Maxime Picard v European Commission (C-366/21 P)

Contents

Judgment of the Court (Second Chamber)15 December 2022^note(Appeal — Civil service — Members of the contract staff — Pension — Staff Regulations of Officials of the European Union — 2014 reform — Regulation (EU, Euratom) No 1023/2013 — Annex XIII to those regulations — Second paragraph of Article 21 and second subparagraph of Article 22(1) — Transitional measures relating to the annual rate of accrual of pension rights and retirement age — Conditions of Employment of Other Servants of the European Union — Annex — Article 1(1) — Application of those transitional measures by analogy to other staff employed on 31 December 2013 — Signature of new contract as a member of the contract staff — Act adversely affecting an official — Effective judicial protection)In Case C‑366/21 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2021,Maxime Picard, residing in Hettange-Grande (France), represented by S. Orlandi, avocat,the other party to the proceedings being:European Commission, represented by G. Gattinara and B. Mongin, acting as Agents,THE COURT (Second Chamber),composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún (Rapporteur), F. Biltgen, N. Wahl and J. Passer, Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,gives the following

Judgment

1By his appeal, Mr Maxime Picard seeks to have set aside the judgment of the General Court of the European Union of 24 March 2021, Picard v Commission (T‑769/16, EU:T:2021:153), as rectified by order of 16 April 2021, Picard v Commission (T‑769/16, EU:T:2021:200) (‘the judgment under appeal’), by which the General Court dismissed his action for annulment, first, of the reply of the manager of the Pensions Sector of the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 4 January 2016 (‘the reply of 4 January 2016’) and, second, if necessary, of the decision of 25 July 2016 of the Director of Directorate E of the Commission’s Directorate-General for Human Resources and Security (‘DG Human Resources’) dismissing the appellant’s complaint of 4 April 2016 lodged against the reply of 4 January 2016 (‘the rejection decision of 25 July 2016’).

Legal framework

The Staff Regulations

2The Staff Regulations of Officials of the European Union, as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15) (‘the Staff Regulations’), includes Title V, entitled ‘Emoluments and social security for officials’, Chapter 3 of which, entitled ‘Pensions and invalidity allowance’, contains Articles 77 to 84 of the Staff Regulations.

3The first, second and fifth paragraphs of Article 77 of the Staff Regulations provide:‘An official who has completed at least [10 years’] service shall be entitled to a retirement pension. ……The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year. 1.80% of that final basic salary shall be payable to an official for each year of service reckoned in accordance with Article 3 of Annex VIII.…The pensionable age shall be 66 years.’

4Under Article 83(1) and (2) of the Staff Regulations:1. Benefits paid under this pension scheme shall be charged to the budget of the Union. Member States shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.2. Officials shall contribute one third of the cost of this pension scheme. … It shall be deducted monthly from the salary of officials. …’

5Title VII of the Staff Regulations is entitled ‘Appeals’. It comprises Articles 90 to 91a of the Staff Regulations.

6Article 90(2) of the Staff Regulations states:‘Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act affecting him adversely …’

7Article 91(1) of the Staff Regulations states:‘The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). …’

8The second paragraph of Article 21 of Annex XIII to the Staff Regulations, entitled ‘Transitional measures applicable to officials of the Union’, reads as follows:‘Officials who entered the service in the period from 1 May 2004 until 31 December 2013 shall be entitled to 1.9% of their salary referred to [in the second sentence of the second paragraph of Article 77 of the Staff Regulations] for every year of pensionable service calculated in accordance with Article 3 of Annex VIII.’

9The second subparagraph of Article 22(1) of Annex XIII states:‘Officials aged 35 years or more on 1 May 2014 and who entered the service before 1 January 2014 shall become entitled to a retirement pension at the age shown in the table below …’

10As regards officials aged 35 on 1 May 2014, the table referred to in the preceding paragraph sets the retirement age at 64 years and 8 months.

The CEOS

11The first paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union, as amended by Regulation No 1023/2013 (‘the CEOS’), provides:‘Temporary staff … may be engaged for a fixed or indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.’

12Article 39(1) of the CEOS provides:‘On leaving the service, [temporary staff] shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of a severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. …’

13Article 86(2) of the CEOS provides:‘Where a member of the contract staff referred to in Article 3a moves to a new post within a function group, he shall not be classified in a lower grade or step than in his former post.Where a member of such contract staff moves to a higher function group, he shall be classified at a grade and step such that his remuneration is at least equal to that to which he was entitled under the preceding contract.…’

14Article 109(1) of the CEOS provides:‘On leaving the service, contract staff shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of a severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. …’

15Article 117 of the CEOS provides:‘The provisions of Title VII of the Staff Regulations on appeals shall apply by analogy.’

