JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
19 July 2016 ( *1 )
‛Civil service — Official — Former official — Sums deducted from his retirement pension — Maintenance payable to the ex-wife of the former official — Attachment order adopted by a national court — Attachment order discharged — New order requiring the former official to instruct the Parliament to pay the maintenance to his ex-wife — Instructions to that effect by the former official — Subsequent instructions from the former official to cease the payments to his ex-wife — Parliament’s refusal to execute the instructions — Family law — Exclusive jurisdiction of the national court — Duty of sincere cooperation’
In Case F‑130/14,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Thomas Earlie, former official of the European Parliament, residing in Seville (Spain), represented by D. Bergin, solicitor,
applicant,
v
European Parliament, represented by M. Dean and M. Ecker, acting as Agents,
defendant,
supported by
Mary Earlie Gibbons, residing in Dublin (Ireland) represented by H. Millar, solicitor,
intervener,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
composed of S. Van Raepenbusch, President, J. Svenningsen and J. Sant’Anna (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure,
having regard to the decision taken, with the agreement of the parties, to proceed to judgment without a hearing, under Article 59(2) of the Rules of Procedure,
gives the following
Judgment
1
By application received at the Registry of the Tribunal on 4 November 2014, Mr Earlie has sought the annulment of the decision of the European Parliament of 6 December 2013 modifying his pension rights together with compensation in respect of the various types of harm which he claims to have suffered.
Legal context
2
The first paragraph of Article 23 of the Staff Regulations of Officials of the European Union, in the version applicable to the proceedings (‘the Staff Regulations’), provides as follows:
‘The privileges and immunities enjoyed by officials are accorded solely in the interests of the Union. Subject to the Protocol on Privileges and Immunities, officials shall not be exempt from fulfilling their private obligations or from complying with the laws and police regulations in force.’
3
In addition, the first subparagraph of Article 4(3) TEU provides as follows:
‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’
Factual background to the dispute
4
The applicant entered the employment of the Parliament on 15 October 1973. Appointed a director in 1992, his employment was then withdrawn in the interest of the service, under Article 50 of the Staff Regulations, with effect as of 1 September 1994. The applicant was not re-assigned prior to being retired on 1 June 2006.
5
On 12 February 2003, the Dublin Circuit Family Court (Ireland) granted the divorce of the applicant and his wife, now Ms Earlie Gibbons. The divorce judgment, which required the applicant to make a monthly maintenance payment of EUR 5000 to his ex-wife, also contained an attachment of earnings order addressed to the applicant’s employer, the Parliament (‘the attachment order’). In accordance with that order, the Parliament was required to withhold the amount concerned from the applicant’s remuneration and to pay it directly into his ex-wife’s bank account.
6
On 10 June 2003, the Parliament was notified of the attachment order.
7
By order of 22 February 2010 (‘the order of 22 February 2010’), the Dublin Circuit Family Court endorsed the terms of a settlement between the applicant and his ex-wife which reduced the amount of the monthly maintenance payment due to Ms Earlie Gibbons to EUR 1100. Points 2 to 4 of the order of 22 February 2010 stated as follows:
‘2.
An order vacating/discharging the attachment of earnings order set out at [point] 4 of the [attachment] order … which ... was directed to the applicant’s employer, the ... Parliament.
3.
An order directing the applicant to pay maintenance to [Ms Earlie Gibbons] in the sum of EUR 1100 per month which ... shall be payable from March 2010.
4.
The applicant shall provide the necessary instruction to his employer, the ... Parliament, by way of assignment, to pay the said EUR 1100 per month to [Ms Earlie Gibbons] by direct payment into her bank [account]. This instruction is not an attachment of earnings order. Further the said instruction and assignment is pursuant to the Staff Regulations [and] Article 189 of the Treaty.’
8
In addition, points 7 and 8 of the order of 22 February 2010 provided as follows:
‘7.
Liberty to apply.
8.
Adjourn 6 months to allow [Ms Earlie Gibbons] time to investigate the applicant’s affidavit of means dated 19 [February 20]10’.
9
By letter of 26 February 2010, counsel for the applicant sent a copy of the order of 22 February 2010 to the Parliament. That letter stated that should the Parliament fail to comply with that order, in particular points 2, 3 and 4 thereof, within the month of March 2010, the applicant would bring proceedings against the European Parliament before the Irish courts and would seek damages from it.
