ORDER OF THE GENERAL COURT (Fifth Chamber)
27 September 2018 (*)
[Text rectified by order of 8 November 2018]
(Civil service — EIB staff — Transfer of pension rights — Amount transferred — Non-contractual liability — Pre-litigation procedure — Conciliation procedure before the EIB — Reasonable period — Manifest inadmissibility)
In Case T‑589/16,
HS, represented initially by A. Senes and L. Payot, then by A. Senes, lawyers,
applicant,
v
[Rectified by order of 8 November 2018]
European Investment Bank (EIB), represented initially by T. Gilliams, G. Nuvoli, P. Kiiver and G. Faedo, then by T. Gilliams, P. Kiiver and G. Faedo, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
ACTION to seek compensation, on the basis of Article 270 TFEU, for damage allegedly suffered by the applicant as a result of errors committed by the EIB in the transfer of the applicant’s pension rights from the national pension scheme to the EIB pension scheme,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, A. Dittrich and P.G. Xuereb (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 According to Article 36(1) of the Staff Regulations of the European Investment Bank (EIB), staff members of the EIB benefit from a pension scheme financed by the EIB and its staff. That pension scheme is governed by the EIB’s Pension Scheme Regulations, which were adopted in accordance with Article 36 of the EIB Staff Regulations on 28 May 1964 and constitute, in their amended version applicable to the dispute, the legal framework of the present case (the ‘Pension Scheme Regulation’). According to that Regulation, the amount of the pension to be granted to EIB staff members depends, in particular, on the number of insurance years completed under the EIB pension scheme.
2 Article 21 of the Pension Scheme Regulation provides as follows:
‘21.1: The purchase of additional insurance years shall be sanctioned under a coordination or specific transfer agreement concluded with a previous pension scheme in accordance with Article 79.1.
The purchase of insurance years shall be effected by payment of a capital sum corresponding to all entitlements accrued under the regulations of the previous pension scheme.
...
21.3: The cost of purchasing an additional insurance year shall be obtained by multiplying the purchaser’s salary subject to superannuation contributions at the time of purchase by the annual retirement pension rate (2%) and by the actuarial tariff applicable for the purchaser’s age at the time of purchase.
...’
3 On 24 November 2000, the EIB and the Istituto Nazionale della Previdenza Sociale (INPS, National Social Security Institute, Italy) signed a pension rights transfer agreement applicable to EIB staff (‘the Agreement’), which provides, under Title B, the following as regards transfers of pension rights from the INPS to the EIB:
‘1. Transfer may be requested by EIB staff in service at the time of the application and for insurance periods accrued within the INPS which have not given rise to payment of a pension. The application, which must contain the request for transfer of the pension rights in their entirety, shall be submitted direct to the INPS and, for information, to the EIB. The EIB shall, within 30 days following the date of the application, communicate to the INPS the redemption value, calculated in accordance with the provisions of its own regulations.
2. The INPS shall, within 60 days following the date of the application, notify the insured and the EIB of the relevant amount, after deduction of transfer expenses, determined in accordance with the following criteria:
...
3. The INPS shall, after obtaining the consent of the insured, which consent must be given within 30 days after the date of notification, failing which it shall be inoperative, pay to the EIB within 60 days following such consent the redemption sum — the full amount referred to in paragraph 1 above — calculated in accordance with its own regulations.
4. Payments made within the prescribed period shall give rise, for pension purposes, to the constitution of pension rights in accordance with the norms laid down by the EIB.
...’
4 By email of 4 May 2011 addressed to the EIB’s pensions department, the applicant, HS, an EIB agent since 1 August 2010, requested information on a potential transfer of her pension rights from the INPS to the EIB pension scheme.
5 In its reply dated the same day, the EIB’s pensions department informed the applicant that she had to submit a transfer request to the INPS, with a copy to the EIB. According to the EIB:
‘[The INPS will then write to you] to confirm the exact amount available to transfer. At this stage, [the EIB’s pensions department] will provide you with a simulation showing the additional insurance period that the transfer would provide within the EIB Staff Pension Scheme. You can then decide whether you wish to proceed with the transfer.’
6 By email of 5 May 2011, the applicant informed the EIB’s pensions department of the fact that she had sent, that day, a transfer request, attaching a copy of that letter. In that letter, dated 3 May 2011, the applicant requested the INPS to make the transfer to the EIB pension scheme of all of her pension rights accrued with the INPS. The applicant completed that request by letter of 3 October 2011.
