Case T‑769/16
Maxime Picard
v
European Commission
Judgment of the General Court (First Chamber, Extended Composition), 24 March 2021
(Civil service – Contract staff – Reform of the Staff Regulations 2014 – Transitional provisions relating to certain methods for calculating pension rights – Change in conditions after the signature of a new contract as a member of the contract staff – Definition of to ‘be in service’)
Officials – Pensions – Methods of calculation of pension rights – Transitional provisions for Regulation No 1023/2013 – Application by analogy with contract staff in service on 31 December 2013 – Definition of to ‘be in service’ – Signature by a member of the contract staff of a new contract, entailing a substantial change in his duties – Not included
(Staff Regulations of Officials, Annex XIII, Arts 21 and 22, as amended by Regulation No 1023/2013; Conditions of Employment of Other Servants of the European Union, Annex, Art. 1(1) and 3a; Council Regulation No 723/2004, recital 36)
(see paragraphs 65-83, 90, 93)
Résumé
The applicant, Mr Maxime Picard, has been a member of the contract staff at the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) since 2008. He was initially engaged as a member of the contract staff in the first function group, under a contract signed in 2008 (‘the 2008 contract’) and renewed on three occasions for a fixed period, before being renewed for an indefinite period in 2011.
On 16 May 2014, the applicant signed a new contract as a member of the contract staff for an indefinite period with classification in the second function group, after demonstrating that he had performed tasks in that function group. That contract took effect on 1 June 2014 (‘the 2014 contract’).
In the meantime, the 2014 reform of the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants (1) introduced a new annual pension accrual rate of 1.8%, which is less favourable than the previous rate of 1.9%, and set the retirement age at 66, up from age 63 years. (2) However, according to the transitional regime provided for therein, an official ‘who entered into service between 1 May 2004 and 31 December 2013’ continues to acquire pension rights at the annual acquisition rate of 1.9%. (3) Furthermore, ‘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 of 64 years and 8 months.’ (4) Those transitional provisions apply by analogy to other staff in post on 31 December 2013. (5)
As he had signed his new contract after the reform of the Staff Regulations came into force, the applicant requested clarifications from the manager of the PMO’s ‘Pensions Sector’ regarding its implications for his position. In his reply, the manager confirmed that, because of the change of contract, from 1 June 2014, the applicant was not covered by the transitional arrangements relating to the rate of acquisition of pension rights and retirement age.
Since the complaint lodged by the applicant against that reply was dismissed, he brought an action before the General Court for annulment of the manager’s reply and the decision rejecting his complaint. In support of his action, the applicant submits that, for the purposes of applying the transitional provisions at issue, the administration should have used 1 July 2008 as the date of entry into service, the date when he was initially recruited as a member of the contract staff in the first function group, and not the date on which the new 2014 contract began.
However, the Eighth Chamber, Extended Composition, of the General Court dismisses that action. In its judgment, the General Court rules on the application of the transitional provisions concerning the accrual rate of pension rights and retirement age introduced by the reform of the Staff Regulations to contract staff who signed a new contract after that reform. (6)
Findings of the Court
First, the General Court considers the interpretation of Article 1(1) of the Annex to the Conditions of Employment of Other Servants, according to which the transitional provisions relating to the rate of acquisition of pension rights and the retirement age, introduced by the reform of the Staff Regulations for officials, ‘shall apply by analogy to other servants in service on 31 December 2013’. (7) The General Court recalls, first of all, that the transitional provisions must be interpreted strictly and that their application by analogy to other servants requires consideration of the specific characteristics of officials and other servants. In that regard, the difference between those two categories of staff lies, in particular, in the nature of the tasks performed and the legal link between the official or other member of staff and the administration of the European Union. More specifically, an official enters and remains in the service of the Union administration by virtue of a statutory link, whereas a contract agent enters and remains in service by virtue of a contractual link. (8) Therefore, in order to be covered by the transitional rules, other staff must ‘be in service on 31 December 2013’, that is have a contract with the Union administration on that date.
In the second place, the General Court clarifies the concept of ‘to be in service on 31 December 2013’. According to the General Court, that situation can be established only where the contract staff member does not sign a new contract which entails the start of a new employment relationship with the EU administration, namely, where that contract does not substantially modify his duties, such as to call into question the functional continuity of that employment relationship. It follows that the transitional provisions apply by analogy to other staff serving on 31 December 2013 and who remain, after that date, pursuant to a contract that does not lead to a break in the employment relationship. That interpretation takes account of the legal value of the signing of a new contract while preserving the acquired rights and legitimate expectations of the staff.
In the present case, the General Court observes that the new contract signed by the applicant allowed him access to a higher function group, which called into question the functional continuity of the employment relationship which he had with the EU administration under the contract of 2008. Therefore, although the applicant was in service on 31 December 2013 under the original contract of 2008, the new contract of 2014 entailed termination of that employment relationship and the start of a new contract, with the result that the applicant cannot benefit from the transitional provisions concerning the accrual rate of pension rights and retirement age.