‘period until the official reaches pensionable age’ found in the first sentence of the fourth paragraph of Article 42c of the Staff Regulations support the conclusion of the judge hearing the application for interim measures in the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351, paragraph 59), that leave in the interests of the service must have a certain duration. Contrary to what the Commission argues, the words ‘in principle’ found in that sentence do not call into question the abovementioned conclusion. Those words must be understood in the light of the second sentence of the fourth paragraph of Article 42c of the Staff Regulations, which states that:
‘However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official.’
82 It is thus clear that the words ‘in principle’ do not demonstrate the existence of a possible exception to the principle that leave in the interests of the service must have a certain duration, but demonstrate that it is possible to derogate from the principle that leave in the interests of the service ends on the date on which the official concerned reaches ‘pensionable age’, that possible derogation being linked to the fact that the appointing authority may, ‘in exceptional situations’, decide to reinstate that official, thereby putting an end to the leave in the interests of the service.
83 The argument that leave in the interests of the service must have a certain duration is supported by the wording of the fifth paragraph of Article 42c of the Staff Regulations, which provides that ‘when the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired’. It follows from that wording, and more specifically from the use of the verb ‘to reach’, that automatic retirement assumes that the official concerned is on leave in the interests of the service on the date on which he reaches ‘pensionable age’ and that that leave has a certain duration.
84 In view of the foregoing considerations, it must be found that the wording of Article 42c of the Staff Regulations supports the argument that leave in the interests of the service must have a certain duration, which precludes the possibility that the imposition of that leave may be concomitant with automatic retirement. The preclusion of the possibility that the imposition of leave in the interests of the service may be concomitant with the automatic retirement of the official concerned means, in view of the considerations set out in paragraphs 73 and 74 above, that the abovementioned provision may not be applied to officials who, like the applicant, have reached ‘pensionable age’.
85 It is necessary to examine whether that conclusion is invalidated by the contextual and teleological interpretation of Article 42c of the Staff Regulations.
– Contextual interpretation
86 It should be recalled that Article 42c of the Staff Regulations is part of Chapter 2 of Title III of the Staff Regulations, headed ‘Administrative status’. In accordance with Article 35 of the Staff Regulations, which appears in the same chapter, an official may be assigned one of the following administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service, parental leave or family leave and leave in the interests of the service.
87 In contrast, ‘termination of service’ is governed by Chapter 4 of Title III of the Staff Regulations. Article 47 of the Staff Regulations, which appears in that chapter, defines the circumstances whereby services shall be terminated as being resignation, compulsory resignation, retirement in the interests of the service, dismissal for incompetence, removal from post, retirement and death.
88 It is therefore clear that, whilst leave in the interests of the service was designed by the EU legislature to be an ‘administrative status’ which may be assigned to an official during his career in the EU institutions, the Commission’s argument relating to the possibility of applying Article 42c of the Staff Regulations to an official who has reached ‘pensionable age’ and, thus, to the possibility of his being placed on leave in the interests of the service and simultaneously automatically retired, results in the transformation of the measure at issue from an ‘administrative status’ into circumstances of ‘termination of service’. As the judge hearing the application for interim measures pointed out in the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351, paragraph 61), the application by the Commission of Article 42c of the Staff Regulations appears to be an ‘automatic retirement in the interests of the service’ against the wishes of the interested party.
89 It follows from the foregoing considerations that the location of Article 42c of the Staff Regulations in Chapter 2 of Title III of those regulations is difficult to reconcile with the Commission’s abovementioned argument and, in any event, does not invalidate the conclusion set out in paragraph 84 above.
– Teleological interpretation
90 The Commission maintains that the ratio legis of Article 42c of the Staff Regulations is to optimise the management of the human resources of the institutions. That provision allows a certain flexibility in the management of staff close to retirement or about to retire, whilst offering reasonable compensation to the persons concerned. According to the Commission, the EU legislature did not intend to limit the scope of the provision to officials who are not about to retire. The optimisation sought calls for a very wide discretion especially since, on the one hand, it is carried out with due regard to the interests of the official concerned and, on the other, the measure is primarily aimed at officials close to retirement. It would be paradoxical if the measure were not applicable to officials who have already reached their pensionable age. The Commission thus maintains that that delimitation of the scope of Article 42c of the Staff Regulations deprives that provision of some of its effectiveness and purpose.