7 By letter of 25 October 2011, the EIB informed the INPS that the amount of the redemption value, calculated in accordance with the provisions of the Pension Scheme Regulation, was EUR 115 118.
8 In a letter to the EIB dated 17 February 2012, the INPS indicated that the amount of the applicant’s pension rights that could be transferred to the EIB pension scheme amounted to EUR 115 118. It is also apparent from that letter that the amount of the contributions made by the applicant under the INPS pension scheme amounted to EUR 170 759.17.
9 In an email of 2 April 2012, the EIB pensions department informed the applicant that EUR 115 118 was available for transfer to the EIB pension scheme and that such a transfer would, subject to the final calculation, give entitlement to 135 months of additional insurance under the EIB pension scheme. In addition, the EIB pensions department informed the applicant that, in the event that she would wish to proceed with the transfer, she would have to prepare a letter of acceptance which would have to be sent to the INPS by the EIB.
10 By email of 3 April 2012, the applicant provided the EIB’s pensions department with a letter to the INPS expressing her agreement to the proposed transfer.
11 Shortly after sending that email, the applicant went to the INPS Office in Milan (Italy) and obtained, on that occasion, a copy of the letter from the INPS to the EIB of 17 February 2012.
12 By email of 10 April 2012, the applicant asked the INPS for an explanation of the difference between the amount of EUR 115 118 envisaged for the transfer and the total amount of her contributions in Italy which amounted to EUR 170 759.17.
13 In its reply of the same day, the INPS informed the applicant that the EIB had requested a specific amount, that it was that amount that would be transferred and that the INPS would not transfer an amount above that amount.
14 In an email of 12 April 2012, the applicant asked the INPS to specify what would happen to the amount which would not be transferred to the EIB and to indicate in particular whether she would be entitled to receive, in the future, a pension in Italy.
15 By letter of 25 April 2012, the EIB informed the INPS of the fact that the applicant was in agreement with the proposed transfer, attaching to that letter the applicant’s letter of 3 April 2012.
16 On 26 April 2012, the applicant contacted Ms P., the head of the EIB’s pensions department. In her email, the applicant noted that colleagues in the HR department who were dealing with her file had already explained to her that ‘as per [the Agreement], the INPS limits its transfer to the provisional amount previously communicated by [the] EIB to cover the same period under its scheme and does not transfer the entire amount accrued position when of a bigger amount. So basically the transfer [is] based on the period worked rather than [referring to] the amount effectively contributed in the national scheme.’ The applicant also stated that she understood that the ‘EIB [had] operated according to the practice in use in the light of the interpretation of this agreement.’ According to the applicant, the transfer would therefore result in a loss of more than EUR 55 000 for her. The applicant asked the EIB whether it was not possible for the latter to ask the INPS to transfer the total amount of her rights acquired in Italy by means of a broad interpretation of the Agreement.
17 In its reply of 3 May 2012 to the applicant’s email of 12 April 2012, the INPS claimed that its position complied with the Agreement.
18 In an email of 14 May 2012, Ms P. informed the applicant that the EIB was not in a position to change the provisions of the Agreement. Mrs P. suggested to the applicant that she request the INPS to issue a certificate attesting the rights which she could potentially derive from the amount of her contributions which had not been transferred to the EIB pension scheme.
19 On 3 October 2012, the EIB issued a note to the applicant confirming that it had received, on 19 September 2012, an amount of EUR 119 226.86 from the INPS ‘corresponding to [her] pension rights acquired in Italy’ and that this transfer represented a purchase of 138 months of insurance credited to her in the EIB pension scheme.
20 In July/August 2014, the EIB prepared a draft letter requesting the INPS to pay to the EIB the difference between the pension contributions that the applicant had made under the INPS scheme and the amount already transferred to the EIB. That letter was never sent to the INPS.
21 In October 2014, the applicant contacted the College of Staff Representatives at the EIB, which recommended that she contact the EIB Pension Board.
22 In January 2015, the EIB confirmed to the applicant that following the transfer of her pension rights acquired under the INPS to the EIB scheme, she had lost part of the rights for which she had contributed in the context of the INPS scheme.
23 In February 2015, the EIB Pension Board recommended that the EIB pay compensation to any staff member who had not been duly informed of the application of the Agreement and had suffered damage following the application of that Agreement.
24 On 25 November 2015, the applicant launched conciliation proceedings under Article 41 of the EIB Staff Regulations.
25 On the same day, the applicant requested the President of the EIB, on the basis of Article 90 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) to make a definitive decision on her pension rights.
