8 March 2021 (*)

(Action for annulment and for damages – Civil service – Pension – Entitlement to the correction coefficient in the determination of pension rights – Refusal to adopt a position on the applicant’s request – No act adversely affecting an official – Inadmissibility)

In Case T‑251/20,

KG,

applicant,

European Parliament,

defendant,

APPLICATION under Article 270 TFEU for, first, annulment of the Parliament’s letter of 30 August 2019 by which it refused to adopt a decision concerning the application of the correction coefficient in the future determination of the applicant’s pension rights and of the decision rejecting the complaint lodged against that letter and, secondly, compensation for the non-material harm which the applicant allegedly suffered as a result,

THE GENERAL COURT (Seventh Chamber),

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

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, KG, who is currently an official at the European Parliament, was recruited in February 1986 as a member of the temporary staff under Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘CEOS’) with a contract of unlimited duration, having passed a written and oral competition and having successfully completed her probationary period.

On the basis of Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 1962, 45, p. 1385), (‘the Staff Regulations’), amended in 2004 – which offered long-term temporary staff (under Article 2(c) of the CEOS) the possibility of obtaining permanent status, after successful completion of the internal competition – the applicant applied for and passed the internal competition [

confidential

] provided for in Article 29(3) of the Staff Regulations organised by the Parliament. After completing her probationary period [

confidential

], the applicant became an official in 2006.

By e-mail of 16 May 2017, the applicant asked the Pensions and Social Insurances Unit of the Parliament (‘the PSI Unit’) to carry out some calculations on her pension rights.

In its reply of 31 May 2017, which included indicative information on a provisional statement of the applicant’s pension rights, the PSI unit explained in particular that the correction coefficient for her country of origin, namely [

confidential

], ‘[had not been] applicable’ to her pension since 2004. When questioned by the applicant in this respect, the PSI Unit confirmed its position by e-mail of 7 June 2017.

On 5 September 2017, the applicant brought a complaint against the e‑mail of 7 June 2017.

On 4 January 2018, the Secretary General of the Parliament rejected that complaint as inadmissible, stating that ‘although the e-mail dated 7 June 2017 gives …. an idea of the interpretation of the currently applicable rules, it does not produce binding legal effects, because [the applicant] ha[d] not filed a formal request to be retired, nor ha[d] [she] reached the legal retirement age. Therefore, it cannot and does not definitively determine the official position of the institution, and this is the reason that [the] complaint is inadmissible under the procedure of Article 90(2) of the Staff Regulations’. That decision was not challenged by the applicant.

Pursuant to Article 90(1) of the Staff Regulations, on 4 April 2019 the applicant submitted a request for a decision to be taken on whether the correction coefficient would apply to her pension if she were to take up residence in her country of origin, namely [

confidential

], during her retirement.

That request was rejected as inadmissible by letter from the PSI Unit dated 30 August 2019, on the ground that the right to have a correction coefficient applied to a pension is examined only on the date on which pension rights are determined. According to the head of the PSI unit, the application of a correction coefficient is not an autonomous right, but is ancillary to the applicant’s entitlement to a pension and linked to compliance with a number of conditions.

On 29 November 2019, the applicant submitted a complaint under Article 90(2) of the Staff Regulations, using the same arguments as those set out in her request of 4 April 2019.

That complaint, lodged against the letter of 30 August 2019, was also declared inadmissible by the Secretary General of the Parliament by letter of 4 February 2020, in which it was considered that ‘pension rights [could] only be calculated once the official introduce[d] a formal request to retire, or reache[d] the legal retirement age. Before any of these dates, all information related to the calculation of pension rights [was to] be regarded as hypothetical’. Furthermore, that letter confirmed that the letter from the head of the PSI Unit dated 30 August 2019 ‘[could not] and [did] not definitively determine the official position of the institution’, since the applicant had neither filed a formal request for retirement nor reached the legal retirement age.

Procedure and forms of order sought

By application lodged at the Registry of the General Court on 4 May 2020, the applicant brought the present action.

