“Picard” appeal – a new victory under USL impetus in favor of Contractual Agents

But vigilance is still required….

On December 15, 2022, the Court of Justice of the EU (Second Chamber) annulled the judgment of the General Court of the EU of March 24, 2021, the response of the PMO of January 4, 2016 as well as the decision of the DG RH of 25 July 2016 and decided that Maxime Picard, contract agent of the Commission since 2008 who changed contract after the entry into force of the 2014 Staff Regulations should be subject to the rate of acquisition of pension rights (1.9%) and the retirement age (64 years and 8 months) corresponding to the conditions in force on the date of his entry into service (Statute 2004).
A legal saga of about 8 years ended with a great victory for Maxime and for Union Syndicale Luxembourg, joined in appeal by other unions, which supported them in their just fight for the benefit of contract agents.

Brief summary of the case

Maxime Picard started his career at the Commission in 2008 as a GF I contract agent at PMO Luxembourg. Under the Staff Regulations in force at the time (2004 Staff Regulations), he benefited from an accumulation of pension rights at the rate of 1.9% per year and a retirement age of 64 years and 8 months. .
In May 2014, the Commission offered him a new contract as contract agent FG II, without changing his assignment. A new Statute entered into force in January 2014, providing for a lower pension accrual rate of 1.8% per year and a delayed retirement age of 66.
In doubt, in January 2016 Maxime asked for explanations from the manager of the “Pensions” sector of the PMO, who replied that his pension rights had changed due to the change in contract, and had therefore become less favourable.
Faced with this injustice, Maxime – advised and assisted by the USL – lodged a complaint under Article 90, par. 2 of the Statute. The DG HR rejected this complaint primarily as inadmissible for lack of “act adversely affecting” and, in the alternative, as unfounded.

Proceedings before the Tribunal

With the financial assistance and support of Union Syndicale Luxembourg, – then alone in supporting the case – Maxime brought an action before the Court seeking the annulment of the PMO’s response and, insofar as necessary, of the decision rejecting his complaint (T-769/16).
However, around the same time, a similar case was to be judged, this time concerning a temporary agent (T-128/17, Torné v Commission). The Court suspended Maxime’s case pending the “Torné” judgment. However, in this case, the Tribunal ruled in favor of the temporary agent and confirmed that his pension rights should continue to be calculated according to the provisions of the Staff Regulations in force on the date of his first entry into service (pre-2014), even though Ms Torné had been appointed to another agency after the entry into force of the 2014 Staff Regulations.

When the Picard case resumed, we were unexpectedly confronted with a different interpretation: the Court considered that if the “analogy” mentioned by the “transitional provisions” could be retained for a temporary agent, it was not justified for a contract agent! The Court therefore dismissed Maxime’s appeal.

Appeal to the Court of Justice of the EU

Union Syndicale Luxembourg, in partnership now with the other unions of the Alliance, the Rassemblement Syndical and Generation 2004, continued to support Maxime in his appeal to the Court of Justice of the EU.
In July 2022, the conclusions of the Advocate General gave a glimpse of hope: indeed, he considered that the interpretation that the Court had made of the word “analogy” of the transitional provisions was questionable. By reinterpreting the facts of the dispute in context, he concluded that Maxime’s action was admissible and, above all, that the legislator had intended to apply the transitional provisions to all staff, without distinction between civil servants and “other officers”. Therefore, he considered, as Maxime had argued, and unlike the Court, that the argument which should prevail was the continuity of affiliation to the pension scheme.

By its judgment of December 15, the Court of Justice of the EU followed the conclusions of the Advocate General and considered, in paragraph 81 of judgment C-366/21-P, that the General Court had erred in law . It also annulled judgment T-769/16, the response from the manager of the “Pensions” sector of the PMO as well as the decision of the DG RH rejecting Maxime’s complaint.

USL requests the application of the Picard Jurisprudence to the other agents concerned, and this in all the Institutions.

It is clear that dozens of contract agents finding themselves in a similar situation, expect a regularization identical to that decided by the European Court of Justice for the Picard case.

However, as administrative information from the Commission is slow to emerge, the contract agents concerned are worried about it! Well Named ?
In order to avoid an inflation of costly and unnecessary litigation aimed at applying the Picard case law, the USL appeals to the Commission and the other Institutions – on the basis of the principle of good administrative management – and as was the case several years ago in the Alexopoulou case, where after some hesitation the condemned Commission decided to automatically apply the content of the judgment to all the staff affected.

While waiting for a rapid regularization, let us remain vigilant for a generalized application of this important case law!