Case T‑171/22

OR
and
OS

v

European Commission

Judgment of the General Court (Ninth Chamber), 6 September 2023

(Civil service – Officials – Retirement pension – Pension rights acquired before entry into the service of the European Union – Transfer to the EU scheme – Period of less than 10 years’ service – Death – Refusal to repay capital representing national pension rights transferred and pension rights acquired in the PSEUI – Article 11(1) and Article 12(1)(b) of Annex VIII to the Staff Regulations – Unjust enrichment)

Officials – Pensions – Pension rights acquired before entry into the service of the European Union – Transfer to the EU scheme – Resignation and death of the official – Refusal to repay to his or her legal heirs capital representing national pension rights transferred and pension rights acquired in the EU scheme – Deceased official not having requested the transfer of his or her pension rights to another pension scheme after his or her resignation and before his or her death – No unjust enrichment of the European Union

(Staff Regulations of Officials, Annex VIII, Arts 11(1) and (2) and 12(1)(b))

(see paragraphs 33, 46-52, 54-56)

Résumé

The applicants, OR and OS, are the children and sole heirs of the deceased official A, who entered into the service of the European Union on 16 July 2003.

In September 2005, the deceased official carried out a transfer to the pension scheme of the EU institutions (‘the PSEUI’) of capital representing national pension rights acquired before he entered into the service of the European Union. He then obtained leave on personal grounds for the period from 17 September 2008 until his resignation on 16 September 2020.

The day he submitted his resignation, the deceased official questioned the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) on the procedure to follow in order to be entitled to a transfer of his pension rights acquired within the PSEUI to another pension scheme. However, he died on 5 January 2021, without having formally submitted a request to that effect.

On 18 March 2021, the applicants, in their capacity as legal heirs, submitted a request seeking repayment, first, of the capital representing the national pension rights acquired by the deceased official before his entry into the service of the European Union and transferred to the PSEUI and, secondly, of the capital corresponding to the pension rights acquired by the deceased official within the PSEUI before his death.

By decision of 12 July 2021 (‘the contested decision’), the PMO rejected that request, stating that the deceased official could not claim entitlement to an EU pension, since he had been in service for less than 10 years, and that no provision of the Staff Regulations allowed for repayment of the capital representing the pension rights acquired within the PSEUI, including the rights transferred to the PSEUI by a former official.

The General Court dismissed the action brought before it by the applicants, while providing information on the transfer procedures of national pension rights acquired before entry into the service of the European Union to the PSEUI, as well as pension rights acquired with the PSEUI to another pension scheme, in the context of the death of a former official or staff member.

Findings of the Court

The General Court rejects the single plea for annulment, alleging unjust enrichment of the European Union, stating, as a preliminary point, that in order for a claim for repayment based on unjust enrichment of the European Union to succeed, two cumulative conditions must be satisfied, being proof, first, of an enrichment on the part of the European Union for which there is no legal basis and, secondly, of impoverishment on the part of the applicant which is linked to that enrichment.

As regards the first condition, the General Court notes that the provisions of the Staff Regulations provide that officials or staff members who enter into the service of the European Union are entitled to transfer to the PSEUI the pension rights acquired in respect of their previous professional activities (‘transfer in’), ( 1 ) and that those who leave the service of the European Union are entitled to transfer the pension rights acquired with the PSEUI to another pension fund or to a private insurance company which makes certain specific guarantees (‘transfer out’). ( 2 ) The contributions to the PSEUI on the part of officials and staff members of the European Union – both the contributions resulting from the duties in the service of the European Union and those arising from a ‘transfer in’ – have the purpose of financing the PSEUI, with a view to a future payment of a retirement pension, and do not therefore constitute a capital which might be available to those officials or staff members.

In addition, no provision of the Staff Regulations, the annexes thereto or the general implementing provisions ( 3 ) provides for the possibility or the obligation of repaying all or part of the contributions corresponding to the pension rights acquired within the PSEUI, including those arising from a ‘transfer in’, such a transfer being by its very nature irrevocable, ( 4 ) to an official or staff member who resigned before the completion of 10 years of service, or, in the event of death, to his or her legal heirs. The administration’s only obligation in such circumstances consists in communicating to the official or staff member, from the moment when his or her service terminates, the amount of the actuarial equivalent corresponding to all of the pension rights he or she has acquired, at that time, within the PSEUI. ( 5 ) Only a ‘transfer out’ request makes it possible for that official or staff member to transfer the actuarial equivalent of his or her rights to a retirement pension acquired within the PSEUI to another pension scheme.

In the present case, the General Court notes that the deceased official had not completed 10 years’ service before his resignation nor reached the age of 66, which are however the conditions laid down in order to claim entitlement to a retirement pension, and that he had not submitted a ‘transfer out’ request of the actuarial equivalent of his pension rights acquired within the PSEUI before his death.

It follows that, in the absence of a payment of the deceased official’s retirement pension and of the submission by that official of a ‘transfer out’ request, it cannot be considered that the enrichment of the European Union as a consequence of the retention, following his death, of his contributions to the PSEUI is lacking a valid legal basis.

Since unjust enrichment without a valid legal basis has not been established, the General Court dismisses the action in its entirety, without there being any need to examine whether the second condition on which the finding of unjust enrichment depends is satisfied.

( 1 ) Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

( 2 ) Article 11(1) and Article 12(1)(b) of Annex VIII to the Staff Regulations.

( 3 ) Commission Decision C(2011) 1278 of 3 March 2011 on the general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations on the transfer of pension rights, published in Administrative Notices No 17-2011 of 28 March 2011 (‘the GIP’).

( 4 ) Article 8(5) of the GIP.

( 5 ) Article 3(1) of the GIP.