JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
2 March 2016
Case F‑3/15
Jürgen Frieberger
and
Benjamin Vallin
v
European Commission
(Civil service — Officials — Pensions — Reform of the Staff Regulations — Regulation No 1023/2013 — Article 22 of Annex XIII to the Staff Regulations — Raising of the retirement age — Repayment of contributions to the EU pension scheme — Article 26 of Annex XIII to the Staff Regulations — Recalculation of the bonus relating to pension rights)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Frieberger and Mr Vallin seek annulment of the European Commission’s decisions of 13 and 26 March 2014 rejecting their respective requests of 9 and 17 December 2013 seeking, first, repayment of a portion of the contributions to the European Union pension scheme which were deducted from their pay, and, second, recalculation of the bonus relating to their pension rights transferred to the European Union pension scheme. In so far as is necessary, they also seek annulment of the decisions of 26 September 2014 rejecting their complaints of 11 and 23 June 2014 against the above-mentioned decisions of 13 and 26 March 2014.
Held: The European Commission’s decision of 26 March 2014 rejecting Mr Frieberger’s request of 17 December 2013 is annulled in so far as he sought by that request to obtain a recalculation of the bonus relating to his pension rights transferred to the European Union pension scheme. There is no need to adjudicate on the action in so far as it was brought by Mr Vallin against the European Commission’s decision of 13 March 2014 inasmuch as that decision allegedly rejected a request seeking a recalculation of the bonus relating to pension rights transferred to the European Union pension scheme. The remainder of the action is dismissed. The parties are to bear their own costs.
Summary
1. Actions for annulment — Jurisdiction of the Union judicature — Application for annulment of an individual act adversely affecting an official — Union judicature’s lack of jurisdiction to declare a provision of general application unlawful in the operative part of its judgments
(Art. 263 TFEU)
2. Actions brought by officials — Prior administrative complaint — Decision to reject — No obligation for the administration to substitute grounds for the original decision
(Staff Regulations, Art. 90)
3. Officials — Pensions — Financing of the pension scheme — Procedure for maintaining the actuarial balance of the Union pension scheme — Determination of officials’ contributions — Actuarial calculation involving changes in the population, salary progression and interest rates evaluated in accordance with Article 10 of Annex XII to the Staff Regulations — Legality
(Staff Regulations, Arts 83 and 83a, and Annexes XI, XII, Art. 10, and XIII, Art. 22)
4. Acts of the institutions — Preamble — Binding legal force — None
5. Fundamental rights — Charter of Fundamental Rights of the European Union — Workers’ right to information and consultation within the undertaking — Possibility of relying on that right independently in proceedings on a plea of illegality of a provision of Regulation No 1023/2013 — Not possible
(Charter of Fundamental Rights of the European Union, Art. 27)
6. Officials — Pensions — Pension rights acquired before entry into the service of the EU — Transfer to the EU scheme — Additional years of pensionable service — Recalculation of bonus — Second recalculation after 2014 reform of the Staff Regulations following first recalculation after 2004 reform of the Staff Regulations — Lawfulness
(Staff Regulations, Annex XIII, Arts 22 and 26(5); European Parliament and Council Regulation No 1023/2013)
1. Although, in an application for annulment of an individual measure having adverse effect, the Union judicature does in fact have jurisdiction to declare, incidentally, the illegality of a provision of general application upon which the contested measure is based, it does not, however, have jurisdiction to make such declarations in the operative part of its judgments.
(see para. 31)
See:
Judgment of 21 October 2009 in Ramaekers-Jørgensen v Commission, F‑74/08, EU:F:2009:142, para. 37
2. Where, after considering a complaint, the competent appointing authority considers that the grounds for the original decision which is the subject of that complaint are both well founded and sufficient to respond to the allegations made in the complaint, there is no reason for it to depart from that statement of reasons by substituting another. In those circumstances it may, therefore, reject the complaint, reproducing, in the rejection decision, the same grounds as those given in the original decision, without being criticised for infringing the obligation to provide a statement of reasons or the principle of sound administration.
In a specific situation where a number of individuals have drafted complaints in the same terms, the appointing authority cannot be criticised for providing a standardised response to them. On the contrary, that approach is consistent with the principle of sound administration and guarantees equal treatment between complainants.
(see paras 39, 41)
See:
Judgment of 11 December 2014 in Faita v EESC, T‑619/13 P, EU:T:2014:1057, para. 32
3. The rule laid down in Article 83(2) of the Staff Regulations that officials must contribute one third of the cost of financing the pension scheme is to be read in the light of Article 83a(1), (3) and (4) of the Staff Regulations, which require that the scheme be kept in balance, and that that balance be checked on the basis of a five-yearly actuarial assessment updated every year, in accordance with Annex XII to the Staff Regulations, laying down rules for implementing Article 83a of the Staff Regulations. That being so, the pension scheme is in balance, in the actuarial sense laid down in Annex XII to the Staff Regulations, if the level of the contributions paid each year by officials in active service is sufficient to finance one third of the future amount of the rights which those officials acquired during the same year. The actuarial approach used by the legislature is thus based on the long-term financing of the pension scheme. To that end, the legislature took into account a series of actuarial hypotheses.
It follows that the contribution by officials of one third of the sum needed to finance the pension scheme must be understood from the actuarial point of view described above and over the long term, and therefore that distortions of calculation cannot be ruled out.