Procedure and forms of order sought
26 By application lodged at the Civil Service Tribunal Registry on 5 April 2016, the applicant brought the present action. The case was registered under number F‑19/16.
27 By separate document lodged at the Registry on 2 August 2016, the Commission raised a plea of inadmissibility pursuant to Article 83 of the Rules of Procedure of the Civil Service Tribunal.
28 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. The case was registered under number T‑589/16 and assigned to the Fifth Chamber.
29 By document lodged at the General Court Registry on 15 September 2016, the applicant submitted her observations on the EIB’s plea of inadmissibility.
30 By order of the Court of 19 December 2016, the plea was joined to the substance and costs were reserved.
31 The defence, the reply and the rejoinder were lodged at the General Court Registry on 2 February, 3 April, and 14 June 2017 respectively.
32 On a proposal from the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of the procedure pursuant to Article 89 of the Rules of Procedure of the General Court, requested the parties to respond to certain questions and to produce certain documents. The applicant and the EIB lodged their responses and the documents requested by the General Court on 8 February 2018.
33 By documents lodged at the General Court Registry on 28 February and 10 April 2018, the applicant submitted new evidence and raised a new plea in law, alleging that she had been discriminated against by the EIB.
34 By documents lodged at the General Court Registry on 26 April and 2 May 2018, the EIB submitted its observations on the new evidence submitted and the new plea raised.
35 The applicant claims that the Court should:
– order the EIB to repair the harm which she has suffered due to the loss of her pension rights in the amount of EUR 55 641.17, plus interest accrued at the applicable rate calculated retroactively, as if the original transfer had been done for the full amount of her pensionable rights existing with the INPS, when the original transfer request was made;
– alternatively, order the EIB to immediately return to her the months giving right to a pension for an amount of EUR 55 641.17, plus interest accrued at the applicable rate calculated retroactively as if the original transfer had been made for the full amount of her pension rights existing with the INPS;
– order the EIB to pay all such further compensation as the Court considers fair;
– order the EIB to support the costs of the present proceedings, which are estimated as EUR 3 000.
36 The EIB contends that the Court should:
– dismiss the action as manifestly inadmissible;
– in any event, dismiss the action as unfounded;
– order the applicant to pay all of the costs.
Law
Subject matter of the action
37 In Section V of the application, on ‘Legal arguments’, the applicant has provided the following information with regard to the subject matter of her action under the subheading ‘First and unique mean issued from the peculiarity of [the Agreement]’, after describing, in paragraph 36 of the application, the operation of the Agreement:
– ‘In some cases, as for [the applicant], the application of these rules can lead to a discrepancy between the amount of pensionable rights resulting in INPS’s files and the amount that [the] EIB requests to be transferred. In other words [the] peculiarity of [the Agreement] is wrong in this, [in] that [the] INPS may decide to transfer only a portion of the employee’s acquired pensions rights’ (paragraph 37 of the application);
– ‘When no action is taken by [the] EIB to challenge this choice of [the] INPS, the latter closes the individual position of the EIB staff from its books, and keeps the remaining sums. The pensionable rights get entirely lost and cannot form any basis for future pension entitlements’ (paragraph 38 of the application);
– ‘When [the applicant] applied for the transfer of her pension rights, in 2011 and 2012, this peculiarity was not mentioned nor explained to [her], who was totally unaware of that fact and its possible consequences to her pension rights when she gave her consent to the transfer of the amount of her pension rights’ (paragraph 42 of the application);
– ‘[T]he peculiarity of this pensionable rights transfer system, coupled with lack of information of its consequences to [the applicant] caused a real and quantifiable damage to her, i.e. the loss of EUR 55 641.17 of which [the] EIB is clearly and directly responsible’ (paragraph 44 of the application)
– ‘What [the applicant] seeks is an order giving effect to contractual arrangements which were agreed long ago as part of [the Agreement], but which [the] EIB has not properly complied with’ (paragraph 48 of the application).
38 In the context of the measures of organisation of procedure referred to in paragraph 32 above, the General Court asked the applicant to indicate precisely the act or omission (or the acts or omissions) on which its claim for compensation was based.
39 In her reply to that question, the applicant pointed out that:
‘... The “peculiarity” of the ... [Agreement], is the single plea in law to the extent that it is the ground on which [the] EIB based its mistake, by requesting a partial amount of contribution to [the] INPS, instead of demanding the transfer of the entirety of the pension rights, in compliance with the request of the [a]pplicant.
...
