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Decision in case 296/2017/NF on the European Parliament not granting an invalidity allowance to a retired parliamentary assistant

Dostępne języki :  en
  • Sprawa :  296/2017/NF
    Otwarta 2018-04-13 - Decyzja z 2018-04-13
  • Dotyczy(Dotyczą) instytucji :  Parlament Europejski

The complaint to the European Parliament

1. The complainant was an accredited parliamentary assistant[1] to a Member of the European Parliament during Parliament’s 7th legislature[2]. His employment contract ended on 1 July 2014. Having already reached the retirement age set out in the EU Staff Regulations[3], the complainant had a right to an EU retirement pension as of 2 July 2014.[4]  

2. The complainant had been in poor health for a number of years. He therefore contacted the European Parliament on 7 July 2014 to apply for an invalidity allowance. By decision of 29 July 2014, the European Parliament considered that the complainant had no right to an invalidity allowance because he already received a retirement pension.

3. In summer 2016, the complainant asked the European Parliament to reconsider its decision not to grant him an invalidity allowance.[5] The complainant gave an account of his medical situation and argued that he could have “obtain[ed] a degree of disability” in 2013 and 2014. He also argued that the decision not to grant him an invalidity allowance was based solely on “formalities” and not on any arguments pertaining to his disease and related disability.

The European Parliament’s response to the complainant

4. In November 2016, the European Parliament rejected[6] the complainant’s request both on procedural and substantive grounds.

5. The European Parliament found that the complainant’s request was inadmissible under the applicable rules of the EU Staff Regulations, given that he had not challenged[7] the European Parliament’s initial decision of 29 July 2014.[8] This notwithstanding, the European Parliament replied that it would have rejected his request as unfounded - had it been admissible - for the following reasons.

6. When the complainant’s contract ended, he was already 67 years of age, that is, older than the statutory retirement age. He therefore retired on 2 July 2014. When the complainant requested an invalidity allowance a few days later, he was no longer in employment but already retired. The EU Staff Regulations[9] provide for an invalidity allowance where a staff member’s employment is suspended because of total invalidity. There is no right to an invalidity allowance where employment ends because of old-age retirement. By way of analogy, the European Parliament referred to case-law of the EU courts according to which “an official who is not prevented from performing his duties because of his state of health manifestly cannot claim an invalidity pension”[10] and “an official who is not obliged by his state of invalidity to end his service, either because he has previously been granted a retirement pension or because he has already resigned, is not entitled to request the initiation of the procedure to establish invalidity”[11].

7. The European Parliament therefore maintained that the complainant was not entitled to an invalidity allowance. It also clarified that the EU Staff Regulations do not allow for a retirement pension to be topped up with an invalidity allowance.

8. The complainant did not agree with the European Parliament’s decision and turned to the Ombudsman in 2017. In his view, the European Parliament’s decision not to grant him an invalidity allowance is discriminatory on the grounds of age, infringes his fundamental right to social security, and amounts to maladministration. The complainant argued that he should have had an effective opportunity to apply for an invalidity allowance and should have been properly informed about the applicable procedure before his contract came to an end. His retirement pension constitutes only 20% of his last salary, whereas the invalidity allowance would amount to 70% of his last salary. The complainant provided proof that the EU’s Joint Sickness Insurance Scheme had recognised his medical condition as a serious illness.

The European Ombudsman's findings

9. Under the EU Staff Regulations[12], a staff member has the right to a retirement pension after having worked for a minimum of ten years in the EU civil service. As an exception to this general rule, a staff member is entitled to a retirement pension irrespective of the length of service if s/he has reached the statutory retirement age. Since 2014, the statutory retirement age is set at 66 years[13].

10. The EU Staff Regulations also give the right to an invalidity allowance[14] for those staff members who can no longer perform their duties because of total invalidity. The invalidity allowance is a substitute for a staff member’s income in active service. It is a replacement income that is paid to a staff member for the time period during which s/he would have performed his or her duties, had s/he not been prevented from working because of total invalidity. If the staff member’s medical condition improves to the extent that s/he no longer suffers from total invalidity, the staff member will have to take up employment again.

11. Once a staff member who receives an invalidity allowance reaches the statutory retirement age, s/he will no longer be entitled to that allowance[15] but will instead receive a retirement pension (just like any other staff member). This is because the invalidity allowance is a substitute for the salary that a staff member would have received during active employment.

12. Under the EU Staff Regulations, the invalidity allowance and the retirement pension are thus two separate types of social security benefits.[16] They serve different purposes and cannot be combined with one another.[17] Information on both the invalidity allowance and the retirement pension are easily available[18] to EU staff members.

