JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
8 November 2023 (*)
(Civil service – Accredited parliamentary assistants – Retirement pension – Request relating to certain elements of pension rights – Rejection – Concept of ‘act adversely affecting an official’ – Equal treatment – Liability)
In Case T‑39/22,
OA, represented by G. Rossi and F. Regaldo, lawyers,
applicant,
v
European Parliament, represented by D. Boytha and J. Van Pottelberge, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, L. Madise and S. Verschuur (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 26 April 2023,
gives the following
Judgment
1 By his action based on Article 270 TFEU, the applicant, [confidential], (1) seeks, first, in essence, the annulment of the decision of the European Parliament of 19 April 2021 by which it rejected the request which he had submitted under Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and which related to certain elements of his pension rights (‘the contested decision’) and the annulment of the decision of 20 October 2021 (‘the decision on the complaint’) in so far as it partially rejected his complaint and, second, compensation for the damage which he claims to have suffered as a result of the European Parliament’s alleged breach of the principle of the protection of legitimate expectations.
Background to the dispute
2 Between 2004 and 2021, the applicant worked as a parliamentary assistant in the Parliament under several contracts, namely:
– from 27 July 2004 to 1 July 2009, under an employment agreement governed by Italian law;
– from 23 June 2010 to 1 July 2014, as an accredited parliamentary assistant (‘APA’), in grade 18;
– from 2 July 2014 to 30 November 2017, as an APA, in grade 15;
– from 1 December 2017 to 1 July 2019, as an APA, in grade 16;
– from 2 July 2019 (entry into service: 8 August 2019) to 30 September 2020, as an APA, in grade 4;
– from 1 October 2020 to 31 March 2021, as an APA, in grade 13.
3 On 25 March 2021, the applicant introduced a request under Article 90(1) of the Staff Regulations for a formal decision to be taken on certain information relating to his pension rights (‘the request of 25 March 2021’).
4 In particular, the applicant asked the Parliament to confirm, first, that his pensionable age was 63 (‘the question of the pensionable age’); second, that the amount of his pension would be established on the basis of the average of all of the salaries received from 23 June 2010 to 31 March 2021 (‘the question of whether the average salary should be taken into consideration’); and, third, that the period of service rendered between 27 July 2004 and 1 July 2009 in the form of an employment contract governed by Italian law (‘the period of service rendered between mid-2004 and mid-2009’) should be taken into consideration for the purpose of calculating his pension rights (‘the question of whether the period of service rendered between mid-2004 and mid-2009 should be taken into consideration’).
5 On 19 April 2021, the Parliament adopted the contested decision, by which it rejected the request of 25 March 2021 as manifestly inadmissible. In particular, first, the Parliament considered that, according to settled case-law, the institution was not obliged to adopt a formal and legally binding decision concerning future events. Secondly, by that decision, the Parliament confirmed, first, that the applicant’s pensionable age was 66; second, that the last basic salary to be taken into account for the calculation of his pension was that received from 2 July 2019 to 30 September 2020 in grade 4, given that it was the last grade that he had held for more than 12 months and that there was an interruption of contracts between 2 July and 8 August 2019; and, third, that the periods of service to be taken into account for the calculation of his pension rights were (i) that between 23 June 2010 and 2 July 2019 and (ii) that between 8 August 2019 and 30 September 2020, thus excluding the period of service rendered between mid-2004 and mid-2009.
6 On 4 June 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the contested decision.
7 On 20 October 2021, the Parliament adopted the decision on the complaint. In particular, the Parliament rejected the applicant’s arguments in so far as they concerned the admissibility of his request and the questions of taking into consideration the average salary and the period of service rendered between mid-2004 and mid-2009. Conversely, the applicant’s arguments on the question of the pensionable age were upheld and the Parliament’s ‘Pensions’ Unit was asked to adopt a new decision with respect to the calculation of the applicant’s pensionable age.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision and the decision on the complaint (except for the part of the latter decision in which the arguments on the question of the pensionable age were upheld by the Parliament);
– state that the applicant’s pension amount must be established according to the average of all salaries which he received from 23 June 2010 to 31 March 2021;
– state that, for the calculation of the pension amount, the period of service rendered between mid-2004 and mid-2009 must also be taken into account;
– in the alternative, order the Parliament to pay compensation for the damage caused, in the amount to be determined according to the formula proposed by the applicant, or in any other amount that the Court may find just and fair;
– order the Parliament to pay the costs.