91 As the Commission rightly argues, citing recital 7 of Regulation No 1023/2013, the aim of Article 42c of the Staff Regulations is indeed, ultimately, to optimise the management of the human resources of the institutions (see, to that effect, judgment of 14 December 2018, FV v Council, T‑750/16, under appeal, EU:T:2018:972, paragraphs 106, 118, 121 and 123). However, as the Commission itself furthermore points out, the EU legislature ensured that the imposition of leave in the interests of the service is done with due regard to the interests of the officials concerned.
92 In that regard, it should be recalled that the seventh paragraph of Article 42c of the Staff Regulations provides that an official placed on leave in the interests of the service shall receive an allowance calculated in accordance with Annex IV to the Staff Regulations. According to the first paragraph of the sole article of that annex, read in the light of Article 42c of the Staff Regulations, that monthly allowance is, for the first three months of the application of the measure, equal to the basic salary of the official concerned. From the fourth to the sixth month, it amounts to 85% of the basic salary and, thereafter and until automatic retirement, to 70% of the basic salary.
93 As a provision, laid down by the EU legislature, which mitigates the negative impact on the officials concerned of being placed on leave in the interests of the service, reference should also be made to the eighth paragraph of Article 42c of the Staff Regulations, which, in essence, allows the official concerned to continue to contribute to the pension scheme during the period whilst he is on leave in the interests of the service, in order to increase the amount of the pension which he will receive when he retires.
94 It must be observed that, if it were permissible to apply Article 42c of the Staff Regulations to an official who has reached ‘pensionable age’ and consequently for his automatic retirement to be concomitant with his being placed on leave in the interests of the service, that official would not derive any benefit from the provisions laid down by the seventh and eighth paragraphs of Article 42c of the Staff Regulations, since the duration of the leave in the interests of the service would be zero. In those circumstances, the balance sought by the EU legislature, in adopting Article 42c of the Staff Regulations, between considerations relating to the optimal management of the human resources of the institutions and considerations relating to the adequate protection of the interests of the officials concerned, would be upset to the detriment of the latter considerations.
95 In addition, it must also be observed that, in the event of automatic retirement at the same time as the imposition of leave in the interests of the service, the appointing authority would not have the option provided by the fourth paragraph of Article 42c of the Staff Regulations, even if only ‘in exceptional situations’, to put an end to the leave in the interests of the service and reinstate the official. It follows that the abovementioned scenario is difficult to reconcile with that provision inasmuch as, on the one hand, the result of that scenario is that, by removing all discretion from the institutions, it automatically deprives them of a staff-management tool constituted by the possibility of reinstating the official concerned and, on the other, it deprives that official of the possibility of such reinstatement.
96 In view of the foregoing considerations, it must be found that the teleological interpretation of Article 42c of the Staff Regulations does not support the Commission’s argument, but, on the other hand, supports the conclusion set out in paragraph 84 above. That finding is in no way called into question by the judgment of 14 December 2018, FV v Council (T‑750/16, under appeal, EU:T:2018:972), cited by the institutions at the hearing. In that judgment, the Court, ruling on the legality of a decision applying Article 42c of the Staff Regulations to an official who had not reached ‘pensionable age’, did indeed point out that an objective pursued by the EU legislature in adopting that provision was to optimise the cost-effectiveness of investment in the vocational training of officials and, ultimately, to make available to the institutions an additional staff-management tool (judgment of 14 December 2018, FV v Council, T‑750/16, under appeal, EU:T:2018:972, paragraphs 106, 118, 121 and 123). However, those observations on the part of the Court do not contradict the considerations set out in paragraphs 91 and 94 above relating to the balance sought by the EU legislature in adopting Article 42c of the Staff Regulations.
97 Consequently, following the interpretation of Article 42c of the Staff Regulations, it must be concluded that that provision may not be applied to officials who, like the applicant, have reached ‘pensionable age’ within the meaning of that provision. It follows that the Commission, by adopting the contested decision on the basis of that provision, breached the scope of that provision and that the contested decision must, therefore, be annulled, without its being necessary to examine the pleas in law set out in paragraph 48 above.
Costs
98 Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
99 Since the Commission has been essentially unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant, including the costs relating to the proceedings for interim measures.
100 The Parliament and the Council shall bear their own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Annuls the decision of the European Commission of 21 December 2016 to place RV on leave in the interests of the service and simultaneously to retire RV automatically;
2. Dismisses the remainder of the action;
3. Orders the Commission to bear its own costs and to pay those incurred by RV, including those incidental to the proceedings for interim measures;
4. Orders the European Parliament and the Council of the European Union to bear their own costs.
Delivered in open court in Luxembourg on 12 June 2019.
[Signatures]