16The second sentence of Article 1(1) of the annex to the CEOS, entitled ‘Transitional provisions applicable to the staff covered by the [CEOS]’, provides, inter alia, that Article 21 and Article 22, with the exception of paragraph 4 thereof, of Annex XIII to the Staff Regulations ‘shall apply by analogy to other staff employed on 31 December 2013’.

Regulation No 1023/2013

17Recital 29 of Regulation No 1023/2013 states:‘Transitional arrangements should be laid down to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights and legitimate expectations of the staff employed before the entry into force of these amendments to the Staff Regulations.’

18Article 3 of Regulation No 1023/2013 provides:1. This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.2. It shall apply as from 1 January 2014 except for Article 1, point 44, and Article 1, point 73(d) which shall apply as from the date of entry into force of this Regulation.’

Background to the dispute

19The background to the dispute is set out in paragraphs 1 to 25 of the judgment under appeal and can be summarised as follows.

20The appellant is a member of the Commission’s contract staff.

21On 10 June 2008, he was recruited by the Commission, with effect from 1 July 2008, as a contract staff member in Unit 5 of the PMO (‘the 2008 contract’). By that recruitment, the appellant was classified in the first function group. The 2008 contract was renewed three times for a fixed term and, by decision of 3 May 2011, for an indefinite period.

22On 16 May 2014, DG Human Resources offered the appellant a new contract as a contract staff member, which the appellant signed on the same day (‘the contract of 16 May 2014’). That contract, of indefinite duration, took effect on 1 June 2014, with the appellant being classified in the second function group.

23In the meantime, the Staff Regulations and the CEOS were amended by Regulation No 1023/2013, applicable, as regards the provisions relevant to the present case, as from 1 January 2014 (‘the 2014 reform’).

24Following the 2014 reform, the second paragraph of Article 77 of the Staff Regulations, also applicable to contract staff by reference to Article 109(1) of the CEOS, defines a new annual rate of acquisition of pension rights of 1.8% less favourable than the previous rate of 1.9%. In addition, the fifth paragraph of Article 77 of the Staff Regulations sets the retirement age at 66 years, compared with 63 years previously.

25A transitional regime was, however, provided for in Annex XIII to the Staff Regulations. Thus, an official who entered the service between 1 May 2004 and 31 December 2013 continues to benefit from the annual accrual rate of pension rights of 1.9%. In addition, a civil servant aged 35 on 1 May 2014 who entered the service before 1 January 2014 is entitled to a retirement pension at the age of 64 years and 8 months. Lastly, Article 1(1) of the annex to the CEOS provides that those transitional provisions are to apply by analogy to other staff employed on 31 December 2013.

26By email of 4 January 2016, the appellant, having doubts as to the possible implications of the 2014 reform for his situation following the signing of the contract of 16 May 2014, requested explanations from the manager of the Pensions Sector of the PMO.

27In the response of 4 January 2016, that manager informed the appellant that his pension rights had been modified as a result of the change of contract and that, therefore, as far as the appellant was concerned, the normal retirement age and the annual rate of acquisition of pension rights had changed to 66 years and 1.8% respectively as from 1 June 2014.

28On 4 April 2016, the appellant made a formal complaint under Article 90(2) of the Staff Regulations against the reply of 4 January 2016.

29By the rejection decision of 25 July 2016, the Director of Directorate E of DG Human Resources, in his capacity as the authority empowered to conclude contracts of employment (AECE), rejected that complaint, principally, as inadmissible in the absence of an act adversely affecting the appellant or, in the alternative, as unfounded.

The procedure before the General Court and the judgment under appeal

30By application lodged at the Registry of the General Court on 7 November 2016, the appellant brought an action for annulment of the reply of 4 January 2016 and, if necessary, of the rejection decision of 25 July 2016.

31By separate document lodged at the Registry of the General Court on 6 February 2017, the Commission raised an objection of inadmissibility on the ground that there was no act adversely affecting the appellant within the meaning of Article 91 of the Staff Regulations.

32By decision of 12 October 2017, the President of the Third Chamber of the General Court decided to stay the proceedings until the decision closing the proceedings in Case T‑128/17, Torné v Commission, had acquired the force of res judicata.

33Following the delivery of the judgment of 14 December 2018, Torné v Commission (T‑128/17, EU:T:2018:969), and since no appeal was lodged against that judgment, the proceedings in Case T‑769/16, Picard v Commission, were resumed and the parties submitted their observations on the consequences of that judgment for that case.

34By order of 13 May 2019, the General Court reserved its decision on the Commission’s objection of inadmissibility for the final judgment and reserved the costs.