9 The Parliament contends that the Court should:
– dismiss the action as inadmissible and, in any event, as unfounded;
– order the applicant to pay the costs.
Law
Subject matter of the action
10 The Parliament claims that the decision on the complaint replaced the contested decision to the extent that it partially upheld the applicant’s complaint as regards the question of the pensionable age.
11 As stated in paragraph 8 above, the applicant explicitly excludes from his claim for annulment the part of the decision on the complaint relating to the question of the pensionable age.
12 Furthermore, it should be borne in mind that, according to the case-law, the claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Court the act against which the complaint was submitted, when it has, as such, no independent content (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8 and the case-law cited).
13 In the present case, as regards the questions relating to the admissibility of the request of 25 March 2021, on the one hand, and the taking into consideration of the average salary and the period of service rendered between mid-2004 and mid-2009, on the other, it should be noted that the decision on the complaint merely confirms the contested decision. In that regard, the decision on the complaint does not therefore alter the operative part of the contested decision or contain a re-examination of the applicant’s situation in the light of new elements of law or of fact. Accordingly, it cannot be regarded as an independent act adversely affecting the applicant in respect of those questions (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32).
14 Consequently, the action must be regarded as being directed solely against the contested decision as regards the questions relating to the admissibility of the request of 25 March 2021, on the one hand, and the taking into consideration of the average salary and the period of service rendered between mid-2004 and mid-2009, on the other. That part of that decision must be examined in the light of the reasons set out in the decision on the complaint.
The second and third heads of claim
15 It is necessary to reject, on the ground that the Court has no jurisdiction to deal with them, the second and third heads of claim, requesting the Court to declare that the amount of the applicant’s pension is to be established on the basis of the average of all salaries which he received from 23 June 2010 to 31 March 2021 and that the period of service rendered between mid-2004 and mid-2009 should be taken into account in the calculation of his pension rights, since it follows from settled case-law that the Court does not have jurisdiction to issue declaratory judgments in actions brought under Article 263 or 270 TFEU and that, as regards the review of legality based on Article 91 of the Staff Regulations, it also does not have jurisdiction to issue directions to the institutions (see judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 25 and the case-law cited).
The action for annulment
16 In support of his action for annulment, the applicant puts forward seven pleas in law.
17 The first three pleas concern the Parliament’s position that the request of 25 March 2021 is inadmissible and, consequently, that the Parliament’s answers to the questions set out in that request do not constitute decisions adversely affecting the applicant.
18 The other pleas relate to the substantive assessment of the questions put to the Parliament by the applicant and concern, in essence, as regards the fourth plea, the question of the taking into consideration of the period of service rendered between mid-2004 and mid-2009, as regards the fifth plea, the question of the pensionable age, as regards the sixth plea, the question of whether the average salary should be taken into account, and, as regards the seventh plea, in the alternative, the possible partial non-application of the second paragraph of Article 77 of the Staff Regulations in order to remedy alleged breaches of the principles of equal treatment and proportionality.
19 It is appropriate, first of all, to rule on the fifth plea, then to analyse the first, second and third pleas together and, lastly, to examine the fourth, sixth and seventh pleas.
The fifth plea in law, concerning the question of the pensionable age
20 The applicant requests the Court to establish that his pensionable age is 63 years, in accordance with the third indent of Article 22(1) of Annex XIII to the Staff Regulations.
21 In that regard, it should be stated that, in the decision on the complaint, the Parliament upheld the complaint concerning the question of the pensionable age and requested the ‘Pensions’ Unit to adopt a decision in that regard. Consequently, in his first head of claim, the applicant expressly excluded from his claim for annulment the question of the pensionable age.