The EIB did not show the necessary care in this case, given that it agreed on a sum erroneously determined with INPS which did not [cover] the entirety of pension rights and neglected any action when requested by the [a]pplicant to claim on her behalf the entirety of her pension rights. Action that duly [the] EIB was entitled to start as the Applicant is not part of the [A]greement.
With reference to paragraph 37 of our [application], which is better explained by referring to the previous paragraph 36, the EIB has omitted to check, before indicating the final amount to be transferred by the INPS, whether its calculations were in line with those that the INPS had done of EUR 170 759.17 (see Annex A.6) and above all if this could cause damage to the applicant.
This behaviour determined the definitive loss of the applicant’s pensionable right to transfer the remaining sums not taken into consideration by the EIB, equal to EUR 55 641.17 (Annex A.6) and cancelled any basis for future claim to her lost pension entitlements.’
40 It follows from that reply that the applicant seeks to base her action for damages on two errors allegedly committed by the EIB, namely, first, the erroneous nature of the decision communicated to her on 3 October 2012 and which was taken by the latter on the transfer request (‘the 2012 Decision’) and, second, the EIB’s alleged lack of action to recover the amount of her pension rights which had not been transferred by the INPS in 2012.
41 That interpretation is confirmed by the following clarification that the applicant provided in response to one of the other questions raised by the Court:
‘First and foremost the [a]pplicant directs its action against the decision taken in 2012, but also and more important against the following inaction of the EIB in spite of her multiple requests to modify its initial demand for transfer of EUR 115 118.00 in a new demand for transfer of EUR 170 759.17.’
42 Pursuant to Article 50(1)(d) and (e) of the Rules of Procedure of the Civil Service Tribunal, applicable at the time that the present action was brought, an application is to contain the subject matter of the proceedings, a clear summary of the relevant facts and a separate, precise and structured summary of the pleas in law and arguments of law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible (see, to that effect, and by analogy, judgment of 26 October 2016, Jaber v Council, T‑154/15, not published, EU:T:2016:629, paragraph 52).
43 In the present case, it must be stated that the applicant has not met the requirements mentioned in the preceding paragraph as regards her intention to base her action for damages not only on the allegedly erroneous nature of the 2012 Decision, but also on the alleged lack of action by the EIB to recover the amount of her pension rights that had not been transferred by the INPS in 2012. In fact, it does not appear from the application with the clarity and precision required by Article 50(1)(e) of the Rules of Procedure of the Civil Service Tribunal that the action for damages was also based on that alleged lack of action. It is true that, at paragraph 38 of the application, the applicant mentions that, where the EIB raises no objection to the amount envisaged for the transfer to be made by the INPS, the latter closes in its accounts the individual position of the relevant EIB staff member and keeps the remaining amount. However, it does not appear at all from the application that the applicant wished to base her action on a loss allegedly suffered as a result of the fact that the EIB had failed to act after the adoption of the 2012 Decision, to recover the amount of her pension rights which had not been transferred by the INPS in 2012.
44 On the basis of the considerations set out in the application, it appeared possible to interpret the present action as being based not only on the allegedly erroneous nature of the 2012 Decision, but also on the alleged lack of information on the part of the EIB relating to the content and application of the Agreement. In order to obtain the necessary clarifications, the General Court therefore raised a number of questions with the applicant, including questions regarding the possibility that her appeal should be interpreted as being based on such a lack of information. However, in her reply to the General Court’s question asking her precisely to indicate the act or omission (or the acts or omissions) on which her claim for damages was based, the applicant did not in any way make any reference to that alleged lack of information (see paragraph 39 above). It should also be recalled that in her reply to another question from the General Court, the applicant stated that her action was directed against the 2012 Decision and the alleged subsequent inaction of the EIB (see paragraph 41 above), without making any reference to an alleged lack of information from the EIB.
45 In those circumstances, the present action must be regarded as referring only to the damage allegedly caused to the applicant by the 2012 Decision.
Admissibility
46 Under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
47 In the present case, the EIB contends that the applicant did not bring its action within a reasonable time and, in the alternative, that the action was premature.
48 In that regard, it is true that an action for annulment and an action for damages are independent remedies and the person concerned is at liberty to choose either one or the other, or both together. It follows that, where a decision has been taken which adversely affects an official, he is entitled, without seeking annulment of the decision in question, to bring an action based on the alleged unlawfulness of the decision with the sole purpose of obtaining compensation for the damage which he claims that the decision caused him (see judgment of 21 February 2008, Skoulidi v Commission, F‑4/07, EU:F:2008:22, paragraphs 49 to 50 and the case-law cited).