13. The provision[19] specifically applicable to accredited parliamentary assistants reads as follows:

1. A member of the contract staff who is suffering from total invalidity and who, for that reason, is obliged to suspend employment with the institution shall be entitled, for as long as the invalidity lasts, to an invalidity allowance, the amount of which shall be determined as follows.

Article 52 of the Staff Regulations [on retirement] shall apply by analogy to recipients of an invalidity allowance. [...]

14. It is undisputed that the complainant did not suspend his employment as an accredited parliamentary assistant because of his medical situation. Rather, his employment contract expired at the end of the European Parliament’s 7th legislature. The complainant did not therefore receive an invalidity allowance during the duration of his contract.

15. When the complainant’s employment contract ended, he was 67 years of age. Therefore, he had a right to an EU pension, which he has been receiving since.  

16. Given that, as explained above, an invalidity allowance and a retirement pension cannot be paid at the same time, the European Parliament was right not to grant the complainant an invalidity allowance instead of, or on top of, his retirement pension. This decision was neither discriminatory, nor otherwise in breach of EU law.

17. It can be noted that medical costs, which will typically be higher in case of a serious illness, are not intended to be covered by the invalidity allowance but by the EU’s dedicated Joint Sickness Insurance Scheme (the health insurance system for EU staff). The Joint Sickness Insurance Scheme has recognised the complainant’s medical condition as a serious illness, which means that it reimburses 100% of his related medical expenses.

18. Prior to being an accredited parliamentary assistant, the complainant worked under the rules of national social security and pension schemes. He may therefore be eligible to receive additional allowances and/or pensions also from the relevant EU Member States.

19. In light of the above, the complaint does not reveal any maladministration by the European Parliament. [20]

 

Tina Nilsson

Head of Inquiries - Unit 4

Strasbourg, 13/04/2018

 

[1] Accredited parliamentary assistants are the personal assistants of Members of the European Parliament (MEPs).

[2] 14 July 2009 to 1 July 2014.

[3] Regulation No 31 (EEC), 11 (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, OJ 1962 L 45, p. 1385.

[4] See Articles 135 and 109 of the Conditions of Employment of Other Servants (‘CEOS’) in conjunction with Article 77 of the Staff Regulations.  

[5] The complainant first requested a review of the European Parliament’s decision by simple letter dated 17 June 2016. When the European Parliament maintained its initial decision, the complainant, on 1 August 2016, lodged an administrative complaint under Article 90(2) of the EU Staff Regulations.

[6] By decision on the complainant’s Article 90(2) Staff Regulations complaint of 1 August 2016.

[7] Under Article 90(2) Staff Regulations, an administrative complaint must be brought within three months.

[8] The European Parliament also referred to case-law of the EU courts according to which the time-limits of Article 90(2) Staff Regulations cannot be set aside by submitting, at a later point in time, a request under Article 90(1) Staff Regulations that the Appointing Authority take a decision on the same matter. See judgement of the Civil Service Tribunal of 20 March 2014, Michel v Commission, F-44/13, ECLI:EU:F:2014:40, paragraph 56.

[9] Articles 101 and 135 CEOS.

[10] Judgment of the Civil Service Tribunal of 22 May 2007, Lopez Teruel v OHIM, F-97/06, ECLI:EU:F:2007:86, paragraph 60.

[11] Judgment in Lopez Teruel, cited above, ECLI:EU:F:2007:86, paragraph 49.

[12] Article 77 Staff Regulations.

[13] Article 52 Staff Regulations.

[14] Article 78 Staff Regulations and Chapter 3 of Annex VIII to the Staff Regulations.

[15] While receiving an invalidity allowance, staff members continue to pay pension contributions, which are calculated based on the amount of the invalidity allowance.

[16] The EU Staff Regulations’ social security system is a specific system for EU staff, which is entirely independent of national social security systems of the Member States. The fact that an invalidity allowance may, in some national systems, be classified as a retirement pension and as such be paid beyond retirement age has no bearing for the EU social security system.

[17] See by analogy Opinion of the Advocate General of 29 June 2004, Nardone v Commission, C-181/03 P, ECLI:EU:C:2004:397, paragraphs 35 and 36: “The legislature considered it fair that a former official who is already benefiting from the award of his pension rights by receiving a retirement pension should not be eligible for a second pension the sole purpose of which is, specifically, to provide replacement income if needed.”; “Even if the conditions for the award of an invalidity pension [now called invalidity allowance] are met, the pension will not be paid if the official concerned is already in receipt of a retirement pension.

[18] For example on the EU institutions’ respective intranet sites. The intranet sites also typically provide the contact details of staff members who can answers individual questions on these matters.

[19] Article 135 CEOS together with Article 101 CEOS.

[20] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions