OP v European Parliament (T-143/22)

Contents

Judgment of the General Court (Fourth Chamber)7 June 2023^note(Civil service — Officials — Survivor’s pension — Refusal to grant — Surviving spouse — Eligibility conditions — Duration of the marriage — Plea of illegality — Article 80, first paragraph, of the Staff Regulations — Article 2 of Annex VII to the Staff Regulations — Orphans’ pension — Refusal to grant — Concept of dependent child — Error of law)In Case T‑143/22,OP, represented by F. Moyse, lawyer,vEuropean Parliament, represented by J. Van Pottelberge and M. Windisch, acting as Agents,supported byCouncil of the European Union, represented by M. Bauer and M. Alver, acting as Agents,THE GENERAL COURT (Fourth Chamber),composed of R. da Silva Passos, President, I. Reine and T. Pynnä (Rapporteur), Judges,Registrar: V. Di Bucci,having regard to the written part of the procedure,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

JudgmentOnly the paragraphs of the present judgment which the General Court considers it appropriate to publish are reproduced here.

1By her action based on Article 270 TFEU, the applicant, OP, seeks, first, annulment of the decision of the European Parliament of 7 June 2021, in so far as it rejects her application for a survivor’s pension on account of the death of her husband, a former official of the Parliament and, on behalf of her son A, annulment of that decision in so far as it rejects her application for an orphans’ pension for their son who has a disability (‘the contested decision’).

Background to the dispute

2The applicant married B in 1980. The spouses were divorced in 2017. On 29 January 2021, the applicant remarried B. The couple had four children, including a son, referred to in paragraph 1 above, born on [confidential].^note In 2015, the Belgian authorities declared that this son had a 66% disability. In the medical certificate intended for the rating of the disability of the applicant’s son, dated 9 April 2021, the applicant’s doctor stated that the son was suffering from a [confidential] disability evaluated at 90%.

3B was a former official of the Parliament who retired in June 2019. He was recognised as suffering from a serious illness on 18 June 2020 and died on [confidential].

4On 22 March 2021, B gave his daughter power of attorney to manage his relations with the Joint Sickness Insurance Scheme of the Institutions of the European Communities (JSIS). On the same day, she contacted the Parliament’s services by email in order to inform them of her father’s state of health, her parents’ remarriage and the existence of their four children. She also asked questions concerning her mother’s entitlement to a survivor’s pension.

5On 25 March 2021, the couple’s daughter sent additional information relating to her parents to the Parliament’s services by email. She also stated that her father’s death was imminent and that one of her parents’ children had a disability. She again asked about her mother’s entitlement to a survivor’s pension.

6On 29 March 2021, the Parliament’s services sent documents for the couple’s daughter to complete in order to update her father’s file. The couple’s daughter replied that her father had died several days earlier and asked questions regarding the steps to be taken.

7On 30 March 2021, the Parliament’s services replied to the couple’s daughter and asked her to complete the form sent the previous day. That same day, the couple’s daughter sent the completed documents, together with supporting documents, to the Parliament’s services.

8On the same day, the Parliament’s services acknowledged receipt of the completed documents and sent the couple’s daughter the documents to be completed in order to apply for her disabled brother to obtain an orphans’ pension. Still on the same day, the couple’s daughter sent the Parliament’s services one of the completed documents and informed them that the medical certificate would also soon be forwarded.

9On 9 April 2021, the Parliament informed the couple’s daughter by email that the orphans’ pension could not be granted to her disabled brother on the grounds that the application had not been received before B’s death.

10On 15 April 2021, the couple’s daughter sent an email to the Parliament’s services, in which she acknowledged their reply concerning her brother’s orphans’ pension, reminded them that he had been disabled for five years and sent them documents completed by their family doctor. She also asked them questions concerning the reimbursement of medical expenses incurred by her brother and the applicant. On the same day, the Parliament’s services replied that it was not possible to reimburse the medical expenses of the couple’s disabled son, as he was not a dependent child at the time of B’s death. On that same day, the couple’s daughter sent an email to the Parliament’s services providing further information on her family’s situation.

11On 5 May 2021, the Head of the Social Security and Pensions Unit of the Parliament informed the applicant of the Unit’s decision to grant her a death allowance under Article 70 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

12On 7 June 2021, the Parliament’s services informed the applicant by way of the contested decision that, first, in accordance with Articles 18 and 20 of Annex VIII to the Staff Regulations, it was not possible to grant her a survivor’s pension and, second, since at the time of B’s death there were no dependent children recognised by the Parliament’s Individual Entitlements Unit, the couple’s disabled son was also not entitled to an orphans’ pension.