10
By letter of 12 March 2010, the applicant requested the Parliament to deduct from his pension and pay to his ex-wife the sum of EUR 1100, corresponding to the amount of maintenance due to her under the order of 22 February 2010, while stating that the request concerned was valid only for a period of six months, at the end of which the situation was to be reassessed by the Dublin Circuit Family Court. The Parliament agreed to comply with that request.
11
With the applicant’s express agreement, set out in an email dated 20 July 2010, the Parliament continued to make the monthly payments to his ex-wife after the six-month period initially specified by the applicant, there being moreover no mention of that limited period in the order of 22 February 2010.
12
By letter of 21 October 2013, the applicant requested the Parliament to cease the monthly maintenance payments into the bank account of his ex-wife and to pay the corresponding amount into the bank account of his new wife. In a letter dated 20 November 2013, the applicant stated, in this connection, that he had brought a new action before the Irish courts to have the order of 22 February 2010 struck out and that, in any event, the order of 22 February 2010 was not an ‘order of attachment to earnings’.
13
By letter of 22 November 2013, the Parliament informed the applicant that the direct payments to his ex-wife would be ceased. The Parliament added that it had noted the fact that the applicant had undertaken to pay his ex-wife the amount of maintenance he owed her himself.
14
On 27 November 2013, the Parliament issued a notice, bearing the number 12, modifying the applicant’s pension entitlements, which stated that it would cease to withhold and pay to the applicant’s ex-wife the monthly sum of EUR 1100 in respect of maintenance.
15
On 6 December 2013, the Parliament issued a new notice, bearing the number 13, modifying the applicant’s pension entitlements (‘Modification Notice No. 13’), by which the deduction of the monthly sum of EUR 1100 in respect of maintenance and its payment to the applicant’s ex-wife was re-established with immediate effect. In the letter communicating that notice to the applicant, dated 9 December 2013, the Parliament justified its decision on the ground that the applicant’s file had been referred to the legal service and that, pending receipt of its opinion, a decision had been made to continue to deduct the sums of EUR 1100 payable to his ex-wife. Nevertheless, the Parliament also drew to the applicant’s notice the fact that, as a result of his request of 21 October 2013, the maintenance for December 2013 had not been deducted or paid to his ex-wife and that it was for the applicant, therefore, to make that payment himself, as he had maintained he would in his request.
16
The applicant learnt of Modification Notice No. 13 on 4 February 2014.
17
By letter of 6 March 2014, sent by email, the applicant submitted a complaint against Modification Notice No. 13. He stated in that letter that he had brought an action seeking amendment of the order of 22 February 2010.
18
On 16 July 2014, the Secretary General of the Parliament, in his capacity as the appointing authority, rejected the applicant’s complaint (‘the decision rejecting the complaint’). That decision was, first, sent the same day to the applicant by registered post with acknowledgment of receipt. Since the letter was not claimed by the addressee, it was returned to the Parliament, which sent it a second time by registered post with acknowledgment of receipt on 2 September 2014. That letter was not claimed either. On 17 October 2014, after a third letter had been sent by registered post with acknowledgment of receipt, the applicant finally learnt of the decision rejecting the complaint.
Forms of order sought and procedure
19
The applicant claims, in essence, that the Tribunal should:
—
annul Modification Notice No. 13;
—
order the Parliament to pay him the sum of EUR 275000 by way of damages for the material and non-material harm suffered on account of the alleged delay in the application of the attachment order and the incorrect application of the order of 22 February 2010.
20
The Parliament contends that the Tribunal should:
—
dismiss the action as inadmissible;
—
in the alternative, dismiss the action as unfounded;
—
order the applicant to pay the costs.
21
By letter from the Registry dated 3 March 2015, the Tribunal informed the parties that a second exchange of pleadings was necessary to complete the file.
22
By letter received at the Tribunal Registry on 16 March 2015, Ms Earlie Gibbons, the applicant’s ex-wife, applied for leave to intervene in the present proceedings in support of the form of order sought by the Parliament.
23
By order of 30 April 2015 in Earlie v Parliament (F‑130/14, not published, EU:F:2015:45), the main parties to the proceedings having been heard, Ms Earlie Gibbons was granted leave to intervene in the present proceedings.
24
By letter received at the Tribunal Registry on 26 May 2015, the applicant’s wife requested authorisation from the Tribunal to lodge certain documents on behalf of the applicant by way of evidence. The Tribunal did not grant that request on the ground that the applicant’s wife was not an intervener in the proceedings.
25
By letter from the Tribunal Registry dated 26 October 2015 sent to all the parties, the Judge-Rapporteur asked several questions by way of measures of organisation of procedure adopted under Article 69 of the Rules of Procedure. Only the main parties to the proceedings replied within the prescribed period.