22 It follows that, by that plea, the applicant is seeking, in essence, a declaratory judgment on the question of the pensionable age. As stated in paragraph 15 above, the Courts of the European Union do not have jurisdiction to give such judgments.
23 Accordingly, the fifth plea in law must be rejected.
The first, second and third pleas in law, relating to admissibility
24 In his first, second and third pleas, the applicant claims that the Parliament was under an obligation to answer the questions raised in the request of 25 March 2021, since those questions related to specific and invariable elements.
25 The arguments put forward by the applicant are, however, irrelevant, since, even if it considered that application to be inadmissible, the Parliament ultimately took a position on the various questions involved therein (see paragraph 5 above).
26 Accordingly, only the arguments put forward by the parties relating to the admissibility of the action before the Court need to be considered. In that regard, the applicant submits that, by the contested decision, the Parliament responded to the request of 25 March 2021 by taking a binding legal decision which is open to challenge before the Court. The Parliament contends, on the contrary, that, in that decision, it merely clarified the interpretation of the applicable rules in this respect, with the result that it is not an act which is open to challenge before the Court.
27 In that regard, it should be borne in mind that, according to settled case-law, only acts or measures which produce binding legal effects capable of directly and immediately affecting an applicant’s interests by bringing about a distinct change in his or her legal position are acts adversely affecting him or her within the meaning of Article 90(2) of the Staff Regulations (see, to that effect, judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 95 and the case-law cited).
28 In order to determine whether an act produces such effects, it is necessary to examine the substance of that act and to assess its effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 96 and the case-law cited).
29 It is in the light of those principles that it is necessary to examine whether the contested decision produces binding legal effects for the applicant.
30 In that regard, it should be recalled that, by the request of 25 March 2021, the applicant asked the Parliament to confirm to him, in essence, that, first, the average salary received between 23 June 2010 and 31 March 2021 and, second, the period of service rendered between mid-2004 and mid-2009 would be taken into consideration in the calculation of his pension rights.
31 It is apparent both from the contested decision and from the decision on the complaint that, first, the Parliament stated that, by virtue of his status as an APA, the applicant could not fulfil the conditions required under the third paragraph of Article 77 of the Staff Regulations, with the result that the average salary earned between 23 June 2010 and 31 March 2021 would not be taken into account. Secondly, it stated that the period of service rendered by the applicant between mid-2004 and mid-2009 could not be taken into consideration since it predated Council Regulation (EC) No 160/2009 of 23 February 2009 amending the Conditions of Employment of Other Servants of the European Union (OJ 2009 L 55, p. 1) and, consequently, was governed by Italian law.
32 Thus, the Parliament did not merely inform the applicant of the content of the applicable provisions, but expressed in clear terms a definitive position producing legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a distinct change in his legal position.
33 The Parliament states, however, that, as regards pension rights, all the elements for calculating the amount of an official’s pension rights cannot, as a general rule, be fixed before the termination of his or her active service, as is confirmed by the judgment of 3 April 1990, Pfloeschner v Commission (T‑135/89, EU:T:1990:26).
34 In that regard, it must, however, be stated that, whilst it is true that, before retirement, which is an uncertain future event, pension rights are virtual rights that take shape day by day, the fact remains that an administrative act from which it follows that a period of service rendered by a staff member is not taken into account or that a method for calculating pension rights recommended for a certain defined period is not applicable for the purpose of calculating his or her pension rights affects the legal position of the person concerned immediately and directly, even if that act is to be implemented only subsequently (see, by analogy, judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 107).
35 If the position were otherwise, the applicant would be able to ascertain his pension rights only at the time of retirement and would, until that time, be placed in a state of uncertainty as regards his financial situation, which does not allow him to make immediate appropriate personal arrangements for his future. It follows that the applicant has a sufficiently clear legitimate, vested and present interest in having an uncertain element, such as the taking into consideration of a certain period of service rendered and the application of a method for calculating pension rights recommended for a defined period, established as soon as possible by a court of law (see, by analogy, judgment of 15 December 2022, Picard v Commission, C‑366/21 P, EU:C:2022:984, paragraph 107).