35By the judgment under appeal, the General Court decided to examine at the outset the plea raised by the appellant, without first ruling on that plea of inadmissibility, on the ground that the action was, in any event, unfounded.

36In that regard, the General Court held that the Commission was right to take the view that the contract of 16 May 2014 meant that the appellant could not benefit from the application of the transitional provisions, laid down in Articles 21 and 22 of Annex XIII to the Staff Regulations, concerning the annual rate of acquisition of pension rights and the retirement age.

37First, in paragraphs 65 to 83 of the judgment under appeal, the General Court interpreted Article 1(1) of the annex to the CEOS, in so far as it provides that those transitional provisions ‘shall apply by analogy to other staff employed on 31 December 2013’.

38The General Court held, inter alia, that it follows from the wording of that provision that Articles 21 and 22 of that annex apply to staff covered by the CEOS in so far as it is possible to draw an analogy between them and officials, taking into account the specific characteristics of each category of staff. After examining those characteristics, the General Court observed that whereas an official enters and remains in the service of the administration of the European Union by virtue of an act of appointment which remains unchanged for his or her entire career, a member of the contract staff enters and remains employed under a contract for as long as that contract has effect.

39It is in the light of those considerations that the General Court interpreted the requirement of being ‘employed on 31 December 2013’, within the meaning of Article 1(1) of the annex to the CEOS.

40In paragraph 81 of the judgment under appeal, the General Court held that the expression ‘by analogy’ in that provision assumes that the contract staff are in a position similar to that of officials. According to the General Court, that position can be established only if the contract staff member has not signed a new contract which involves the beginning of a new employment relationship with the administration of the European Union. In that regard, referring to paragraph 40 of its judgment of 16 September 2015, EMA v Drakeford (T‑231/14 P, EU:T:2015:639), the Court recalled that it had held previously that an employment relationship between a staff member and the administration of the European Union may remain unchanged, even after the signing of a new contract formally distinct from the initial contract, provided that that new contract does not substantially alter the duties of the staff member, in particular of the function group, such as to call into question the functional continuity of his or her employment relationship with the administration of the European Union.

41The General Court concluded therefrom that Articles 21 and 22 of Annex XIII to the Staff Regulations apply only to other staff employed on 31 December 2013 and who remain so after that date under a contract, until their position is examined for the purpose of calculating pension rights.

42Next, in paragraphs 85 to 93 of the judgment under appeal, the General Court analysed the appellant’s situation in the light of that interpretation of Article 1(1) of the annex to the CEOS. In particular, after examining the contracts concluded between the appellant and the Commission and the characteristics of the posts on which he was engaged, and finding that the change of function group had called into question the functional continuity of the appellant’s employment relationship with the administration of the European Union, the General Court held that the contract of 16 May 2014 had resulted in the termination of all the effects of the 2008 contract on the basis of which the appellant was ‘employed on 31 December 2013’ within the meaning of that provision, and, therefore, a termination of that employment relationship. Thus, the General Court found that the contract of 16 May 2014 had given rise to a new entry into service for the purposes of the application of that provision, which did not allow the appellant to benefit from the application of the transitional provisions laid down in Annex XIII to the Staff Regulations concerning the annual rate of accrual of pension rights and retirement age.

43Lastly, the General Court stated in particular that that conclusion cannot be called into question by the appellant’s argument that a new contract does not preclude the application of those transitional provisions, as long as that does not lead to discontinuity in membership of and contributions to the EU pension scheme. According to the General Court, the application of those provisions to staff cannot depend on the allegedly uninterrupted affiliation to the EU pension scheme, but rather turns on the functional continuity of that employment relationship.

44The General Court accordingly dismissed the action.

Forms of order sought by the parties before the Court of Justice

45The appellant claims that the Court should:– set aside the judgment under appeal;– annul the reply of 4 January 2016 and, if necessary, the rejection decision of 25 July 2016; and– order the Commission to pay the costs at both instances.

46The Commission contends that the Court should:– dismiss the appeal; and– order the appellant to pay the costs.

The appeal

Admissibility

Arguments of the parties

47The Commission calls into question the admissibility of the appeal, on the ground that the appellant does not identify precisely the points of the judgment under appeal which he contests and thus fails to comply with the requirement laid down in Article 169(2) of the Rules of Procedure of the Court of Justice.

48In the Commission’s submission, the appellant does not dispute as erroneous in law the key paragraphs of the judgment under appeal in which the General Court interpreted Article 1(1) of the annex to the CEOS.

49In addition, the Commission refers to the case-law of the Court of Justice according to which an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 4 October 2018, Staelen v Ombudsman, C‑45/18 P, not published, EU:C:2018:814, paragraph 15).