13On 10 August 2021, the applicant lodged a complaint with the Parliament seeking, first, annulment of the contested decision and, second, the grant of a survivor’s pension to herself and an orphans’ pension to her son.

14By decision of 10 January 2022, the Parliament rejected the applicant’s complaint (‘the decision rejecting the complaint’). In that decision, the Parliament, referring to the wording of Article 80 of the Staff Regulations, stated that a child could not be recognised as a dependent child under Article 2(5) of Annex VII to the Staff Regulations unless a request to that effect had been submitted to the administration and without the administration having verified compliance with the relevant conditions.

Forms of order sought

15The applicant claims that the Court should:– annul the contested decision;– annul, in so far as necessary, the decision rejecting the complaint;– declare that she is entitled to receive a survivor’s pension and that her son, A, is entitled to receive an orphans’ pension;– order the Parliament to pay the costs.

16The Parliament claims that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law…

Claim for annulment

22In support of her claim for annulment, the applicant puts forward six pleas in law seeking to establish the unlawfulness of the contested decision, alleging, in essence:– first, concerning her survivor’s pension, a plea of illegality in respect of Articles 18 and 20 of Annex VIII to the Staff Regulations;– second, concerning her survivor’s pension, alleging an error in the application of Articles 18 and 20 of Annex VIII to the Staff Regulations;– third, concerning her survivor’s pension, alleging a manifest error of assessment concerning her particular situation;– fourth, concerning the orphans’ pension for her son, a plea of illegality in respect of Article 2 of Annex VII to the Staff Regulations;– fifth, concerning her son’s orphans’ pension, alleging an error of law in the application of Article 2 of Annex VII to the Staff Regulations;– sixth, concerning her son’s orphans’ pension and in the alternative, alleging that the Parliament breached its duty to have regard for the welfare of officials.…

The fifth plea in law, alleging an error of law in the application of Article 2 of Annex VII to the Staff Regulations…

–Merits of the fifth plea

79The applicant submits that the Parliament erred in the application of Article 2 of Annex VII to the Staff Regulations when it justified its refusal to grant an orphans’ pension to her son on the ground that, at the time of her husband’s death, he was not recognised as a dependent child.

80According to the applicant, her son is in the situation provided for by Article 2(5) of Annex VII to the Staff Regulations, namely that of a child prevented by invalidity from earning a livelihood, throughout the period of that invalidity. Thus, according to the applicant, the requirements of Article 2(3)(b) of Annex VII to the Staff Regulations do not apply because a child with a disability would receive an allowance automatically. Furthermore, the applicant submits that the Parliament unduly required that the recognition of a child with a disability be made before the death of his or her parent who was an official, even though that child had been declared to the Parliament’s services before that death. The Parliament’s services did not request additional documents until several days after the official’s death, whereas an immediate response from the Parliament to the questions of the daughter of the deceased official could have made it possible to complete the administrative formalities before the death.

81The Parliament contends that, in order to receive an orphans’ pension, the child must be ‘recognised’ as being dependent at the time of the official’s death in accordance with Article 80 of the Staff Regulations. In the present case, according to the Parliament, the official had never taken steps to obtain an allowance for his adult child with a disability. However, it appears from the scheme and purpose of Article 2(5) of Annex VII to the Staff Regulations that the decision to grant that allowance is to be taken following a request in which the official informs the administration of his or her child’s situation, which the Appointing Authority will then verify. Mere information relating to the existence of a child with a disability, without supporting documents, contained in an email sent to the administration by the daughter of the former official, whose power of attorney was limited to the management of JSIS affairs, is not, in the Parliament’s submission, sufficient to consider that the child should be recognised as dependent.

82In that regard, it should be noted that the first paragraph of Article 80 of the Staff Regulations provides that where an official dies leaving no spouse entitled to a survivor’s pension, ‘the children dependent on the deceased within the meaning of Article 2 of Annex VII at the time of his death shall be entitled to orphans’ pension …’.

83At the outset, it should be noted that there are disparities between the various language versions of the first paragraph of Article 80 of the Staff Regulations. While only the French, Italian and Romanian versions of that provision use the wording ‘enfants reconnus à … charge’ (‘children recognised as … dependent’), the other language versions do not use the term ‘reconnus’ or ‘recognised’. For example, the German version refers to ‘unterhaltsberechtigte Kinder’, the English version to ‘children dependent on the deceased’, the Finnish version to ‘virkamiehen huollettavina olevat lapset’ and the Portuguese version to ‘filhos que sejam considerados como estando a seu cargo’.