By separate document lodged at the Court Registry on 2 June 2020, the applicant lodged an application for anonymity under Article 66 of the Rules of Procedure of the General Court. On 20 July 2020, the General Court granted her anonymity.

By separate document lodged at the Court Registry on 23 July 2020, the Parliament raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicant submitted her observations on that objection of inadmissibility within the period prescribed.

The applicant claims that the Court should:

–annul the Parliament’s decision of 4 February 2020 rejecting her complaint of 29 November 2019;

–if need be, annul the Parliament’s decision dated 30 August 2019 rejecting the applicant’s initial request of 4 April 2019;

–order the Parliament to pay her compensation in respect of the non-material harm suffered, assessed on an equitable basis at EUR 5 000;

–order the Parliament to pay the costs.

The Parliament contends that the Court should:

–dismiss the action as manifestly inadmissible, pursuant to Article 130(7) of the Rules of Procedure, without going to the substance of the case;

–in the alternative, should the General Court reject the objection of inadmissibility or reserve its decision on admissibility, grant the defendant new time limits for submitting its observations on the substance of the case, in accordance with Article 130(8) of the Rules of Procedure;

–order the applicant to pay the costs.

In her observations on the objection of inadmissibility, the applicant claims that the Court should reject the objection of inadmissibility and declare the action admissible.

Law

Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case.

In the present case, the Parliament having applied for a decision on inadmissibility, the Court considers itself to have sufficient information from the documents in the case file and has decided, on that basis, to rule without taking further steps in the proceedings.

The claim for annulment

In its objection of inadmissibility, the Parliament relies on two pleas of inadmissibility, the first, principally, alleging the absence of a challengeable act and, the second, in the alternative, alleging an irregularity in the prior administrative procedure.

By its first plea of inadmissibility, the Parliament submits that the action is directed against the letter of 4 February 2020 and the letter of 30 August 2019, although these acts do not adversely affect the applicant.

According to the Parliament, the decision not to adopt a definitive position on the applicability of the correction coefficient to a portion of the applicant’s pension rights does not produce binding legal effects directly and immediately affecting her legal situation by significantly altering it.

By asking the appointing authority to take a binding decision on the applicability of the correction coefficient to a portion of her pension rights in the event that she subsequently takes up residence in her country of origin, namely [

confidential

], the Parliament submits that the applicant is in fact asking the Parliament to fix a right on the basis of an uncertain future situation, the events giving rise to which, namely the fact of having filed a formal request for retirement or of having reached retirement age, have not yet occurred. The applicant did not, moreover, invoke any specific rule of the Staff Regulations which would require the adoption of such a decision.

Furthermore, the Parliament submits that the applicant has not justified or explained in her application the nature of her interest in bringing proceedings. According to the Parliament, the exchanges of indicative information which took place between the applicant and the PSI unit concerning the calculation of her pension rights are of a provisional nature and therefore not likely to directly and immediately affect the applicant’s legal situation.

The Parliament submits that the letters of 4 April and 29 November 2019, notwithstanding the reference made to Article 90(1) and (2) of the Staff Regulations and the use of the words ‘request’ and ‘complaint’, are merely requests for indicative information concerning the assignment of a correction coefficient to a retirement pension. Given that, under the Staff Regulations, the correction coefficient can only be applied when the applicant’s pension rights are determined, and that she has not yet filed a request for retirement or reached the legal retirement age, the appointing authority is entitled to refrain from adopting a final decision on the correction coefficient.

In view of the variable nature of entitlements in the context of accruing pension rights and on the basis of a reading of Article 20(3) of Annex XIII to the Staff Regulations in conjunction with Article 40 of Annex VIII thereto, the Parliament considers that it was not required to adopt a decision, even if implicitly required under the Staff Regulations, in response to the request made by the applicant on 4 April 2019.

In the light of the judgment of 12 February 1992, Pfloeschner v Commission (T‑6/91, EU:T:1992:13), the Parliament argues that the applicant, who is still in active employment and who will have to decide on her place of residence at the time of her request for retirement, had asked the administration to give a decision on the correction coefficient applicable to her future retirement pension, which could be determined only when she ceased active employment. That correction coefficient cannot be fixed by the Parliament by a decision taken in advance which immediately and directly affects the applicant’s legal situation.