50According to the Commission, the only reference in the appeal to an element of the judgment under appeal is the one made to paragraph 90 of that judgment, which does not satisfy the requirements of clarity under Article 169(2) of the Rules of Procedure.

51The appellant disputes that line of argument.

Findings of the Court

52It follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested paragraphs of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (see, to that effect, judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).

53A ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30 and the case-law cited).

54In the present case, it follows from paragraph 24 et seq. of the appeal that the appellant criticises the General Court for having erred in law in its interpretation of Article 1(1) of the annex to the CEOS by holding, in paragraph 81 of the judgment under appeal, that the transitional provisions laid down in Articles 21 and 22 of Annex XIII to the Staff Regulations can continue to apply to other staff only in so far as they do not conclude a new contract or that, formally concluding a new contract, they continue to perform substantially the same duties. The appellant also sets out the reasons why he considers that that interpretation is vitiated by an error of law.

55Thus, contrary to what the Commission maintains, the appeal sets out precisely the paragraph of the judgment under appeal which is criticised and provides a sufficient explanation for why that paragraph is vitiated by an error of law, with the result that the appeal enables the Court of Justice to exercise its power of judicial review.

56In those circumstances, the present appeal must be declared admissible.

The single ground of appeal

Arguments of the parties

57In support of his appeal, the appellant puts forward a single ground of appeal alleging that the General Court erred in law when it held, in paragraph 81 of the judgment under appeal, that the transitional measures provided for in Article 1(1) of the annex to the CEOS can continue to apply to other staff only in so far as they do not conclude a new contract or that, formally concluding a new contract, they continue to perform substantially the same duties.

58In view of the sphere of the pension scheme and the objective pursued by the EU legislature, it is not the functional continuity which makes it possible to define the scope of the transitional measures provided for in Article 1(1) of the annex to the CEOS, but rather the continuity of membership and contributions to that scheme. Thus, where there is a succession of continuous contracts as a member of the contract staff, the staff member retains his or her affiliation to that scheme and continues to accumulate pension rights.

59The Commission disputes that single ground of appeal. It submits, first of all, with regard to paragraphs 81 and 82 of the judgment under appeal, that the appellant merely challenges the General Court’s reference to its case-law on the functional continuity of an employment relationship despite the signature of a new contract, a reference which refers only to the exception, set out in the last sentence of paragraph 81, to the rule that an analogy with the situation of officials, in accordance with Article 1(1) of the annex to the CEOS, may yet be drawn only where the staff member remains employed under a contract and does not sign a new contract. In fact, that exception would have enabled the appellant to benefit from the application of Articles 21 and 22 of Annex XIII to the Staff Regulations had it been possible to establish functional continuity between his different contracts, but it was precisely that exception that was not applied to him.

60Next, the General Court interpreted Article 1(1) of the annex to the CEOS in accordance with the wording of that provision, which refers to the search for an ‘analogy’ between officials and other staff. In that context, in view of the difference in the nature of his employment relationship as compared with that of an official, it is necessary, in order to determine whether another member of staff is still employed, to take into consideration his contract, and not the continuity of his membership in the pension scheme.

61Furthermore, the judgment of 14 December 2018, Torné v Commission (T‑128/17, EU:T:2018:969), is not relevant to the present case, since Article 1(1) of the annex to the CEOS was not at issue in that judgment, which concerns the conditions of applicability of Articles 21 and 22 of Annex XIII to the Staff Regulations to an official. Nor do the considerations according to which the General Court observed in that judgment that only an interruption in affiliation to the EU pension scheme could justify inapplicability of the transitional provisions referred to in Articles 21 and 22 have any basis. The General Court found that the applicant in the case that gave rise to that judgment was employed solely on the basis of his appointment as an official, whilst his affiliation to the EU pension scheme was merely a consequence of that finding.

62Furthermore, according to the Commission, in the judgment under appeal the General Court did not treat the conclusion of a new contract as the termination of an official’s service. It merely recalled that, unlike an official, the fact that a member of the contract staff is employed on a particular date cannot be established merely by establishing the existence of an appointment instrument.

63In the present case, the General Court ruled out any continuity between the 2008 contract and the contract of 16 May 2014 following a very detailed factual verification of all the circumstances surrounding the succession of those contracts, in paragraphs 86 to 90 of the judgment under appeal. Since the appellant has not disputed those points, he is wrong to maintain that there is a chain of continuity between those two contracts.

64Lastly, Article 86 of the CEOS is irrelevant for the purposes of interpreting Article 1(1) of the annex to the CEOS.

Findings of the Court

65It should be borne in mind, first, that Annex XIII to the Staff Regulations lays down transitional measures applicable to officials as regards, inter alia, the EU pension scheme.