84According to the settled case-law of the Court of Justice, the wording used in one language version of a provision of EU law cannot serve as the sole basis for interpreting that provision or be given priority over the other language versions. The provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions existing in all languages of the European Union. Where there is a disparity between the various language versions of a text of EU law, the provision in question must be interpreted in the light of the general scheme and the purpose of the legislation of which it forms part (see judgment of 12 September 2019, A and Others, C‑347/17, EU:C:2019:720, paragraph 38 and the case-law cited; judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 34).

85Accordingly, the first paragraph of Article 80 of the Staff Regulations must be interpreted in the light of both the purpose of that provision and the context in which it operates.

86As regards the definition of those entitled to an orphans’ pension, namely the dependent children of a deceased official, the first paragraph of Article 80 of the Staff Regulations refers to Article 2 of Annex VII to the Staff Regulations as a whole, and not solely to paragraph 2 of that article, where the concept of ‘dependent child’ is defined. Accordingly, for reasons of consistency of the Staff Regulations, it is necessary to refer to all the relevant provisions of Article 2 of Annex VII to the Staff Regulations in order to define the concept of ‘dependent child’ (judgment of 20 January 2009, Klein v Commission, F‑32/08, EU:F:2009:3, paragraph 39).

87It is true that Article 2(5) of Annex VII to the Staff Regulations refers expressly to the dependent child allowance, whereas Article 2(2) is worded in more general terms. Nevertheless, the criteria laid down in Article 2(5) of Annex VII are justified as regards not only the grant of the dependent child allowance but also the grant of the orphans’ pension. From a certain age, children must be able to support themselves and should not be a burden on the EU budget, which also applies to the pecuniary benefits provided for in Article 80 of the Staff Regulations (see, to that effect, judgment of 20 January 2009, Klein v Commission, F‑32/08, EU:F:2009:3, paragraph 40).

88Article 2(2) of Annex VII to the Staff Regulations defines ‘dependent child’ as the ‘legitimate, natural or adopted child of an official, or of his spouse, who is actually being maintained by the official’. Article 2(3)(a) provides that the dependent child allowance is to be granted automatically for children under 18 years of age, while Article 2(5) provides that ‘payment of the allowance in respect of a child prevented by serious illness or invalidity from earning a livelihood shall continue throughout the period of that illness or invalidity, irrespective of age’.

89Moreover, in respect of the application of Article 2(5) of Annex VII to the Staff Regulations, it is for the Appointing Authority to determine, in each particular case and taking into account all the circumstances of the case, whether there is a serious illness or invalidity which prevents the child concerned from earning a livelihood (judgment of 21 October 2003, Birkhoff v Commission, T‑302/01, EU:T:2003:276, paragraph 40).

90In that regard, the term ‘shall continue’ used in Article 2(5) of Annex VII to the Staff Regulations does not mean that the legislature wished to maintain entitlement to an allowance for a child with a disability when he or she reaches the age of majority without including the situation where a child is disabled after reaching the age of majority. It is clear from the case-law that, although that provision clearly covers the situation where payments made under Article 2(3) and payments made under Article 2(5) follow one another without interruption in time, it cannot be ruled out that payment of the allowance in question may be interrupted (judgment of 30 November 1994, Dornonville de la Cour v Commission, T‑498/93, EU:T:1994:278, paragraph 33).

91It should be added that a dependent child, within the meaning of Article 2(2) of Annex VII to the Staff Regulations, whether a legitimate, natural or adopted child of an official or of the official’s spouse, is to be entitled to the dependent child allowance provided that the child is actually being maintained by the official and satisfies one of the conditions set out in Article 2(3) and (5). The dependent child must either be under 18 years of age, or between 18 and 26 years of age and undergoing educational or vocational training, or prevented by serious illness or invalidity from earning a livelihood. In each of those three cases, the Staff Regulations do not confer on the Appointing Authority any discretionary power as to whether or not to grant the orphans’ pension in question, but rather confer on it a limited power, in that it is required to grant that pension if it finds that the conditions are satisfied and not to grant it where they are not (see, by analogy, judgments of 21 October 2003, Birkhoff v Commission, T‑302/01, EU:T:2003:276, paragraph 38, and of 17 November 2021, KR v Commission, T‑408/20, not published, EU:T:2021:788, paragraph 23).