36 In the light of those circumstances, the contested decision constitutes an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations and the present action must be declared admissible.
The fourth plea in law, concerning the question of whether the period of service rendered between mid-2004 and mid-2009 should be taken into consideration
37 In the fourth plea, the applicant claims that the total number of years in active service for which he paid pension contributions during the period of service rendered between mid-2004 and mid-2009 must, in accordance with certain provisions of the Staff Regulations, be taken into account for the purposes of calculating his pension rights, in the same way as if he had been employed directly by the Parliament. During that period, he was an APA. Consequently, he should, in that capacity, for the limited and specific purposes of the retirement pension, be treated in the same way as an official. The fact that, in respect of those years, the pension contributions were paid to the Italian pension scheme, rather than to the EU pension scheme, is, he submits, irrelevant.
38 The Parliament disputes those arguments.
39 In that regard, it is apparent from recital 6 of Regulation No 160/2009 that APAs are subject to the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) in order to take account of ‘their particular circumstances, the particular tasks they are called on to perform and the specific duties and obligations they have to fulfil vis-à-vis the Members of the European Parliament for whom they are called on to work’.
40 However, that regulation, under Article 4 thereof, entered into force on the first day of the Parliament’s parliamentary term beginning in 2009, namely 14 July 2009.
41 The applicant’s employment contract with an Italian Member for the 2004-2009 parliamentary term was concluded before the entry into force of that regulation and was, prior to that date of entry into force, governed by Italian law, a fact which, moreover, is not disputed by the applicant. It follows that the CEOS and, therefore, the Staff Regulations and the pension scheme provided for therein were not applicable to the applicant, with the result that he cannot rely on provisions of the Staff Regulations to claim that the total number of years in active service in respect of which he paid pension contributions during the period of service rendered between mid-2004 and mid-2009 had to be taken into account for the purposes of calculating his pension rights.
42 Furthermore, on 20 July 2020, the applicant requested, in accordance with Article 11(2) of Annex VIII to the Staff Regulations, the transfer of the pension rights which he had acquired during the period of his service with his former employers in Italy to the pension scheme of the EU institutions, including for the period of service rendered between mid-2004 and mid-2009. Thus, he was credited for 13 years, 2 months and 4 days in the EU pension scheme, which will be taken into account in the calculation of the period of service on the basis of which his pension rights will be determined by the European Union.
43 In this regard, it should be noted that such a transfer is possible by virtue only of those activities carried out by the agent before his or her entry into the service of the European Union (see, by analogy, judgment of 28 September 2022, Zegers v Commission, T‑663/21, not published, EU:T:2022:589, paragraphs 46 to 48).
44 It follows that the applicant asks that the period of service rendered between mid-2004 and mid-2009 be taken into account a second time, something which cannot be accepted.
45 In the light of the foregoing, it must be concluded that the Parliament acted correctly in taking the view that the total number of years in active service in respect of which the applicant paid pension contributions during the period of service rendered between mid-2004 and mid-2009 cannot be taken into consideration for the calculation of his pension rights.
46 That conclusion cannot be called into question by the other arguments put forward by the applicant.
47 In the first place, as regards the argument that the Parliament should have applied to his employment contract covering the period of service rendered between mid-2004 and mid-2009 the law of the country in which or, failing that, from which he habitually carried out his work in performance of the contract, namely, in this case, EU law, it should be noted, as the Parliament submits, that the Parliament was not a party to the applicant’s employment contract covering the period of service rendered between mid-2004 and mid-2009. In addition, the principle relied on by the applicant that the law of the country in which or, failing that, from which he habitually carried out his work as an APA should apply, could, at most, give rise to the application of the law of another Member State, and not of EU law.