66Second, the second sentence of Article 1(1) of the annex to the CEOS provides, inter alia, that Article 21 and Article 22, with the exception of paragraph 4 thereof, to Annex XIII to the Staff Regulations, which contain transitional provisions relating to the annual rate of accrual of pension rights and the retirement age of officials, ‘shall apply by analogy to other staff employed on 31 December 2013’.

67In paragraph 81 of the judgment under appeal, the General Court held that the concept of ‘by analogy’ in that provision presupposes that staff are in a situation similar to that of officials, which is excluded, in its view, where a staff member has signed a new contract which implies the commencement of a new employment relationship with the administration of the European Union, unless that new contract does not substantially alter the duties of the staff member, in particular in the function group, such as to call into question the functional continuity of his or her employment relationship with the administration of the European Union. It was on the basis of that premiss that the General Court examined the appellant’s situation and dismissed his action.

68Thus, in order to determine whether the General Court erred in law in its interpretation of the second sentence of Article 1(1) of the annex to the CEOS, it is necessary, in particular, to analyse the concept of ‘by analogy’ in that provision.

69In that regard, it must be pointed out that it follows from the very wording of the second sentence of Article 1(1) of the annex to the CEOS and, in particular, from the concept of ‘by analogy’ used therein, that that provision is intended to guarantee to other staff who were employed on 31 December 2013 the benefit of some of the transitional measures provided for in Annex XIII to the Staff Regulations, despite the existing differences between officials and other staff. That said, that concept of ‘by analogy’ does not, in itself, make it possible to identify precisely, among the other staff employed on 31 December 2013, those who must be able to benefit from the transitional measures concerned, in particular in the event of a subsequent change in their employment relationship with the administration of the European Union.

70According to the Court’s settled case-law, for the purpose of interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 121 and the case-law cited).

71As regards, first, the objectives pursued by the EU legislature in the context of the 2014 reform, it is apparent from recital 29 of Regulation No 1023/2013, which amended the Staff Regulations and the CEOS in order to implement that reform, that ‘transitional arrangements should be laid down to enable the new rules and measures to be applied gradually, whilst respecting the acquired rights and legitimate expectations of staff employed before the entry into force of these amendments to the Staff Regulations’.

72As the General Court rightly points out in paragraph 67 of the judgment under appeal, those transitional provisions include not only Articles 21 and 22 of Annex XIII to the Staff Regulations, but also Article 1(1) of the annex to the CEOS.

73Therefore, in the light of recital 29 of Regulation No 1023/2013, it must be held that those transitional provisions were established without prejudice to the ‘legitimate expectations’ of ‘staff employed’ on 31 December 2013. It is a broad formulation which goes beyond acquired rights in the strict sense and applies to all EU staff, and not only to officials of the European Union.

74It is therefore necessary, as the Advocate General observed, in essence, in point 54 of his Opinion, to interpret Article 1(1) of the annex to the CEOS in the light of the objectives relating to respect for the acquired rights and legitimate expectations of other staff of the European Union employed under a contract on 31 December 2013.

75As regards, secondly, the context of that provision, it must be observed, first of all, that it is apparent from Article 83(2) of the Staff Regulations that officials contribute one third of the financing of that pension scheme, that contribution being fixed at a given percentage of the basic salary (judgment of 10 May 2017, de Lobkowicz, C‑690/15, EU:C:2017:355, paragraph 43). All officials in receipt of a salary or an allowance payable by the European Union who are not yet in receipt of a pension must contribute to the pension scheme established by the Staff Regulations (see, to that effect, judgment of 9 June 1992, Lestelle v Commission, C-30/91 P, EU:C:1992:252, paragraph 23). Those contributions confer on the official the right to a retirement pension irrespective of the duties performed by that official within the administration of the European Union.

76Furthermore, it should be noted that an official who entered the service before 1 January 2014 benefits, under certain conditions, from the transitional provisions laid down in the second paragraph of Article 21 and the second subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, which allow him or her to maintain the annual rate of accrual of pension rights and retirement age as laid down in the Staff Regulations prior to their amendment by Regulation No 1023/2013. An official who entered the service before that date and whose duties would be substantially altered after that date would not, by that fact alone, lose the benefit of those transitional provisions by way of, inter alia, the contributions which he or she continues to pay to that pension scheme during his or her period of service.

77Next, it should be noted that the Staff Regulations and the CEOS establish a pension scheme common to officials and other staff.

78In view of the reference in Article 39(1) and Article 109(1) of the CEOS to the conditions laid down in Chapter 3 of Title V of the Staff Regulations, temporary staff and contract staff also contribute, under the conditions laid down in Article 83(2) of the Staff Regulations, to the financing of that pension scheme.

