30 October 2020 (*)

(Action for annulment – Civil service – Transfer of national pension rights – Complaint brought after the expiry of the three-month period laid down in Article 90(2) of the Staff Regulations – No excusable error – Manifest inadmissibility)

In Case T‑827/19,

Norbert Gáspár,

residing in Mensdorf (Luxembourg), represented by R. Wardyn, lawyer,

applicant,

European Commission,

represented by B. Mongin and M. Brauhoff, acting as Agents,

defendant,

ACTION brought under Article 270 TFEU, seeking annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 23 May 2018 confirming the transfer to the pension scheme of the EU institutions of pension rights acquired by the applicant prior to his entry into the service of the European Union,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, V. Valančius (Rapporteur) and L. Truchot, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, Mr Norbert Gáspár, worked for the EU institutions as a member of the contract staff from 1 October 2011 to 31 August 2015 before being recruited, on 1 September 2015, as an EU official. In respect of his periods of employment preceding his entry into the service of the European Union, the applicant had acquired pension rights in the national pension schemes of Hungary and the Grand Duchy of Luxembourg.

On 11 December 2017, the applicant requested the transfer of his national pension rights acquired in respect of his periods of employment in Hungary to the pension scheme of the EU institutions (‘the PSEUI’). On the same date, the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) requested the Hungarian pension institution (Országos Nyugdíjbiztosítási Főigazgatóság; ‘ONYF’) to calculate the pension rights acquired by the applicant in the national scheme.

On 4 January 2018, ONYF presented a preliminary version of the transfer conditions, which indicated that, at 11 December 2017, the equivalence of the pension rights amounted to 7 542 707 Hungarian forint (HUF) (EUR 24 207.15).

On 7 February 2018, the PMO communicated to the applicant a provisional calculation of his rights in the event of a transfer of his pension rights acquired in a Member State to the PSEUI, indicating that the number of pensionable years to be taken into account in the PSEUI on the basis of the amount estimated by ONYF (see paragraph 3 above) was one year, 10 months and one day.

On 6 March 2018, the applicant agreed to transfer his pension rights acquired in the Hungarian pension scheme to the PSEUI. On 26 March 2018, the PMO acknowledged receipt of the agreement and requested ONYF to carry out the transfer.

On 6 April 2018, ONYF informed the applicant that the final amount of funds to be transferred to the Commission’s account was HUF 8 515 990. The actual transfer of the corresponding amount of EUR 27 330.76 was carried out on 19 April 2018.

By decision of 23 May 2018, the PMO adopted the final calculation of the pensionable years taken into account in the PSEUI as one year, 10 months and one day (‘the contested decision’).

On 11 July 2018, 11 September 2018 and 29 January 2019, the applicant made requests for explanations. On 13 July 2018 and 5 February 2019, the PMO, inter alia, confirmed the contested decision.

On 5 May 2019, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). Although the complaint was lodged more than 90 days after notification of the contested decision to the applicant, the appointing authority, in a spirit of ‘openness and care’ and having regard to the applicant’s requests for explanations referred to in paragraph 8 above, examined the substance of the complaint. That complaint was rejected by decision of 2 September 2019.

Procedure and forms of order sought

By application lodged at the General Court Registry on 2 December 2019, the applicant brought the present action.

The applicant claims that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action in its entirety;

–order the applicant to pay the costs.

By letter from the Registry of 8 April 2020, the Court requested the parties, by way of measures of organisation of procedure, to set out their position on the admissibility of the action and, in particular, to indicate to what extent and on what basis the exchange of correspondence, after the contested decision, might have suspended the period for bringing a complaint and what conclusions should be drawn from that for the purpose of the admissibility of the action in the light of the requirements of the pre-litigation procedure.

In its reply to the measures of organisation of procedure, lodged at the Court Registry on 18 May 2020, the Commission contended that the action was inadmissible on the ground that it did not comply with the time limit prescribed in Article 90(2) of the Staff Regulations. In addition, the Commission stated that the requests made by the applicant, mentioned in paragraph 8 above, had not suspended the mandatory time limit for bringing the complaint.

To justify the fact that the complaint was lodged out of time, the applicant, in his reply lodged at the Court Registry on 25 May 2020, claims an excusable error, the existence of new and substantial facts, the attempt to reach an amicable settlement of the situation at issue and the principles of legal certainty and protection of legitimate expectations.

Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

As a preliminary point, it should be recalled that according to settled case-law the periods for lodging complaints and bringing actions, referred to in Articles 90 and 91 of the Staff Regulations, are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 19 June 2000, Politi v ETF, C‑154/99 P, EU:C:2000:354, paragraph 15 and the case-law cited).

It is also settled case-law that the fact that an institution deals with the substance of an administrative complaint that is out of time and therefore inadmissible can neither have the effect of derogating from the system of mandatory time limits laid down by Articles 90 and 91 of the Staff Regulations nor of depriving the administration of the option of raising, at the stage of court proceedings, a plea of inadmissibility based on the fact that the complaint was out of time, nor a fortiori of relieving the General Court of the obligation to ascertain, of its own motion if need be, that the time limits under the Staff Regulations have been complied with (see, to that effect, judgment of 12 July 1984, Moussis v Commission, 227/83, EU:C:1984:276, paragraph 13).

A complaint under Article 90(2) of the Staff Regulations must be lodged within a period of three months, which starts to run on the date of notification of the act at issue to the person concerned and, in any case, no later than the date on which the person concerned received such notification, if the measure affects a specified person. If the complaint is not lodged within that time limit, the act at issue becomes final.

In the present case, the contested decision was adopted on 23 May 2018 and the complaint against that decision was lodged on 5 May 2019. Although the date of notification of the contested decision is not stated in the file before the Court, it is not disputed that the applicant knew of that decision on 11 July 2018, as is shown by his request of that date for explanations (see paragraph 8 above).

It must therefore be found that the applicant lodged his complaint more than 90 days after becoming acquainted with the contested decision. The complaint was therefore lodged in breach of Article 90(2) of the Staff Regulations.

It is also common ground that on 11 July 2018, 11 September 2018 and 29 January 2019, the applicant made requests for explanations. On 13 July 2018 and 5 February 2019, the PMO replied to his requests and confirmed the contested decision.

It must therefore be ascertained whether the various requests made to the PMO by the applicant after the adoption of the contested decision are capable of suspending the time limit for lodging the complaint.

In response to the measure of organisation of procedure mentioned in paragraph 13 above, the applicant puts forward four grounds to that end, alleging an excusable error, the existence of new and substantial facts, an attempt to reach an amicable settlement of the dispute and the principles of legal certainty and protection of legitimate expectations.

In the first place, the applicant claims an excusable error on the ground of the PMO’s unsatisfactory reply of 13 July 2018 and on the ground that he is not a lawyer specialised in EU pensions law. He argues that the PMO, first, did not explain in its reply of 13 July 2018 why the difference between the amount of the calculation estimated by ONYF at the date of the communication of the request and the amount actually transferred by ONYF, namely the sum of EUR 3 123.61, could not be reimbursed to him. Secondly, he claims that the PMO drafted that reply and its annex in terms which were incomprehensible to an official who is not a lawyer specialised in EU pensions law.

The applicant adds that, in order to obtain a clearer answer, on 11 September 2018 he made a second request for explanations. It was only after the clear reply given to that request, on 5 February 2019, that the applicant was able to lodge the complaint.

In this respect, a preliminary point to note is that the concept of excusable error is restricted to exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person (see judgment of 16 September 2009, Boudova and Others v Commission, T‑271/08 P, EU:T:2009:339, paragraph 71 and the case-law cited). The strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see order of 14 January 2010, SGAE v Commission, C‑112/09, EU:C:2010:16, paragraph 20 and the case-law cited).

In the present case, in its answer of 13 July 2018, the PMO merely confirmed the contested decision. It informed the applicant that it would not reimburse the capital appreciation transferred to the PSEUI. To explain its decision, the PMO forwarded to the applicant, annexed to its reply, a document by way of information in which it was clearly stated that the calculations of pension rights were carried out on the basis of the capital communicated at the date of the transfer request without taking account of capital appreciation.

The PMO’s reply therefore does not contain any incorrect or misleading information which could have caused the applicant to be mistaken as regards the decision not to reimburse the capital appreciation. Therefore, the Commission’s conduct was not, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of the applicant, in particular as to the possibility of bringing a complaint.

It was for the applicant, since the PMO’s answer of 13 July 2018 confirmed the contested decision, to bring a complaint before the competent authority within the prescribed period.

It is true that on 11 September 2018 the applicant made a second request for explanations. However, in that request he merely asked for clarification as to why the amount of the capital appreciation would not be paid to him. Thus, that request demonstrates that the applicant had not been misled by the PMO’s reply of 13 July 2018 so far as the decision not to pay him that amount was concerned.