49 However, it follows from case-law that an official may not, by means of an action for the payment of damages, circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view, so that the inadmissibility of an application for annulment, in particular due to being submitted out of time, results in the claim for damages, closely linked to the application for annulment, being inadmissible (see judgment of 16 September 2013, De Nicola v EIB, T‑618/11 P, EU:T:2013:479, paragraph 95 and the case-law cited).
50 As a result, for the purposes of assessing the admissibility of an action for damages, it is necessary to examine whether the applicant seeks, by such an action, to obtain a result which is identical to that which he would have obtained from the success of an action for annulment against an act adversely affecting him which he failed to bring in good time (order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission, C‑102/14 P, not published, EU:C:2016:737, paragraph 80).
51 That is so in the present case. The application shows that the applicant takes the view that the EIB should, first, have requested the INPS to transfer the total amount of her pension rights acquired from the INPS to the EIB pension scheme and, second, calculated the periods of insurance to be credited to the applicant in the EIB pension scheme from that transfer on the basis of that total amount. The applicant could therefore have asked for the partial annulment of the 2012 Decision, since, in that decision, the EIB did not rely on the total amount of pension rights acquired by the applicant from the INPS for the calculation of periods of insurance to be credited to the applicant in the EIB pension scheme. As a matter of fact, the 2012 Decision did not have exclusively positive effects on the applicant’s legal position.
52 Article 41 of the EIB Staff Regulations, in the version applicable in the present case, provides as follows:
‘Disputes of any nature between the [EIB] and individual members of staff shall be brought before the Court of Justice [of the European Union]. In addition to proceedings being instituted before the Court of Justice, an amicable settlement shall be sought before the Bank’s Conciliation Board, in respect of disputes other than such as arise from application of the disciplinary measures provided for under Article 38.’
53 It should be noted that that article does not impose binding mandatory time limits, either for filing a request for conciliation or an action before the General Court.
54 It follows however from case-law that, in the case of an action or request where no provision of European Union law lays down a specific period of time within which that action or request is to be brought, such an action or request must be brought within a reasonable period (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 33).
55 As regards the remedies provided for by Article 41 of the EIB Staff Regulations, as applicable in the present case, their admissibility was in no way conditional upon the exhaustion of the conciliation procedure referred to therein (judgment of 27 April 2012, De Nicola v EIB, T‑37/10 P, EU:T:2012:205, paragraph 75). However, if a member of the EIB staff requests the application of that procedure, the limitation period for bringing an action before the Union judicature does not start to run until the conciliation procedure has been concluded, provided that the member of staff has made his request for conciliation within reasonable time of having been notified of the act adversely affecting him and that the duration of the conciliation procedure itself is reasonable (judgment of 6 March 2001, Dunnett and Others v EIB, T‑192/99, EU:T:2001:72, paragraph 56).
56 Since, in the present case, the applicant submitted a request for conciliation to the EIB before bringing the present action, the latter is therefore admissible only if the request for conciliation had been lodged within a reasonable period.
57 In that regard, it should be borne in mind that the reasonableness of a period is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. Consequently, the period of three months laid down in Article 91(3) of the Staff Regulations cannot be applied by analogy as a limitation period to the members of staff of the EIB when they bring an action for annulment of an EIB measure adversely affecting them (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 28 and 39).
58 It should be recalled, however, that the General Court has considered, as regards the actions covered by Article 41 of the Rules of Procedure of the EIB, that the concept of a ‘reasonable period’ has to be interpreted in the light of Articles 90 and 91 of the Staff Regulations (see order of 6 December 2002, D v EIB, T‑275/02 R, EU:T:2002:306, paragraph 32 and the case-law cited). It is true, as the Court has pointed out, that the appeal in the case before the General Court, which was brought five months after the adoption of the contested decision, was declared inadmissible only at the end of an examination which led to the finding that the applicant did not raise any particular circumstance that could justify exceeding that three-month period and counterbalance the requirement of legal certainty (judgment of 28 February 2013, Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 37). Nevertheless, the Court did not criticise the view of the Civil Service Tribunal that the concept of a ‘reasonable period’ was to be interpreted in the light of the three-month time limit provided for in Article 91(3) of the Staff Regulations. It follows that a period of three months may, in the absence of particular circumstances, be indicative of what must be regarded as constituting a reasonable period for challenging an adverse act.