79Therefore, for the purposes of applying the transitional provisions relating to that pension scheme, laid down in Articles 21 and 22 of Annex XIII to the Staff Regulations, a member of the contract staff, such as the appellant, is in a situation similar to that of an official, as referred to in paragraph 76 of the present judgment, where there is a change to his or her employment relationship with the administration of the European Union after 31 December 2013 that does not entail any interruption in the payment of contributions to the EU pension scheme.

80It follows that, in accordance with the contextual interpretation of the second sentence of Article 1(1) of the annex to the CEOS and the objectives of the transitional provisions laid down therein, referred to in paragraph 74 of the present judgment, relating to respect for the acquired rights and legitimate expectations of other staff of the European Union employed under a contract on 31 December 2013, a staff member other than an official, recruited no later than that date and whose duties have been substantially amended by a new contract concluded after that date, should, by analogy with what applies to officials in a situation such as that described in paragraph 76 of the present judgment, benefit from those transitional provisions, since he or she has not stopped contributing to the financing of that pension scheme.

81It follows from all the foregoing considerations that the General Court erred in law by holding, in paragraph 81 of the judgment under appeal, as regards a staff member other than an official employed on 31 December 2013 and having signed a new contract with the administration of the European Union after that date, that the concept of ‘by analogy’ in Article 1(1) of the annex to the CEOS requires that that new contract should not make a substantial change in the duties of that member of staff such as to call into question the functional continuity of his or her employment relationship with that administration.

82In those circumstances, the appeal must be upheld and, accordingly, the judgment under appeal must be set aside.

The action before the General Court

83Under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, if the decision of the General Court is set aside, give final judgment in the matter where the state of the proceedings so permits.

84In that regard, it should be borne in mind that, before the General Court, the Commission raised an objection of inadmissibility to the action, alleging that there was no act adversely affecting the appellant within the meaning of Article 91 of the Staff Regulations. As stated in paragraphs 34 and 35 of this judgment, the General Court reserved its decision on that plea for the final judgment and decided to examine the merits of the single plea raised by the appellant without first ruling on that plea, on the ground that the action was, in any event, unfounded.

85In those circumstances, in order to give final judgment in the matter, it is necessary to rule on the objection of inadmissibility raised by the Commission before examining the merits of the action.

86In the present case, in the light, in particular, of the fact that both the objection of inadmissibility raised by the Commission and the single plea put forward by the appellant in support of his action have been the subject of an exchange of arguments before the General Court and that examination of those arguments does not require the adoption of any additional measure of organisation of procedure or of inquiry in the file, the Court of Justice considers that the state of the proceedings permits final judgment to be given and that final judgment should be given on it.

Admissibility

Arguments of the parties

87In support of its objection of inadmissibility, the Commission observes that the act challenged before the General Court, that is to say, the reply of 4 January 2016, is an email sent by one of the appellant’s colleague’s in the PMO and that that email contained the following caveat: ‘please note that this message is sent by way of information and does not constitute a decision of the appointing authority/AECE that may be challenged pursuant to Article 90 of the Staff Regulations’. It takes the view that that email does not satisfy the conditions laid down by the case-law concerning acts having an adverse effect.

88First, the Commission asserts that, in the present case, it took no decision but merely supplied information. In particular, that caveat indicated the clear intention of the Commission to provide mere information and to make it clear that it had not taken the precautions necessary for the adoption of an act adversely affecting the appellant.

89Secondly, even if the appellant had submitted a request to the PMO seeking to ascertain his future pension rights, the reply to that request would not have constituted an act adversely affecting him. In pension rights matters, a measure having legal effects can be adopted only on retirement, which is confirmed by the judgment of the General Court of 3 April 1990, Pfloeschner v Commission (T‑135/89, EU:T:1990:26).

90Thirdly, since the pensionable age and the annual rate of accrual of pension rights are fixed by the Staff Regulations and not by an administrative decision, the reply of 4 January 2016 cannot have any scope other than mere information.

91Fourthly and lastly, the provisions of the Staff Regulations relating to the rate of accrual of pension rights and retirement age are capable of being amended by the EU legislature until the pension rights are actually paid. Accordingly, a complaint alleging infringement of them is, by definition, premature and therefore inadmissible.

92In the appellant’s submission, his action was brought against an act adversely affecting him, with the result that it is admissible.

Findings of the Court

93By his action before the General Court, the appellant seeks annulment of the reply of 4 January 2016 and, if necessary, of the rejection decision of 25 July 2016. It is therefore necessary first to consider whether that reply of 4 January 2016 constitutes an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations.

94Under that provision, any person to whom the Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him. Article 91(1) of the Staff Regulations states that 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 concerning the legality of an act adversely affecting that person within the meaning of Article 90(2) thereof. Those provisions are applicable by analogy to actions brought by other staff under Article 117 of the CEOS.