Law
The claim for annulment
26
In support of his action for annulment, the applicant raises three pleas in law alleging, in essence, first, infringement of the terms of the order of 22 February 2010 and of the exclusive jurisdiction of the Irish courts in family law matters, second, infringement of Article 61 of the ‘Lisbon Treaty’ and, third, infringement of the International Covenant on Civil and Political Rights, adopted on 16 December 1966 by the United Nations General Assembly and which entered into force on 23 March 1976 (‘the International Covenant on Civil and Political Rights’).
Admissibility of the claim for annulment
27
In its statement in defence, the Parliament primarily alleges that the claim for annulment is inadmissible on the ground that, in breach of Article 50(1)(e) of the Rules of Procedure, the applicant did not present the pleas and arguments in support of his claim clearly and precisely enough to allow the defendant to prepare its defence and the Tribunal to rule on the action.
28
The Tribunal notes that it is possible to identify, on reading the application, the three pleas raised, alleging, in essence, first, infringement of the terms of the order of 22 February 2010 and of the exclusive jurisdiction of the Irish courts in family law matters, second, infringement of Article 61 of the ‘Lisbon Treaty’ and, third, infringement of the International Covenant on Civil and Political Rights.
29
In this connection, it is true that the wording of Article 50(1)(e) of the Tribunal’s Rules of Procedure, which entered into force on 1 October 2014, now provides that the application must contain ‘a clear summary of the relevant facts presented in chronological order, and a separate, precise and structured summary of the pleas in law and arguments of law relied on’.
30
However, it has already been held that when the defendant, in its defence, was able to identify certain pleas in law and to present structured arguments in defence and the Tribunal considers itself to be in a position to rule on the action and to assess the legality of the contested decisions having regard to the complaints made by the applicant, the action may be declared admissible (see, to that effect, order of 9 July 2015 in De Almeida Pereira v Eurojust, F‑142/14, EU:F:2015:83, paragraph 23).
31
In the present case, as regards the breach of the terms of the order of 22 February 2010, it must be stated that, both in the decision rejecting the complaint and in the defence, the Parliament answered the plea raised by the applicant by explaining why, having regard to the obligations which are imposed on the applicant by that order, it considered itself obliged to comply with the applicant’s initial instruction to pay the maintenance directly to his ex-wife. The Tribunal, for its part, considers itself to be in a position to understand the scope of the plea raised by the applicant and to rule on that plea.
32
On the other hand, since the pleas relating to the infringement of Article 61 of the ‘Lisbon Treaty’ and of the International Covenant on Civil and Political Rights are mere claims which are not accompanied by any reasoning or explanations of any sort, and do not even, in respect of the International Covenant on Civil and Political Rights, state the provisions of that Covenant allegedly infringed, it must be concluded that those pleas do not satisfy the requirements of Article 50(1)(e) of the Rules of Procedure.
33
Consequently, the plea of inadmissibility raised by the Parliament against the first plea must be rejected but the pleas of inadmissibility raised against the second and third pleas must be upheld.
The merits of the claim for annulment and the single plea alleging breach of the order of 22 February 2010
– Arguments of the parties
34
The applicant claims, in essence, that the Parliament failed to comply with the order of 22 February 2010 inasmuch as it treated it as an attachment order and substituted its own assessment for that of the Irish national court, which has sole competence in family law matters. By rejecting the applicant’s request to cease the monthly maintenance payment to his ex-wife, the Parliament has in effect behaved like a party to the proceedings which gave rise to the order of 22 February 2010 which has thus created a contractual relationship between the applicant’s ex-wife and the Parliament itself.
35
The Parliament contends in reply that it complied with the instructions given by the applicant under the order of 22 February 2010, in accordance with which it was required to make the monthly maintenance payment to the applicant’s ex-wife, pointing out in this connection that the applicant had informed it that, were the Parliament not to comply with the terms of the order of 22 February 2010, it might face legal action.
36
The Parliament adds that, in accordance with the order of 22 February 2010, the applicant’s instruction to make a direct payment of EUR 1100 by way of maintenance into the bank account of his ex-wife was to be carried out ‘by way of assignment’; which, according to the Parliament, means that the applicant’s rights over that sum were to be transferred to his ex-wife and that the applicant therefore did not have the right to modify that instruction as he pleased.
37
The Parliament further points out that, had it complied with the applicant’s request to cease making the maintenance payment to his ex-wife and thereby failed to comply with the order of 22 February 2010, it would have been in breach of the duty of sincere cooperation which binds the EU institutions to the national judicial authorities.