92Thus, it is clear from a combined reading of the first paragraph of Article 80 of the Staff Regulations and Article 2 of Annex VII to the Staff Regulations that entitlement to an orphans’ pension in a case such as that of the applicant’s son is subject to three conditions being satisfied. The first two conditions are substantive, in that the applicant’s son must be suffering from a serious illness or invalidity preventing him from earning a livelihood and he must actually have been maintained by the deceased official. The third condition is temporal, in the sense that the applicant’s son must have been dependent on the deceased official at the time of the official’s death.

93The Parliament’s arguments that an additional condition should be added, relating to the date of the decision recognising the status of dependent child, have no basis in Article 80 of the Staff Regulations, read in conjunction with Article 2 of Annex VII to the Staff Regulations, given the context and purpose of those provisions.

94First of all, it should be noted that the third paragraph of Article 80 of the Staff Regulations provides that, where an official or person entitled to a retirement pension dies but the conditions set out in the first paragraph of that article are not satisfied, the dependent children within the meaning of Article 2 of Annex VII to the Staff Regulations are to be entitled to an orphans’ pension in accordance with Article 21 of Annex VIII to the Staff Regulations. That provision, which relates to that entitlement to an orphans’ pension, does not refer to a procedural condition relating to the existence of a recognition decision which ought to have been adopted before the official’s death.

95Similarly, Article 37 of the Conditions of Employment of Other Servants of the European Union, which provides for a similar mechanism for the payment of an orphans’ pension for dependent children of EU servants, does not impose any condition relating to the date of recognition of the status of dependent child. On the contrary, the first paragraph of Article 37 of the Conditions of Employment of Other Servants of the European Union confers entitlement to an orphans’ allowance on children who are ‘deemed to be dependent on [a servant or person entitled to a retirement pension or invalidity allowance] at the time of death’ in accordance with Article 80 of the Staff Regulations.

96It is true, as the Parliament points out, that the dependent child allowance is granted automatically in the case of a child under 18 years of age, but in other cases, it is granted on application by the official concerned (judgment of 14 December 1990, Brems v Council, T‑75/89, EU:T:1990:88, paragraph 23). However, the sole purpose of that application is to enable the Appointing Authority to ascertain whether the substantive and temporal conditions referred to in paragraph 92 above are satisfied and, if so, to grant a dependent child allowance. The requirement that recognition by the Parliament’s services ought to have taken place before the death, which is not imposed by those provisions, constitutes an additional condition which cannot be followed for that purpose.

97Moreover, those provisions do not require the application to take any particular form or to be accompanied by supporting documents. Thus, by way of example, it follows from the facts of the case which gave rise to the judgment of 30 November 1994, Dornonville de la Cour v Commission (T‑498/93, EU:T:1994:278), that the dependent child allowance was granted to the applicant in that case retroactively, from the point in time when the applicant had been asked to send supporting documents.

98Next, it has been held that the dependent child allowance fulfils a social objective justified by the expenses arising from a present and certain need connected with the existence of the child and his or her actual maintenance (see judgment of 7 May 1992, Council v Brems, C‑70/91 P, EU:C:1992:201, paragraph 9 and the case-law cited). The grant of an orphans’ pension to the dependent children of a deceased official pursues a similar objective. However, such an objective would not be fulfilled if the Appointing Authority were able to refuse to grant an orphans’ pension on grounds unrelated to the child’s situation and the substantive and temporal conditions as recalled in paragraph 92 above.

99While it is true that the provisions of EU law which confer entitlement to financial benefits must be interpreted strictly (judgment of 30 November 1994, Dornonville de la Cour v Commission, T‑498/93, EU:T:1994:278, paragraph 39), it follows from the foregoing considerations that only the combined application of Article 80 of the Staff Regulations and Article 2 of Annex VII to the Staff Regulations, which takes account of the general scheme of the rules governing the orphans’ pension and of the particular situation of the person concerned, namely a child suffering from a serious illness or invalidity, is consistent with the social objective pursued by the payment of an orphans’ pension to such a child, who is prevented from earning a livelihood (see, to that effect and by analogy, judgments of 30 November 1994, Dornonville de la Cour v Commission, T‑498/93, EU:T:1994:278, paragraph 39, and of 29 November 2011, Birkhoff v Commission, T‑10/11 P, EU:T:2011:699, paragraph 50).