It is also clear from Article 83a(3) of the Staff Regulations that the actuarial balance of the pension scheme is ensured by two factors: the pensionable age and the rate of officials’ contribution to the scheme. While contributions to the pension scheme help to ensure that it is balanced by financing it directly, a similar effect is expected from the increase in the retirement age under the Staff Regulations, since the result of this, in principle, is that pensions under the scheme will be deferred to a later point in time.
However, this is not sufficient to conclude that an increase in the retirement age under the Staff Regulations should necessarily, by a direct offsetting mechanism, lead to a reduction in the past contribution rate of officials.
Pursuant to Article 1 of Annex XII to the Staff Regulations, the contribution of officials to the pension scheme is determined, more precisely, by reference to the five-yearly actuarial assessment and its annual update, which are both provided for in Article 83a(3) and (4) of the Staff Regulations. That five-yearly actuarial assessment and its annual update are based on a number of parameters laid down in Annex XII to the Staff Regulations.
The first parameter taken into account when calculating the contribution of officials is ‘changes in the population’, as referred to in Article 1(2) of Annex XII to the Staff Regulations. Those changes are themselves determined by observation of the population of participants in the pension scheme, as is clear from Article 9 of the same Annex. According to that article, changes in the population are deduced, more particularly, from the structure of the population and the average age of retirement. The structure of the population must itself be assessed in the light of the mortality table, life expectancy, the invalidity rate and the gender distribution of the population. As for the average age of retirement, that is different from the retirement age under the Staff Regulations and is taken into account because it has a more decisive influence than the latter on the actual pension liability cost.
A second parameter taken into account when determining the contribution of officials is the change in the basic salary of each official up to the ‘assumed retirement age’ (Articles 4 and 6 of Annex XII to the Staff Regulations). That means, therefore, that the future value of the basic salary of an active official is estimated taking account of his projected basic salary at retirement (Article 6(1), first subparagraph, of Annex XII to the Staff Regulations). In that regard, it is important to note that, although the retirement age under the Staff Regulations must be taken into consideration, factors such as the possibility of remaining in service after reaching that age, or of leaving the service before reaching it, are also taken into account, as Article 6(4) of Annex XII to the Staff Regulations indirectly confirms. It follows, in short, that the ‘assumed retirement age’ taken into consideration here is an aggregate value.
A third parameter taken into account when determining the contribution of officials is the interest rates evaluated in accordance with Article 10 of Annex XII to the Staff Regulations, and a fourth factor, according to Article 11 of the same Annex, is the annual change in the salary scales of officials, corresponding to the thirty-year average of specific indicators referred to in Annex XI to the Staff Regulations.
It is thus apparent that the retirement age under the Staff Regulations, which Article 22 of Annex XIII to the Staff Regulations in the version resulting from Regulation No 1023/2013 fixes on the basis of the age of each official on 1 May 2014, is a factor which interacts with estimates of the future value of a number of parameters (interest rate, mortality, salary progression, etc.) in the evaluation of the actuarial balance of the Union pension scheme and thus in the determination of the contribution which each official must pay to the scheme in order to provide a third of that balance.
The rate of contribution of officials to the Union pension scheme may thus change regardless of the retirement age under the Staff Regulations.
Lastly, the Union pension scheme is organised on the basis of the principle of solidarity and is not designed so that the pension received by an official is the exact equivalent of his contributions to the scheme. It follows that the contributions of each official do not create, for each of them, an individual entitlement, acquired now, to a specific return in the form of a pension and to the reimbursement of any surplus.
(see paras 45-54, 56, 73)
See:
Judgment of 29 November 2006 in Campoli v Commission, T‑135/05, EU:T:2006:366, para. 134
Judgment of 11 July 2007 in Wils v Parliament, F‑105/05, EU:F:2007:128, paras 85 and 86
4. The function of the preamble to an act of general scope is to set out its reasoning, indicating, as a rule, first, the overall situation which led to its adoption and, second, the general objectives which it proposes to achieve. Consequently, the preamble to such an act has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or, a fortiori, as a basis for claiming them to be illegal.
(see para. 69)
See:
Judgment of 19 November 1998 in Nilsson and Others, C‑162/97, EU:C:1998:554, para. 54
5. Article 27 of the Charter of Fundamental Rights of the European Union, entitled ‘Workers’ right to information and consultation within the undertaking’, provides that workers must, at various levels, be guaranteed information and consultation in the cases and under the conditions provided for by EU law and national laws and practices. It is therefore clear from its wording that, for this article to be fully effective, it must be given more specific expression in European Union or national law.
In that regard, individuals may not base a plea of illegality of Article 1(73)(g) of Regulation No 1023/2013 solely on Article 27 of the Charter, without referring to another provision of EU law supplementing that article.
(see paras 87, 88)
See:
Judgment of 15 January 2014 in Association de médiation sociale, C‑176/12, EU:C:2014:2, paras 44 and 45
6. There is nothing in the wording of Article 26(5) of Annex XIII to the Staff Regulations to prevent an official, after a first recalculation of the bonus to his pension rights following the 2004 reform, from obtaining a second recalculation taking account of the changes made to Article 22 of Annex XIII to the Staff Regulations by Regulation No 1023/2013, which again increased the retirement age under the Staff Regulations.
(see para. 97)