95According to the case-law of the Court of Justice, only acts or measures which produce binding legal effects capable of directly and immediately affecting the appellant’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 (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 44 and the case-law cited).

96In 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, by analogy, judgments of 6 October 2021, Poggiolini v Parliament, C‑408/20 P, EU:C:2021:806, paragraph 32 and the case-law cited, and of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 63 and the case-law cited).

97Thus, the ability of an act to directly affect the legal position of a natural or legal person cannot be assessed solely by reference to the fact that that act takes the form of an email, since that would amount to giving precedence to the form of the act which is the subject of the action over the actual substance of that act (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraphs 64 and 67 and the case-law cited).

98It is therefore necessary, in accordance with the case-law referred to in paragraph 96 of the present judgment, to examine the content of the reply of 4 January 2016, taking into account the context in which the reply was adopted and the powers of the institution which adopted it.

99In that regard, it must be borne in mind that, as is apparent from the file submitted to the Court, the appellant, by email of 4 January 2016, asked the manager of the Pensions Sector of the PMO for explanations of the implications which the 2014 reform might have on his situation following the signing of the contract of 16 May 2014. By the reply of 4 January 2016, that manager informed the appellant that his pension rights had been modified as a result of the change of contract and that, therefore, as far as the appellant was concerned, the normal retirement age and the annual rate of acquisition of pension rights had changed to 66 years and 1.8% respectively as from 1 June 2014.

100It is also apparent from that file that that manager concluded the email with the following wording: ‘I hope this information will be of use to you’. Moreover, that same manager’s signature was accompanied by the following caveat: ‘please note that this message is sent by way of information and does not constitute a decision of the appointing authority/AECE that may be challenged pursuant to Article 90 of the Staff Regulations’.

101Although the reply of 4 January 2016 admittedly contains indications of the PMO’s intention to attribute a purely informational character to it, it also contains precise assurances in that the manager of the Pensions Sector of the PMO informed the appellant therein that he ‘[confirmed] that [his] pension rights [had] been modified as a result of the change of contract’.

102Although, as the Commission observes, the retirement age and the annual rate of accrual of pension rights are fixed by the Staff Regulations and not by the administration, it is nevertheless clear that, in the reply of 4 January 2016, that manager did not merely inform the appellant of the content of the provisions of the Staff Regulations as they result from the 2014 reform, but indicated to him that those provisions were now applicable to him and, implicitly but necessarily, that he could not benefit from the transitional measures provided for in Article 1(1) of the annex to the CEOS. Therefore, that reply should not be viewed as providing the appellant with mere information relating to the content of the Staff Regulations and the CEOS, but as indicating to him the provisions of those texts which the administration considered to be applicable to his situation.

103As observed, in essence, by the Advocate General in point 85 of his Opinion, such factors are liable to preclude the reply of 4 January 2016 from being regarded, in the light of its content, as being for information purposes only.

104That reply, provided by a manager of the Pensions Sector of the PMO, that is to say, the department responsible for the management and payment of pensions for staff of the Commission, was liable to affect the appellant’s interests directly and immediately by bringing about a distinct change in his legal position, particularly as regards the determination of the age at which, as a matter of law, that is to say, in accordance with the regulatory framework in force at any given time, he will be entitled to retire.

105That conclusion is supported in the light of the powers of the author of that reply. It is common ground that it was provided by the service responsible for the management and payment of the pensions of the Commission’s staff, without its being disputed that the Commission was competent to adopt, with regard to the person concerned, decisions on the matter producing binding legal effects within the meaning of the case-law referred to in paragraph 95 of this judgment.

106The Commission states, however, that, as far as pension rights are concerned, a measure producing legal effects can be adopted only on retirement, which is confirmed by the judgment of the General Court of 3 April 1990, Pfloeschner v Commission (T‑135/89, EU:T:1990:26).

107In that regard, it should be noted 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 member of staff cannot benefit from more favourable provisions as regards the annual rate of acquisition of those rights and his or her normal retirement age affects the legal position of the person concerned immediately and directly, even if that act is to be implemented only subsequently. If the position were otherwise, the appellant would be able to ascertain his rights only at the time of retirement and would, until that time, be placed in a state of uncertainty as regards not only his financial situation, but also the age at which he may apply for retirement, which does not allow him to make immediate appropriate personal arrangements to ensure his future as he envisages. It follows that the appellant has a sufficiently clear legitimate, vested and present interest in having an uncertain element such as his retirement age and the annual rate of accrual of pension rights established as soon as possible by a court of law (see, to that effect, judgment of 1 February 1979, Deshormes v Commission, 17/78, EU:C:1979:24, paragraphs 10 to 12).

