29.9.2012   

EN

Official Journal of the European Union

C 295/31

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set aside the order of the Civil Service Tribunal of 12 July 2012 in Case F-22/11 Conticchio v Commission;

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grant the appellant the form of order sought at first instance;

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in the alternative, in the event that the Court should consider it appropriate and necessary, refer the case back to the Civil Service Tribunal to rule on the form of order sought by her at first instance;

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declare that the action at first instance, in relation to which the order under appeal was made, was admissible and well founded in its entirety, without exception;

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order the defendant to reimburse the appellant all costs, disbursements and fees incurred by her in relation both to the proceedings at first instance and to the present appeal proceedings.

1.

First ground of appeal: ‘Failure to have regard to the principle of good faith, fairness and impartiality — failure to indicate clearly the prescriptive authority to be attributed to certain provisions and practices followed by the Commission in its relationships with its employees’

In that connection, the appellant states that in the order under appeal her arguments were held to be manifestly unfounded, with the Civil Service Tribunal finding that the salary slip for January 2010 could be challenged as from when she became aware of her actual position. However, that salary slip is not a decision-making act which can be challenged independently, since it is not conclusive of her position at the time of pension. It is settled case-law that, since a salary slip is an administrative decision of an accounting nature, it cannot constitute per se an act adversely affecting an official and, consequently, in the absence of other specific elements, it is not open to challenge before the courts. In that regard, the appellant states that the SysPer 2 system is not sufficient to quantify future pension rights in pecuniary terms, just as the ‘Calculette Pension’ (pensions calculator) gives a figure which is solely indicative and not open to challenge. Ms Conticchio was only able to challenge the final decision, communicated in writing, concerning the award and calculation of her pension rights, since it was not until then that she could be certain of the exact monthly amount of the pension itself.

2.

Second ground of appeal: ‘Infringement of the right to judicial protection and the right to a public hearing’

Since the Civil Service Tribunal took the view that the documents before it provided it with sufficient information, it decided to give a decision by reasoned order without taking further steps in the proceedings. That decision infringed the appellant’s right to full judicial protection. Ms Conticchio’s right to set out her own arguments was not upheld; nor, contrary to the principle of fair legal process, was she allowed to provide further clarification with regard to possible grounds of inadmissibility and/or the unfounded nature of the action. To that effect, the appellant states that Article 41 of the Charter of Fundamental Rights of the European Union enshrines the right to good administration, understood as the right of every person to have his affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union. That right includes, inter alia, the right of every person to be heard before the adoption of an individual measure which affects him adversely.

3.

Third ground of appeal:‘Unjust enrichment — Infringement of due process’

The appellant submits that the action at first instance cannot be considered out of time, since it was impossible to draw enough evidence from the salary slip to support the plea in law under consideration. The appellant was unable to allege unjust enrichment by the Commission until 26 May 2010, when she received the decision calculating her pension. At no point did she have full knowledge of the amount of contributions paid, since she never received the relevant notifications from the Commission services responsible. It must also be stated that the actuarial equivalent of the previous pension rights accrued by her with the Italian Istituto nazionale della previdenza sociale (National institution for social welfare) was paid to the Commission and those rights transferred to the Community pension scheme, thereby creating an imbalance between the pension which she received and the contributions paid throughout her career. In that way, the Administration first required a specific level of contributions and then awarded a level of seniority lower than the actual number of years worked during the career, giving rise to its own unjust enrichment at the expense of its officials.