*Update 11.04.2024 we have received a response to our September 2023 note[*] on the application of the Picard judgement: see the new internal Commission Directive announced there: HR states their belief there that ‘case law requires the administration to interpret and apply the judgment in a narrow manner’ but does mention the option of challenging individual cases via Article 90(2).*

Original article: In April, we informed you during a lunchtime conference about the judgement in the Picard case and its far-reaching consequences for (former) Contract Agents (CAs) and temporary agents (TAs) or more precisely: staff that were previously covered by the Conditions of Employment of Other Servants (CEOS).

While the judgement is one of (very few) positive events in recent years for temporary staff, we warned already in our presentation that there might be a problem with the application of this judgement for colleagues who previously worked as CA or TA and have become officials in the meantime. The main reason for this issue is that the Court of Justice has essentially stayed silent on the situation of officials in its judgement in case C-366/21 P. There is nothing sinister in this silence: Mr Picard was and is still a contract agent, so there was no need for the Court to examine and decide on the situation of an official.

In its (quite terse) notice to staff published on 23 June 2023, the Commission dropped a bombshell: after analysis of the judgement and in line with all other Institutions, they will not apply this judgement to former CA and TA who have become officials in the meantime. The argument is that Article 28 of Annex XIII of the staff regulations already foresees something for these colleagues. Numerous colleagues have contacted us about this^[1], usually along the lines of: Are you aware of this? Are you and/or the other unions going to do something about it? But Article 28 is only about the pensionable age, …

To answer these questions here: Yes, Generation 2004 is aware of the notice. And we had asked HR (meeting 21.06.2023) even before the publication of said notice to not make this distinction between staff categories, because it would create yet another rift between staff. But if you work in the staff representation, you get used to being ignored …

However, we will not comment publicly on any potential reaction from our side on this (or other OSP reactions, for that matter). It is neither in our nor your(!) interest as a concerned staff member to discuss potential legal strategies for a court case in public. That would give the other side a direct look into our planning. Therefore, if you write to us to enquire about a potential reaction, be prepared for a very polite and (very) contentless answer.

What we can publish are answers to a number of other questions that have reached us:

1. I am a CA/TA today: what do I need to do?
   If you are still in active service: nothing. The administration will calculate your pension once you retire and take account of the Picard judgement automatically. If you have already received your calculation for your future pension and this calculation was done after the Picard judgment, then the administration has assured us that you should receive an updated calculation automatically.
   If you have retired some time ago already, so that you can no longer file an Article 90(2) complaint against the calculation of your pension (you had only 3 months to do so!): sorry, but your pension calculation has become final. You can try to approach the administration about it, but we do not expect them to move on this and the principle of legal certainty is unfortunately on their side.
   There is a corner case here: colleagues who on the day of the judgement in December 2022 could still have filed an Article 90.2 complaint against their pension calculation. We have not received a definitive answer by the Commission administration on how they would handle such cases. If you are in such a position, we advise you to contact PMO and to see what their reaction is. The Parliament has informed staff that they will apply a favourable stance to everybody who started to receive their pension after the day of the judgement. Consistency demands that all institutions do the same, but as we said above: we have no explicit confirmation of this by the Commission.
2. I am a former CA/TA and now an official: what do I need to do?
   If you are still in active service (and far away from retirement): nothing. At this point in time, there is nothing that you could do to improve the situation.
   You are close to retirement: If you receive the calculation by PMO for your pension, you must file a formal Article 90(2) complaint for it. This is necessary to avoid that it gains definitive legal value. This should gain enough time for all involved parties to finish their analysis and move to actions (and we repeat our statement from above: we will not comment publicly on any potential action).
3. Specific situation relating to the application of the judgement:
   1. I was on leave on personal grounds(CCP) does the judgement still apply to me?
      Leave on personal ground (CCP) does not interrupt your contract. Therefore, the judgement applies if you have been on CCP. This is a bit surprising, because most colleagues do not pay pension contributions during their CCP and might even have a different job and contribute to another pension scheme. But let’s not complain too much about things that are positive for staff (what makes the difference here is the continuity of your contract).
   2. I was on part-time, does the judgement still apply to me?
      Yes, it should apply: you pay a pension contribution during your part-time.
   3. I was unemployed for a short amount of time, does the judgement still apply to me?
      Well, here it becomes a bit weird: If you have worked e.g. until 15 January, then have been unemployed for a month and had a new contract starting on 16 February, this means that you have paid pension contributions in each month. Therefore, the judgement should apply to you.
      If you have been unemployed for the same amount of time, but this period covers a full calendar month and is not distributed over two months, then you have an interruption in your contributions and the judgement should not apply to you.
      Again, we are waiting on a definitive answer from the Institutions on this.

One last plea: we understand that many colleagues are frustrated by the developments in this case (feel free to count us among them). Nonetheless, when you contact PMO, please understand that they are just implementing a decision that was taken elsewhere. They are in no position to change anything here and it is pointless to address your frustration to them.

As always, feel free to contact us if you have questions: we’re here for you.

If you appreciate our work, please consider becoming a member of Generation 2004.

[*] This builds on our March 2023 note and the HR response: this is an interinstitutional matter and we must wait for the institutions to reach an agreement on how to apply it.

^[1] Please bear with us if it took longer than usual for us to react to your message: we were still in the appeal phase for promotions and we give priority to cases where hard deadlines are approaching.

Obsolete updates

Update 06.09.2023 Check out this (Brussels) event for anyone who has made pension contributions in Germany.