Accordingly, the applicant has not provided the Court with evidence sufficient to prove that there were exceptional circumstances allowing a finding of an excusable error.

In the second place, the applicant claims the existence of new and substantial facts in the PMO’s reply of 5 February 2019. According to the applicant, the exchanges between the PMO and the Hungarian authorities and the information concerning valorisation multipliers constitute new and substantial facts which suspended the time limits for bringing a complaint.

It must be recalled in this connection that a decision which has not been challenged by its addressee within the required time limit becomes definitive as against that person. However, the existence of new and substantial facts may justify the submission of a request for reconsideration of a previous decision which has become definitive (see judgment of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 71 and the case-law cited).

In the present case, after the applicant had referred the matter to it on 11 September 2018, the PMO requested the Hungarian authorities to communicate to it additional information on the calculation of the appreciation. The information obtained by the Hungarian authorities concerning the national legislation was forwarded to the applicant in the PMO’s response of 5 February 2019, in which the latter reiterated its position as regard the calculation of the pensionable years to be taken into account in the PSEUI and the capital appreciation by the national authorities.

If the applicant thought that the information concerned constituted new and substantial facts, it was for him to request the reconsideration of a decision which had become definitive (see, to that effect, judgment of 12 February 2020, ZF v Commission, T‑605/18, EU:T:2020:51, paragraph 71 and the case-law cited). However, nothing in the file indicates that the applicant made such a request for reconsideration. On the contrary, he did not rely on those facts in his complaint, although he could have done so.

Consequently, in the present case, the arguments alleging that there were new and substantial facts which were capable of justifying the re-opening of the period for bringing a complaint against the contested decision must on any view be rejected.

In the third place, the applicant claims that he cannot be penalised for his attempts to reach an amicable settlement of the dispute at issue prior to lodging the complaint. In addition, the applicant submits that the three-month time limit provided for in Article 90(2) of the Staff Regulations is too short in complex situations which require an exchange of information between several parties.

In this connection, admittedly, first, the purpose of the pre-litigation procedure, provided for under Articles 90 and 91 of the Staff Regulations, is to establish a dialogue between the institution and its official or other member of staff and to thereby give them the opportunity to find an amicable solution to the dispute (judgment of 12 March 2019, TK v Parliament

, T‑446/17, not published, EU:T:2019:151, paragraph 44). Secondly, under Article 124 of the Rules of Procedure, entitled ‘Amicable settlement’, and in particular paragraph 1 thereof, the application of which to actions under Article 270 TFEU is not excluded by paragraph 2 of that article, before the General Court has given its decision, the parties may reach an out-of-court settlement of their dispute and inform the General Court of the abandonment of their claims. Nevertheless, that possibility cannot affect the observance of the time limits in Articles 90 and 91 of the Staff Regulations. Those time limits are matters of public policy and cannot be left to the discretion of the parties. They meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice, as is apparent from the case-law cited in paragraph 18 above.

41Therefore, that argument submitted by the applicant cannot succeed.

42In the fourth place, the applicant relies on the principles of legal certainty and protection of legitimate expectations to support the admissibility of his action. He submits that, despite the fact that his complaint was brought out of time, the Commission, in a spirit of ‘openness and care’, dealt with the substance of his complaint. According to the applicant, by thus replying to his complaint, the Commission adopted a new decision, which caused a new three-month time limit, provided for in Article 91 of the Staff Regulations, to start to run.

43It must be recalled in this connection that, according to the case-law mentioned in paragraph 19 above, the fact that an institution deals with the substance of an administrative complaint that is out of time and therefore inadmissible can neither have the effect of derogating from the system of mandatory time limits laid down in Articles 90 and 91 of the Staff Regulations nor of relieving the General Court from its obligation to ascertain, of its own motion if need be, that the time limits under the Staff Regulations have been complied with. Those time limits meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice, as is apparent from the case-law cited in paragraph 18 above.

44The applicant’s argument thus cannot succeed.

45It follows from all the foregoing that the rules governing the pre-litigation procedure were not complied with, inasmuch as the administrative complaint was not lodged within the time limit provided for in Article 90(2) of the Staff Regulations.

46The action must therefore be dismissed as manifestly inadmissible.

Costs

47Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

48As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

hereby orders:

1.The action is dismissed as manifestly inadmissible.

2.Mr Norbert Gáspár shall pay the costs.

Luxembourg, 30 October 2020.

Registrar

President

—

Language of the case: English.