100Accordingly, the phrase ‘at the time of … death’ used in the first paragraph of Article 80 of the Staff Regulations must be understood as relating to the relevant date for assessing whether the child of the deceased official satisfies the conditions under Article 2 of Annex VII to the Staff Regulations, and not the date on which a decision in that regard must have been taken by the Appointing Authority. This means that, provided that the substantive conditions for a dependent child were met prior to the official’s death, it is not necessary for the administrative steps to have been completed before that death for the purpose of entitlement to a dependent child allowance.

101It follows from all the foregoing that, by refusing to grant an orphans’ pension to the applicant’s son on the ground that, at the time of B’s death, he had not yet been recognised by the Individual Entitlements Unit as a dependent child, the Parliament erred in the application of Article 80 of the Staff Regulations, read in conjunction with Article 2 of Annex VII to the Staff Regulations.

102Consequently, the fifth plea must be upheld. Accordingly, since the refusal to grant an orphans’ pension is based on a single ground and it follows from the foregoing that that ground is unfounded, the contested decision must be annulled in so far as concerns the refusal to grant an orphans’ pension to the applicant’s son, without it being necessary to rule on the fourth and sixth pleas, which are also directed against the refusal to grant an orphans’ pension.

–Conclusion on the application for annulment…

104However, the contested decision must be annulled in so far as concerns the refusal to grant an orphans’ pension to the applicant’s son, without it being necessary to rule on the fourth and sixth pleas in law.

The claim for recognition of the applicant’s right to receive a survivor’s pension and her son’s entitlement to an orphans’ pension

105The applicant requests that the Court recognise her entitlement to a survivor’s pension and her son’s entitlement to an orphans’ pension. She also asks that the Court grant her son that pension.

106The second sentence of Article 91(1) of the Staff Regulations confers unlimited jurisdiction in disputes relating to pecuniary matters on the Courts of the European Union and entrusts them, inter alia, with the task of providing a complete solution to the disputes before them and of guaranteeing the effectiveness of the judgments by which they annul decisions in staff cases (see judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 49 and 50 and the case-law cited).

107When exercising their unlimited jurisdiction, the Courts of the European Union do not issue directions to the institutions or bodies concerned, but have, if necessary, the power to replace them in order to take the decisions which necessarily involve the conclusions they reach during their legal assessment of the dispute (judgment of 24 November 2021, KL v EIB, T‑370/20, EU:T:2021:822, paragraph 113).

108It should be recalled that, according to the case-law, ‘disputes of a financial character' within the meaning of the second sentence of Article 91(1) of the Staff Regulations include not only actions brought by staff members against an EU institution or body, but also any actions seeking payment by an institution or body to a staff member of a sum which he or she considers to be due to him or her under the Staff Regulations (see, to that effect, judgments of 18 December 2007, Weißenfels v Parliament, C‑135/06 P, EU:C:2007:812, paragraph 65, and of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 45).

109It follows that the present dispute, which concerns the payment of a survivor’s pension and of an orphans’ pension, is a dispute of a financial character.…

111As regards the grant of the orphans’ pension, the partial annulment of the contested decision means that the Parliament must adopt, on the basis of Article 266 TFEU, a new decision concerning the grant of an orphans’ pension to the applicant’s son. It will thus be for the Appointing Authority, in the light of the grounds of the present judgment, to re-examine the situation of the applicant’s son for the purposes of verifying compliance with the conditions set out in paragraph 92 above. Consequently, it cannot now be concluded, although it will be for the Appointing Authority to carry out that examination, that the applicant’s son is entitled to receive an orphans’ pension (judgment of 28 September 2011, Allen v Commission, F‑23/10, EU:F:2011:162, paragraph 117; see also, a contrario, judgment of 24 November 2021, KL v EIB, T‑370/20, EU:T:2021:822, paragraph 121).

112Accordingly, the applicant’s application for recognition of her son’s entitlement to an orphans’ pension and for the grant of that pension must be rejected as premature.

Costs

113Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, pursuant to Article 135(1) of those rules, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any.

114In the present case, the Parliament and the applicant have each failed in part of their respective claims. In view of the circumstances of the present case, the Parliament must be ordered to bear its own costs and to pay those incurred by the applicant.

115The Council shall bear its own costs in accordance with Article 138(1) of the Rules of Procedure.

Operative part

On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:

1.Annuls the decision of the European Parliament of 7 June 2021 in so far as it refuses to grant A an orphans’ pension;

2.Dismisses the action as to the remainder;

3.Orders the Parliament to bear its own costs and to pay those incurred by OP;

4.Orders the Council of the European Union to bear its own costs.

Delivered in open court in Luxembourg on 7 June 2023.