– Findings of the Tribunal
38
As a preliminary point, the Tribunal notes that the obligation on the applicant to pay maintenance to his ex-wife, as set out in the attachment order and then in the order of 22 February 2010, falls within the scope of a private legal relationship between the applicant and another individual, his ex-wife. With regard to that kind of relationship, in particular so far as concerns the observance of his personal legal obligations, in accordance with the first paragraph of Article 23 of the Staff Regulations, the applicant is fully subject to the applicable national law (in this case, Irish law) like any other individual (see, to that effect, judgment of 17 May 2006 in Kallianos v Commission, T‑93/04, EU:T:2006:130, paragraph 49).
39
In addition, in the divorce proceedings which led to the adoption of the attachment order and then the order of 22 February 2010, the Parliament is involved only as a third party, namely as an employer, and not as a party to the proceedings between the applicant and his ex-wife (see, by analogy, judgment of 17 May 2006 in Kallianos v Commission, T‑93/04, EU:T:2006:130, paragraph 50).
40
In that regard, the Tribunal notes that there is a difference between the attachment order, by which the Dublin Circuit Family Court directly imposed obligations on the Parliament as the judgment debtor, and the order of 22 February 2010, by which that court expressly discharged the attachment order and replaced it by a payment mechanism based on a specific instruction which the applicant was required to give to his employer, the Parliament.
41
That said, it is apparent from case-law that any institution is required, by virtue of its duty of sincere cooperation with the national courts, to respond to requests to execute an order adopted by the national court, such as an order like the one in the present case setting out an obligation for a former official to pay maintenance to his ex-wife (see, to that effect, judgment of 17 May 2006 in Kallianos v Commission, T‑93/04, EU:T:2006:130, paragraph 48 and the case-law cited). This duty of sincere cooperation also implies that, even if it is not the direct addressee of such a court ruling, an institution, as the employer of the official owing the maintenance allowance, must comply with the terms of that ruling by refusing to grant a request from the debtor official which clearly runs counter to the obligations directly imposed on that official by the court ruling at issue where that ruling, in accordance with its terms, has been communicated to the institution concerned by the debtor official.
42
It cannot reasonably be disputed that the order of 22 February 2010 requires the applicant, first, to pay his ex-wife, Ms Earlie Gibbons, a monthly sum of EUR 1100 by way of maintenance and, secondly, to instruct the Parliament to make, by way of assignment, a monthly payment of that amount to his ex-wife. Nor is it disputed that on 21 October 2013, when the applicant asked the Parliament to cease all payments to his ex-wife, the order of 22 February 2010 was still in force and enforceable.
43
Thus, since the applicant, by letter of 12 March 2010, gave the Parliament the required instruction (see paragraph 10 above), the Parliament was obliged, under its duty of sincere cooperation with the Dublin Circuit Family Court, to comply with that instruction, which was rendered mandatory by the order of 22 February 2010. In those circumstances, the Parliament could not grant a subsequent request by the applicant which clearly contradicted his first instruction and in so doing participate in a breach of the terms of the order of 22 February 2010.
44
In that regard, the applicant’s argument that the Parliament, in executing the order of 22 February 2010, assumed the role of the Irish courts, which have exclusive jurisdiction in family law matters and to order the applicant, if necessary, to comply with his obligations under the order of 22 February 2010, has no factual basis.
45
It must be stated that the Parliament complied with the terms of the order of 22 February 2010 by refusing to adopt a position, as it was indirectly invited to do by the applicant, on the issue of whether the applicant could legitimately discharge himself from the obligations flowing from the order of 22 February 2010 by limiting the duration of the payments to his ex-wife initially to six months, or whether he could instruct the Parliament to suspend the payments as of a particular date or even whether he could order the Parliament to pay the amount in question to his current wife. Such an issue, which is governed by national law, falls within the exclusive jurisdiction of the Irish courts, which have sole competence for the purposes of amending, as appropriate, the order of 22 February 2010 to the effect sought by the applicant.
46
In addition, it is apparent from the file that it was possible, in principle at the applicant’s request, for his financial situation and the amount of maintenance payable to his ex-wife following their divorce to be re-assessed at regular intervals by the Dublin Circuit Family Court. Such a re-assessment of the situation thus led to the adoption of the order of 22 February 2010. Consequently, it is quite conceivable that the applicant may make a new request for the re-assessment of his financial situation and the amount of maintenance payable to his ex-wife, and he has indeed relied on the existence of such a new request in order to justify his request sent to the Parliament on 21 October 2013 seeking that the payments to his ex-wife be ceased.