48 In the second place, as regards the applicant’s argument that the failure to take into account the period of service rendered between mid-2004 and mid-2009 contravenes Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and the principle of equal treatment, it should be borne in mind that, according to settled case-law, the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 63 and the case-law cited).
49 The applicant cannot , however, invoke any discrimination, since, during the period of service rendered, namely between mid-2004 and mid-2009, he was not employed by the Parliament but under a contract governed by Italian law, with the result that he was not in a situation comparable to that of an official. A sum of money by which the applicant contributes to the EU budget, in the context of the ‘transfer in’ of his pension rights which he had acquired prior to mid-2009 during his service with the Italian administration to the pension scheme of the EU institutions, and a period of time spent in the service of the EU institutions are not comparable values (see, to that effect, judgment of 11 September 2007, Lindorfer v Council, C‑227/04 P, EU:C:2007:490, paragraph 67).
50 It follows from all the foregoing that the fourth plea in law must be rejected.
The sixth plea in law, concerning the question of whether the average salary should be taken into consideration
51 In the sixth plea, the applicant claims that the third paragraph of Article 77 of the Staff Regulations, and not the general rule laid down in the second paragraph of that article, must be applied to him.
52 The applicant submits that strict application of the second paragraph of Article 77 of the Staff Regulations to APAs, which provides for the calculation of the pension on the basis of the final salary, gives rise to unjustified discrimination among the staff of the Parliament. Usually, an official enters the institution with a lower grade and salary and retires with a higher grade and salary, thus entitling him or her to a pension proportionate to the latest and highest salary and not to the entire contributions paid by that official. However, APAs do not have a fixed employment, which means that the final salary, which will be taken into account as the sole basis for calculating pension rights, could be the lowest in their career.
53 The applicant submits that Article 77 of the Staff Regulations should be interpreted in such a way as to grant fair and equitable treatment to non-officials working for the institution, taking into account the general principle of social security law that a pension amount should keep a certain criterion of proportionality to the social contributions paid during the entire working career.
54 Thus, according to the applicant, the third paragraph of Article 77 of the Staff Regulations, and more precisely the pro rata calculation provided for by that provision, must apply to APAs, in so far as, first, by virtue of Articles 95 to 115, 135 and 136 of the CEOS, an APA should be treated as an official, second, an APA, by definition, is assisting another person and, third, MEPs who are assisted by APAs are holding an office provided for by the EU Treaty. In fact, according to the applicant, in accordance with its wording and by virtue of the principle of non-discrimination, the third paragraph of Article 77 of the Staff Regulations must apply to any employee of the institutions whose salary is subject to unpredictable increases and decreases and does not follow a linear increase.
55 The Parliament disputes those arguments.
56 In that regard, it should be borne in mind that it is apparent from both the request of 25 March 2021 (see paragraphs 3 and 4 above) and the applicant’s pleadings before the Court that his action seeks inter alia, in substance, to ensure that the amount of his pension is established on the basis of the average of the salaries received between 23 June 2010 and 31 March 2021. The applicant submits that the total amount of his contributions must be taken into account for the calculation of his retirement benefits.
57 Contrary to the applicant’s submissions, and irrespective of whether the third paragraph of Article 77 of the Staff Regulations is applicable to APAs, the EU pension scheme does not provide for a method of calculation according to which the amount of the pension is calculated by taking into account the average salary earned throughout the career. The general rule that the pension is generally based on the official’s final salary underpins not only the second paragraph of Article 77 but also the third paragraph of that article.
58 More specifically, the third paragraph of Article 77 of the Staff Regulations provides that, in circumstances connected with the performance of certain duties, pension rights are to be calculated on the basis of the basic salary last received in the performance of those duties, and not, as the applicant incorrectly claims, on the basis of the average salary received during that period. It follows that, even if the third paragraph of Article 77 of the Staff Regulations were applicable to the present case, the objective pursued by the applicant, namely to have the average salary earned between 23 June 2010 and 31 March 2021 taken into consideration for the purpose of calculating the amount of his pension, would not be achieved.