By its second plea of inadmissibility, raised in the alternative, the Parliament invokes the irregularity of the prior administrative procedure prescribed by the Staff Regulations.

The applicant submits in reply that the two contested decisions, of 30 August 2019 and 4 February 2020, constitute acts adversely affecting her.

First of all, the applicant argues that the nature of her claim is in no way hypothetical. She rules out any doubt as regards the fact that she will submit her request to retire within the next three years.

Secondly, she points out that she is not asking to know the amount of her pension, but only whether the correction coefficient will be applied to a portion of her pension rights if she were to take up residence in her country of origin.

The applicant claims that the fact that she does not know in advance whether the correction coefficient will be applied to her case should she return to her country of origin adversely affects her since she is left in a state of prejudicial uncertainty as to what her financial situation will be. She adds that not taking a decision on this issue puts her unfairly at a disadvantage and makes it difficult to decide on the best steps to take concerning, for example, when she retires and where to.

Furthermore, as regards the Parliament’s reference to the judgment of 12 February 1992, Pfloeschner v Commission (T‑6/91, EU:T:1992:13), the applicant considers that the circumstances of that case differ from those of the present case. She points out that, unlike the situation of the applicant in the case which gave rise to that judgment, in which the correction coefficient continued to apply until his retirement, in the present case the benefit of the correction coefficient would only apply from 1986 until the entry into force of the revised Staff Regulations of 2004. The applicant takes the view, in that regard, that her pension rights for the period from 1986 to 2004 are no longer accruing and that, by failing to respond to her request, the Parliament has prevented her from safeguarding her rights.

Finally, as regards the conduct of the preliminary administrative procedure, the applicant considers that her request of 4 April 2019 and the complaint which followed it cannot be regarded as an attempt to reopen the time limits, but as a new legal step, determined by factual circumstances which did not exist at the time of the first request of 5 September 2017.

It should be recalled at the outset that, under Article 91(1) of the Staff Regulations, the Court of Justice of the European Union has jurisdiction in any dispute between the European Union and any person to whom the Staff Regulations apply regarding the legality of an act affecting such a person adversely.

It is settled case-law that only acts producing binding legal effects which directly and immediately affect the interested person’s legal situation, by significantly altering that situation, can be regarded as adversely affecting him or her (see judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paragraph 28 and the case-law cited).

It is also settled case-law that the characterisation of a measure as an act adversely affecting a person does not depend on its form or title, but is determined by its substance and in particular by whether it produces binding legal effects liable to affect directly and immediately the applicant’s interests by significantly altering his or her legal situation (see, to that effect, order of 15 January 2009, Braun-Neumann v Parliament, T‑306/08 P, EU:T:2009:6, paragraph 32). A measure, in order to be qualified as an act adversely affecting a person, must be issued by the competent authority and contain a definitive position adopted by the administration with regard to the individual situation of the applicant (see judgment of 9 April 2019, Aldridge and Others v Commission, T‑319/17, not published, EU:T:2019:231, paragraph 42 and the case-law cited).

In this connection, it should also be recalled that, under Article 90(2) of the Staff Regulations, an act adversely affecting a person consists either in a decision taken by the appointing authority or in the failure of that authority to adopt a measure prescribed by the Staff Regulations (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 7, and of 14 February 1989, Bossi v Commission, 346/87, EU:C:1989:59, paragraph 8).

With regard, in particular, to a failure to take a decision, that may adversely affect the person concerned where the institution in which he or she is serving does not take either a decision for which express provision is made by a specific rule in the Staff Regulations, or a decision which is implicitly required by the Staff Regulations in order to safeguard the rights of officials (judgment of 12 February 1992, Pfloeschner v Commission, T‑6/91, EU:T:1992:13, paragraph 22, and order of 25 October 1996, Lopes v Court of Justice, T‑26/96, EU:T:1996:157, paragraph 31).