59 In the present case, it is common ground that the applicant was informed of the 2012 Decision by way of the communication of 3 October 2012. It follows that the applicant’s request for conciliation was submitted nearly three years after she had been made aware of the decision adversely affecting her. It is obvious that such a period of time could not, in the absence of particular circumstances, be considered as a reasonable period to challenge that decision.
60 It is therefore necessary to examine whether, in the present case, particular circumstances might justify the delay in the applicant’s request for conciliation.
61 As regards, first of all, the issue at stake for the applicant, the applicant merely argued that the transfer of her pension rights from the INPS to the EIB had the result that part of those rights has been lost. However, and despite the undeniable importance for the applicant of the possibility of asserting her pension rights, the mere fact of a loss of part of her rights cannot, as such, be regarded as a particular circumstance within the meaning of the case-law cited above.
62 As regards, in the second place, the complexity of the case, it is true that, as the applicant has observed, it concerns a cross-border transfer of pension rights involving several institutions following different procedures. Moreover, it should be noted that the Agreement, which stipulates that the transfer request must relate to all the pension rights acquired under the INPS pension scheme, does not indicate with the desirable clarity that the amount, which can actually be transferred, is determined by the amount of the redemption value calculated by the EIB, on the basis of its own rules. However, it is clear from the evidence submitted by the applicant, at the request of the Court, that as early as April 2012, she had learned that a transfer of her pension rights acquired in Italy would concern only the amount of the redemption value calculated by the EIB and not all of her rights. Contrary to what the applicant claims, her action does not therefore concern an “extraordinarily complex” question. In any event, the applicant’s argument, submitted in the reply, that she became aware of the peculiarity of the Agreement only in October 2015 is contradicted by that evidence.
63 Admittedly, the applicant did not yet know, in 2012, that the INPS was going to decide that she could not derive any benefit from the remaining amount of her pension rights acquired from the INPS pension scheme. It should be noted, however, that in her email of 26 April 2012 addressed to Mrs P., the head of the EIB’s pensions department (see paragraph 16 above), the applicant had already indicated that the transfer would result in a loss of more than EUR 55 000 for her. In any event, the applicant had the possibility of obtaining the necessary clarifications in that respect from the INPS before deciding whether she wished to proceed with her transfer request. In addition, the applicant could have withdrawn her request after learning that she would suffer a loss as a result of the proposed transfer.
64 As regards the applicant’s argument that the complexity of the case is evident from the number of controversial responses given to her by the EIB during the period in question, while adding that evidence concerning those responses would be produced in the present proceedings, it must be stated that the applicant has never produced such evidence. In her reply to the Court’s questions, the applicant also refers to subsequent negotiations conducted by the EIB to reach a friendly settlement and to prevent her from making a formal request. However, the applicant has not produced any evidence to establish that the EIB has attempted to prevent her from bringing her case before the General Court.
65 In the third place, as regards the applicant’s conduct, the following is relevant. Firstly, it is clear from her correspondence exchanged with the EIB and the INPS before the adoption of the 2012 Decision which the applicant submitted to the General Court following a request from it, that the applicant had not retracted her agreement on the transfer despite the fact that she had been informed in April 2012 that the planned transfer would only concern the amount of the redemption value calculated by the EIB and not the total amount of her pension rights, acquired in Italy. Secondly, although the applicant asked the INPS, by email of 12 April 2012 (see paragraph 14 above), to specify what would happen to the amount which would not be transferred to the EIB and to indicate in particular, if she could benefit in the future from a pension in Italy, it does not appear from the evidence submitted by the applicant that she had received an answer to those questions or that she had insisted on such a reply before the 2012 Decision.Thirdly, although the applicant claims that she had taken several consecutive steps with the EIB concerning her pension rights,the first step referred to by the applicant in this context was the contact she made in October 2014, and therefore about two years after she had taken note of the 2012 Decision, with the College of Staff Representatives at the EIB (see paragraph 21 above).
66 In the light of the foregoing, it must be concluded that the applicant has not established the existence of any particular circumstances in the present case and that it follows that she has failed to submit her request for conciliation relating to the 2012 Decision within a reasonable period.
67 Consequently, the action must be rejected as manifestly inadmissible, without it being necessary to examine the arguments submitted by the EIB in the alternative. Consequently, it is no longer necessary to examine the new evidence adduced and the new plea raised by the applicant.
Costs
68 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the EIB.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
Hereby orders:
1. The action is dismissed.
2. HS shall pay the costs.
Luxembourg, 27 September 2018.