59 Furthermore, it must be stated that the third paragraph of Article 77 of the Staff Regulations applies to officials and other servants who, in the course of their professional career within the institutions, have performed different duties governed by different provisions of the Staff Regulations. However, that is not the case with regard to the applicant, who, throughout his professional career in the EU institutions, performed the duties of an APA at the Parliament.
60 Lastly, contrary to the applicant’s submissions, the Staff Regulations do not provide for a link of proportionality between the amount of the pension and the social security contributions paid throughout the official’s professional career. It is apparent from the wording of Article 83(2) of the Staff Regulations that ‘officials shall contribute one third of the cost of [the EU] pension scheme’. Likewise, it follows from Articles 2 and 3 of Annex VIII to the Staff Regulations that pension rights are accumulated not on the basis of contributions actually paid into the pension scheme, but on the basis of years of service. Those provisions, read in conjunction with Article 83(1) of the Staff Regulations, according to which the payment of the benefits provided for under the pension scheme constitutes a charge on the budget, establish that that scheme is organised on the basis of the principle of solidarity and that it is not intended to mean that the pension received by an official constitutes an exact counterpart for the contributions paid by him or her (see judgment of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 134).
61 It follows from all of the foregoing that the sixth plea in law must be rejected as unfounded.
The seventh plea in law, relating to the partial non-application of the second paragraph of Article 77 of the Staff Regulations in order to remedy alleged breaches of the principles of equal treatment and proportionality
62 In the alternative, in the event that his sixth plea is not upheld, the applicant requests the Court to disregard in part the application of the second paragraph of Article 77 of the Staff Regulations on the ground of a breach of the principles of equal treatment and proportionality, as explained in the sixth plea. In particular, the applicant claims that the solution envisaged would be to disregard in particular the words ‘final’ and ‘last’ contained in that article.
63 Thus, he submits, the Court should apply that provision as follows: ‘The maximum retirement pension shall be 70% of the … basic salary carried by the … grade in which the official was classified for at least one year. 1.80% of that … basic salary shall be payable to an official for each year of service reckoned in accordance with Article 3 of Annex VIII’.
64 The Parliament disputes those arguments.
65 In that regard, it should be noted, in the first place, that, at the hearing, the applicant confirmed that he did not intend, by his seventh plea, to raise a plea of illegality under Article 277 TFEU, which provides that any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
66 The applicant maintained at the hearing that the Court should give a ‘creative’ interpretation of the second paragraph of Article 77 of the Staff Regulations by deleting the word ‘final’ contained therein, in order to draw an analogy between officials and his specific situation.
67 In that regard, first, nothing in the provisions of the Staff Regulations allows the second paragraph of Article 77 of the Staff Regulations to be interpreted as meaning that the principle that the amount of the pension is to be established on the basis of the final basic salary is not applicable to APAs.
68 Secondly, even though the career progress of officials and APAs is not governed by the same principles, it is not apparent from those provisions that the legislature intended to take that difference into account when calculating pension rights.
69 It follows that the interpretation proposed by the applicant would run counter to the letter of that article, with the result that it cannot be accepted.
70 In the light of the foregoing, the seventh plea must be rejected and, consequently, the application for annulment must be dismissed in its entirety.
The action for compensation
71 In the alternative, in the event that the sixth and fourth pleas are rejected, the applicant seeks compensation from the Parliament.
72 In this respect, the applicant submits that he worked at several high grades (the last being grade 16) until 1 July 2019, when he was offered the opportunity to work at a much lower grade (grade 4). Before accepting the offer, he consulted the information contained on the institution’s website and sought confirmation from the relevant ‘Pensions’ Unit. He claims that this information created, on his part, legitimate expectations as to its accuracy, which later proved to be misleading. Consequently, in his view, the Parliament’s breach of the principle of the protection of legitimate expectations caused damage in respect of which compensation should be provided.
73 The Parliament disputes those arguments.
74 In this respect, it should be borne in mind that, according to settled case-law in civil service matters, in order for the European Union to incur liability, a number of conditions must be satisfied, namely the alleged conduct of the institution concerned must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage alleged to have been suffered (see, to that effect, judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42, and of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 45 and the case-law cited).
75 Since those three conditions are cumulative, failure to satisfy one of them is sufficient for an action for compensation to be dismissed (judgment of 13 December 2017, CJ v ECDC, T‑703/16 RENV, not published, EU:T:2017:892, paragraph 29).
76 As regards the condition relating to the unlawfulness of the conduct of the institution concerned, it should be borne in mind that an action for compensation under Article 270 TFEU and Article 91(1) of the Staff Regulations may be based not only on the adoption, by an EU institution or body, of an unlawful act, but also, in particular, on conduct not entailing a decision on the part of such an institution or body, where that conduct is unlawful, justifying its classification as a ‘service-related fault’ (see judgment of 4 June 2020, Schokker v EASA, C‑310/19 P, not published, EU:C:2020:435, paragraph 53 and the case-law cited).
77 Furthermore, as regards the alleged failure to comply with the principle of the protection of legitimate expectations, it should be borne in mind that three conditions must be satisfied in order to claim entitlement to such protection. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (judgment of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 151).
78 In the present case, it should be stated that, admittedly, the information which was available on the Parliament’s intranet site and which was confirmed by the person in charge of managing staff files could have been formulated more clearly. Even though the first part of that information, which states that ‘pension entitlements are calculated on the basis of the final basic salary’, which is ‘that payable in the last grade in which the official or other staff member was classified for at least one year, at the last step in which he or she was classified for at least one month’, correctly explains the rule in principle of the EU pension scheme, the second part, which states that ‘for those who at some point in their career received a basic salary higher than that used to calculate the retirement pension, a pro-rata calculation is carried out so that the higher basic salary is taken into account’, could create the impression that a basic salary which has been received by an official or other servant at a certain stage of his or her career and which is higher than the final basic salary will be taken into account in calculating his or her pension rights.
79 In that regard, it should be noted that only certain specific situations, provided for in the third paragraph of Article 77 of the Staff Regulations, lead to an increase in the pension rights of an official or other servant on the ground that the latter received, at a certain stage of his or her career, a basic salary higher than his or her final basic salary. As stated in paragraph 59 above, the applicant does not fall within any of those specific situations.
80 However, it should be noted that the text appearing on the Parliament’s intranet site was more precise than the email from the person in charge of managing staff files, in that it accompanied the abovementioned information with a specific example. Thus, that text further stated that this concerned, for example, a salary received during a secondment to the President’s Cabinet or a political group.
81 Although there is some ambiguity in the information provided, a fact which the Parliament, moreover, acknowledged at the hearing, that information does not contain precise, unconditional and consistent assurances. It involves merely a reference to a certain category of persons, without it being confirmed that the applicant belongs to that category.
82 Furthermore, the Parliament has not specified at all, other than mentioning the term ‘pro rata’ in a general manner, what is the impact of the receipt, in the course of a career, of a basic salary that is higher than the final basic salary. In any event, the Parliament did not in any way state that the average of all of the salaries received between 23 June 2010 and 31 March 2021 would be taken into account for the purpose of calculating the applicant’s pension rights.
83 It follows from the foregoing that there has been no breach of the principle of the protection of legitimate expectations and, therefore, that the first condition for the European Union to incur liability, referred to in paragraphs 74 and 76 above, is not satisfied.
84 Accordingly, the claim for compensation must be rejected as unfounded.
85 In the light of all of the foregoing considerations, the action must be dismissed.
Costs
86 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.
87 Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he or she has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
88 In the present case, the applicant has been unsuccessful in all of his claims. However, it should be noted, as stated in paragraph 78 above, that the information appearing on the Parliament’s intranet site and confirmed by the person in charge of managing staff files could have been formulated more clearly.
89 Consequently, it is fair in the circumstances of the case to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 8 November 2023.
V. Di Bucci | | S. Papasavvas |