108Furthermore, it must be borne in mind that intermediate measures aimed at paving the way for the final decision do not, in principle, constitute acts which may be the subject of an action for annulment (see, by analogy, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 43 and the case-law cited).

109However, the finding that an act of an institution constitutes an intermediate measure which does not express the final position of that institution is not sufficient to establish systematically that that act is not a challengeable act that may be the subject matter of an action for annulment (see, to that effect, judgment of 6 October 2021, Poggiolini v Parliament, C‑408/20 P, EU:C:2021:806, paragraph 38).

110According to the Court’s case-law, an intermediate measure which has independent legal effects may be the subject matter of an action for annulment where the illegality attaching to that measure cannot be remedied in an action brought against the final decision for which it represents a preparatory step (see, by analogy, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 46 and the case-law cited).

111Accordingly, where a challenge to the legality of an intermediate act in such an action is not capable of ensuring effective judicial protection for the appellant against the effects of that act, it must be capable of being the subject matter of an action for annulment (see, by analogy, judgment of 6 October 2021, Poggiolini v Parliament, C‑408/20 P, EU:C:2021:806, paragraph 40 and the case-law cited).

112As the Advocate General stated, in essence, in point 89 of his Opinion, if the appellant were obliged to wait until the date on which he would reach the retirement age chosen by the competent authority in order to challenge the final decision taken on that date and which would definitively determine his pension rights, he would be deprived of any effective judicial protection enabling him to assert his rights.

113It is true, as the Commission submits, that an element such as the retirement age of a member of staff may be altered at any time by the EU legislature until that employee’s pension rights are actually paid. However, if the appellant is not to be deprived of the effective judicial protection referred to in the preceding paragraph, he should not be prevented from knowing precisely what his normal retirement age is to be, as a matter of law, without prejudice to any change in the regulatory framework.

114In those circumstances, since the bringing of an action for annulment against the final decision adopted by the Commission at the time of the appellant’s retirement would not be liable to afford him effective judicial protection, the reply of 4 January 2016, which constitutes an act adversely affecting him within the meaning of Article 90(2) of the Staff Regulations, must be capable of forming the subject matter of an action for annulment.

115It follows from all the foregoing considerations that the action for annulment brought by the appellant before the General Court must be declared admissible.

Substance

116In support of his action before the General Court, the appellant relies on a single plea in law, alleging an error of law and infringement of the second and fifth paragraphs of Article 77 of the Staff Regulations, applicable to contract staff by virtue of Article 109 of the CEOS, and the second paragraph of Article 21 and the second subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, in that it is apparent from the reply of 4 January 2016 that the date of entry into service taken into account for the application of those provisions of the Staff Regulations was 1 June 2014, the starting date of the contract of 16 May 2014, whereas 1 July 2008, the date on which he initially entered the service of the Commission as a member of the contract staff, is the date that should have been taken into account.

117It is apparent from the file submitted to the Court that, since 1 July 2008, the date of his initial employment as a member of the contract staff with the PMO, the appellant has worked continuously for the European Union and contributed to the financing of its pension scheme.

118Therefore, as is apparent from paragraph 80 of the present judgment, pursuant to Article 1(1) of the annex to the CEOS, the transitional provisions concerning the maintenance of the annual rate of acquisition of pension rights of 1.9% and the right to a retirement pension at the age of 64 years and 8 months must apply to the applicant by analogy, in accordance with the second paragraph of Article 21 and the second subparagraph of Article 22(1) of Annex XIII to the Staff Regulations respectively.

119Consequently, the reply of 4 January 2016 and the rejection decision of 25 July 2016 must be annulled as contrary to Article 1(1) of the annex to the CEOS.

Costs

120Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

121Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

122Since the appellant has applied for the Commission to be ordered to pay the costs and the Commission has been unsuccessful, the Commission must be ordered to bear its own costs and to pay the costs incurred by the appellant in the present appeal and at first instance.

Operative part

On those grounds, the Court (Second Chamber) hereby:

1.Sets aside the judgment of the General Court of 24 March 2021, Picard v Commission (T‑769/16, EU:T:2021:153), as rectified by the order of 16 April 2021, Picard v Commission (T‑769/16, EU:T:2021:200);

2.Annuls the reply of 4 January 2016 of the manager of the Pensions Sector of the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) and the decision of 25 July 2016 of the Director of Directorate E of the Commission’s Directorate-General for Human Resources and Security dismissing the complaint of 4 April 2016 lodged by Mr Maxime Picard against that reply;

3.Orders the Commission to bear its own costs and to pay the costs incurred by Mr Maxime Picard in the present appeal and at first instance.