In addition, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited).

Moreover, an applicant’s interest in bringing proceedings must be vested and present (see, to that effect, judgments of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 65, and of 26 February 2015, Planet v Commission, C‑564/13 P, EU:C:2015:124, paragraph 34). It may not concern a future and hypothetical situation (see, to that effect, judgments of 21 January 1987, Stroghili v Court of Auditors, 204/85, EU:C:1987:21, paragraph 11, and of 20 June 2013, Cañas v Commission, C‑269/12 P, EU:C:2013:415, paragraphs 16 and 17).

In the present case, it is apparent from the documents in the file that the applicant asked the Parliament to adopt a final decision as regards the applicability of the correction coefficient to a portion of her pension rights if she were to take up residence in her country of origin, namely [confidential], after leaving the service. It must therefore be ascertained whether, by the letters of 30 August 2019 and 4 February 2020, drawn up, respectively, following her request of 4 April 2019 and her complaint of 29 November 2019, seeking a decision on the applicability of the correction coefficient to her future retirement pension if she were to settle, after retirement, in her country of origin, the Parliament refrained from taking a measure to which the applicant was entitled under the Staff Regulations.

In this respect, it should be recalled that there is no provision in the Staff Regulations which expressly requires the institution to which an official belongs to lay down in advance, that is to say before he or she retires, certain procedures for calculating the amount of his pension rights. On the contrary, Article 40 of Annex VIII to the Staff Regulations provides that ‘the institution in which the official was serving at the time when his active employment ended shall be responsible for calculating the amount of retirement … pension …’, the ‘detailed statement of the calculation [being] communicated to the official … at the same time as the decision awarding the pension’.

That rule in the Staff Regulations, whereby an institution can proceed to calculate an official’s pension rights only when his or her active employment ceases, is necessitated by the requirements relating specifically to a right which is accruing, the basis of calculation of which is generally indeterminate and subject to variation until the person concerned goes into retirement. The factors governing the calculation of the amount of an official’s pension rights, taken as a whole, cannot therefore in general be fixed before his or her active employment ends (judgment of 12 February 1992, Pfloeschner v Commission, T‑6/91, EU:T:1992:13, point 25).

However, such a rule is no longer warranted where, exceptionally, a factor in that calculation can be definitively determined immediately and directly. In those circumstances, the provisions of the Staff Regulation must be interpreted as implicitly requiring the institution concerned to adopt a decision forthwith. Thus, where it is possible to adopt, on the basis of determinate and invariable factors, a decision which is to be implemented subsequently but which may immediately and directly affect an official’s legal situation, the person concerned has a legitimate, present, vested interest in having an uncertain factor in his or her status determined in advance (see, to that effect, judgment of 12 February 1992, Pfloeschner v Commission, T‑6/91, EU:T:1992:13, paragraph 26 and the case-law cited).

Admittedly, as the applicant claims, the correction coefficient no longer applies to the years of pensionable service acquired since the entry into force of the 2004 reform.

Nevertheless, as the Parliament rightly maintains, it follows from the provisions of Article 20(3) of Annex XIII to the Staff Regulations that the application of a correction coefficient to a retirement pension is linked, on an ancillary basis, to the determination of the official’s pension rights and to compliance with certain conditions. Thus, the correction coefficient to be applied depends, first, on the place of residence of the person concerned after he or she has left the service and, secondly, on the rules in force when the calculation is made.

It should be noted in that regard that the choice of place of residence must be made by the person concerned when he or she applies for retirement or automatically goes into retirement. It follows that an official who is still in active employment cannot establish a present, vested interest in obtaining a decision on the correction coefficient to be applied to his or her future retirement pension. By reason of the condition referred to above, which is contingent on the choice of country of residence and which can be determined only upon the cessation of the employment of the person concerned, the correction coefficient cannot be fixed by a decision taken in advance which immediately and directly affects the legal situation of the person concerned (judgments of 12 February 1992, Pfloeschner v Commission, T‑6/91, EU:T:1992:13, paragraph 27, and of 23 April 2008, Pickering v Commission, F‑103/05, EU:F:2008:45, paragraph 101).

