JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

4 June 2003

Joined Cases T-124/01 and T-320/01

Pietro Del Vaglio

v

Commission of the European Communities

‛Officials — Weighting — Pension — Definition of residence — Burden of proof — United Kingdom’

Full text in French   II-767

Application for:

the annulment of the Commission's decisions of 5 April 2000 and 6 September 2001 refusing to apply the United Kingdom weighting to the applicant's pension from, respectively, 8 May 1999 and 24 September 2000, and for damages and default interest on the remainder of the pension owed.

Held:

The application in Case T-124/01 is dismissed. The Commission's decision of 6 September 2001 is annulled in so far as the Commission refused to apply the United Kingdom weighting to the applicant's pension from 1 January 2001. The remainder of the application in Case T-320/01 is dismissed. The Commission is ordered to pay default interest to the applicant at the rate set by the European Central Bank for capital refinancing operations in force during the various phases of the period concerned, increased by two percentage points per annum, on the arrears of pension from 1 January to 31 March 2001; that interest must be calculated from the various dates at which each payment under the pension scheme should have been made, up to the date on which the payment was effected. In Case T-124/01, the parties are orderd to bear their own costs. In Case T-320/01, the Commission is ordered to bear its own costs and pay half the applicant's costs. In Case T-320/01, the applicant is ordered to bear half his own costs.

Summary

1. Officials — Pensions — Weighting — Purpose — Application of the weighting for the pensioner's country of residence — Concept of residence

   (Staff Regulations, Art. 82)

2. Officials — Appeals — Assessment of the legality of the contested measure on the basis of the facts and the law as they stood at the time when it was adopted

   (Staff Regulations, Art. 91)

3. Officials — Appeals — Claim for damages — Annulment of the contested measure — Adequate compensation for non-pecuniary harm

   (Staff Regulations, Art. 91)

1.  It follows from the very wording of Article 82 of the Staff Regulations that pensioners are entitled to have applied to their pensions the weighting laid down for the country in which they prove they have their residence. The applicable weightings are intended to ensure that all former officials receive benefits having the same purchasing power, irrespective of their place of residence, notwithstanding the fact that the amount of the pension paid may be spent in a country other than the country of residence. The choice of the country of residence as the criterion of reference for the purpose of evaluating the living conditions and purchasing power of recipients of pensions is justified by the fact that the concept of residence, within the meaning of Article 82 of the Staff Regulations, is to be understood as the place where the former official has actually established his centre of interests and, accordingly, as the place where he is deemed to incur his expenditure.

   With regard to the place where the person concerned has established, and intends to maintain, the permanent or habitual centre of his or her interests, residence implies, irrespective of the purely quantitative element of the time spent by the person in a particular country, not only the actual fact of living in a given place, but also the intention of thereby achieving the continuity which stems from a stable way of life and from the course of normal social relations. This concept of residence is peculiar to the Community civil service and does not necessarily coincide with national meanings of the term.

   (see paras 70-72)

   See: 284/87 Schäflein v Commission [1988] ECR 4475, para 9; T-285/94 Pfloeschner v Commission [19951 ECRSC I-A-291 and II-889, para 46; T-238/95 to T-242/95 Mongelli and Others v Commission [1998] ECRSC I-A-319 and II-925. paras 41 to 43; T-60/00 Liaskou v Council [2001] ECRSC I-A-107 and II-489, para 53, and the case-law cited; T-29/01 Puente Manin v Commission [2002] ECRSC I-A-157 and II-833, para 60, and the case-law cited

2.  The legality of an individual measure contested before the Community judicature must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. If the Court had to examine that legality in the light of facts that did not exist at that time, it would be assuming the role of the institution which took the measure in question. However, it is not for the Court to substitute itself for the institutions.

   (see para 77)

   See: 15/76 and 16/76 France v Commission [1979] ECR 321, para 7; C-449/98 P IECC v Commission [2001] ECR I-3875, para 87; T-19/90 Von Hoessle v Court of Auditors [1991] ECR II-615, para. 30; T-177/94 and T-377/94 Altmann and Others v Commission [1996] ECRSC I-A-553 and II-1471, para. 119

3.  The annulment of a measure of the administration which has been challenged by an official constitutes in itself appropriate and, as a general rule, sufficient compensation for any non-pecuniary harm which the official concerned may have sustained as a consequence of the measure which has been annulled.

   (see para. 119)

   See: C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29; T-89/01 Willeme v Commission [2002] ECRSC I-A-153 and II-805, para. 97