47
The fact remains that, by virtue of its duty of sincere cooperation with the Dublin Circuit Family Court, the Parliament was required to comply with the terms of the order of 22 February 2010 and, in particular, the obligation, once the instruction had been given to that effect by the applicant, to deduct from the applicant’s pension the monthly payments, as determined by the national court, and to transfer those sums to the applicant’s ex-wife.
48
Consequently, the single plea must be rejected as unfounded and therefore the claim for annulment of Modification Notice No. 13 must be dismissed.
The claims for damages
Arguments of the parties
49
In his claims for damages, the applicant seeks that the Parliament be ordered to pay him the sum of EUR 275000 by way of compensation for the material and non-material harm he has allegedly suffered on account of, first, the adoption of Modification Notice No. 13 and, secondly, the delay in the execution of the attachment order. The applicant submits, in essence, that the incorrect application of the order of 22 February 2010 by the Parliament caused him financial loss and obliged him to incur high court and legal fees. The Parliament’s attitude also caused him serious health problems and had effects on his family relationships. So far as the attachment order is concerned, the applicant claims that he had to reapply to the Irish courts to clarify the terms of that order and to ensure that the Parliament would correctly apply the terms concerning the payment of the education allowance to his daughter, which caused him significant financial loss.
50
The Parliament contends that the claims for damages should be dismissed.
Findings of the Tribunal
51
According to settled case-law, where the harm on which an applicant relies arises from the adoption of a decision which is the subject of a claim for annulment, the dismissal of the claim for annulment entails, as a matter of principle, the dismissal of the claim for damages, as those claims are closely linked (judgment of 23 October 2012 in Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 106).
52
In the present case, as regards the material and non-material harm allegedly caused by the adoption of Modification Notice No. 13, it must be stated that the purported harm in question has its basis in that notice and that the claim for annulment of the Notice has been dismissed as unfounded. Consequently, the claims for damages based on the adoption of that notice must also be dismissed.
53
Furthermore, as regards the request for damages in respect of the material and non-material harm allegedly caused to the applicant by the delay in the application of the attachment order, the Tribunal notes that it is settled case-law that under Articles 90 and 91 of the Staff Regulations, the admissibility of an action, in particular for damages, is conditional on the preliminary administrative procedure set out in those articles having been properly followed (judgment of 27 June 1989 in Giordani v Commission, 200/87, EU:C:1989:259, paragraph 22, and order of 25 October 2012 in BY v EASA, F‑8/12, EU:F:2012:148, paragraph 37).
54
In this connection, the pre-litigation procedure differs according to whether the damage for which compensation is sought results from a decision-making act having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct by the administration which contains nothing in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time-limits a complaint directed against the act in question, it being open to him to submit the claim for damages either in that complaint or for the first time in the application, whereas in the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation, and be continued, if necessary, by a complaint directed against the decision dismissing the request (judgments of 2 May 2007 in Giraudy v Commission, F‑23/05, EU:F:2007:75, paragraph 69, and 21 February 2008 in Skoulidi v Commission, F‑4/07, EU:F:2008:22, paragraph 56).
55
In the present case, the Tribunal notes that the claim for damages in respect of the material and non-material harm allegedly caused by the delay in the application of the attachment order clearly has its basis in conduct of the administration which contained nothing in the nature of a decision, so that it was for the applicant, prior to lodging his application, to submit a request to the appointing authority and then a complaint, in accordance with Article 90 of the Staff Regulations. It is apparent from the file that such a claim for damages was set out for the first time by the applicant in the application, in breach of the requirements under the pre-litigation procedure.
56
Therefore, the claim for damages in relation to the Parliament’s delay in executing the attachment order must be held inadmissible.
57
Consequently, the claims for damages must be dismissed as unfounded and inadmissible respectively.
58
It follows from the foregoing that the action must be rejected in its entirety.
Costs
59
Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
60
It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Parliament.
61
Pursuant to Article 103(4) of the Rules of Procedure, the Tribunal has decided that the intervener must bear her own costs.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1.
Dismisses the action;
2.
Declares that Mr Earlie shall bear his own costs and orders him to pay the costs incurred by the European Parliament;
3.
Declares that Ms Earlie Gibbons shall bear her own costs.
Van Raepenbusch
Svenningsen
Sant’Anna
Delivered in open court in Luxembourg on 19 July 2016.
S. Van Raepenbusch
President
W. Hakenberg
Registrar
( *1 ) Language of the case: English.
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