In the present case, it is common ground that the applicant was still in active employment when she applied for the decision in question to be adopted, so that her place of residence at the time of the end of her active employment was not definitively determined. Thus, the Parliament did not have at its disposal determinate and invariable factors in order to assess the applicant’s definitive administrative situation as regards the applicability of the correction coefficient to her pension rights. The fact that the applicant argues that her choice of place of residence could depend on the application of the correction coefficient to a portion of her pension rights confirms that uncertainty relating to the choice of place of residence, which led the European Union judicature, in its judgment of 12 February 1992, Pfloeschner v Commission (T‑6/91, EU:T:1992:13, paragraph 27), to deny the applicant a present and actual interest. In that regard, it should also be pointed out that, in accordance with Article 3(5) of Annex XI to the Staff Regulations, the correction coefficient is in any event not applicable if, after leaving the service, the applicant continues to reside in her present place of employment, namely [confidential].

It follows that, in the present case, the applicability of the correction coefficient does not constitute an element in the calculation of the applicant’s pension rights which has already been definitively determined. In those circumstances, the provisions of the Staff Regulations did not, even implicitly, require the Parliament to adopt a final decision on the applicability of that coefficient to a portion of the applicant’s pension rights if she were to take up residence in her country of origin after leaving the service.

This finding cannot be called into question by the applicant’s argument that the absence of a final decision on the applicability of the correction coefficient to her pension rights is contrary to the duty of care and deprives the provisions of Article 90(1) and (2) of their effectiveness, since the final decision on the applicability of that correction coefficient to the applicant’s situation can only be taken once the formal request for retirement has been made, or once the applicant has reached the legal retirement age and subject to verification of the conditions for entitlement to it.

Thus, in the absence of a specific provision in the Staff Regulations explicitly or implicitly requiring it to take a decision and, given the purely hypothetical nature of the applicant’s request at this stage, the Parliament could legally refrain from taking a final decision on the applicability of the correction coefficient to a portion of the applicant’s future pension rights if she were to take up residence in her country of origin, since none of the events giving rise to this, namely the formal request of the person concerned for retirement or the attainment of the legal retirement age, subject to verification of the conditions for entitlement to it, had occurred. It follows from the above that a final decision by Parliament on the applicability of the correction coefficient to a portion of the applicant’s pension rights should be taken at a later date, and the applicant would, if necessary, be entitled to challenge such a decision before the General Court.

Accordingly, the objection of inadmissibility raised by the Parliament must be upheld and the application for annulment dismissed as inadmissible, without there being any need to consider the other arguments raised in that regard by the Parliament.

The action for damages

The applicant considers that she suffered non-material harm due to the feeling of injustice, discouragement and anxiety that the contested decision caused, since she was not correctly informed and was left in an uncertain situation regarding the applicability of the correction coefficient to a portion of her future pension rights.

In this connection, it should be recalled that, according to settled case-law, claims seeking compensation in respect of material or non-material harm must be dismissed where they are closely linked with claims for annulment which have themselves been dismissed as either inadmissible or unfounded (judgment of 15 May 1997, N v Commission, T‑273/94, EU:T:1997:71, paragraph 159, and order of 16 November 2018, O.T. v Commission, T‑552/16, not published, EU:T:2018:807, paragraph 89).

In the present case, it is apparent from the application that the claim for compensation is closely linked to the claim for annulment. The non-material harm in respect of which the applicant seeks compensation stems from the unlawfulness which allegedly vitiates the contested decision.

Consequently, since the action for annulment has been declared inadmissible, the claim for damages must also be dismissed.

In the light of all of the foregoing considerations, the action must be dismissed in its entirety.

Costs

Under 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. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.

On those grounds,

hereby orders:

1.The action is dismissed.

2.KG shall pay the costs.

Luxembourg, 8 March 2021.

Registrar

President

—

Language of the case: English.