ECLI:EU:C:2026:778

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OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 17 September 2026 (1)

Case C‑836/24 P

European Commission

( Appeal – Civil service – Retirement pension – ‘Minimum subsistence figure’ rule – Plea of invalidity in respect of the fourth paragraph of Article 77 of the Staff Regulations – Article 277 TFEU – Judgment in Barroso Truta – Decision of a Complaints Committee – Principle of equal treatment )

I. Introduction

1. By the present appeal, the appellant, Ms PT, seeks to have set aside a judgment of the General Court of the European Union (2) dismissing her action, based primarily on the plea of invalidity in respect of the fourth paragraph of Article 77 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). That action sought the annulment of the decision of 4 October 2021 by which the authority authorised to conclude contracts of employment (‘the AACC’) had calculated the appellant’s pension rights pursuant to the ‘minimum subsistence figure’ rule, without ordering the reimbursement of the capital representing the national pension rights previously transferred to the pension scheme of the EU institutions (‘the PSEUI’). The appellant brought a second action based on unjust enrichment, relating to the same facts, which was also dismissed and is also currently under appeal. (3)

2. The background to the dispute concerns the appellant’s transfer of her national pension rights to the PSEUI, which resulted in the crediting of pensionable service of 12 years, 10 months and 17 days. When calculating the retirement pension, the administration carried out the double calculation provided for in Article 77 of the Staff Regulations: the standard calculation, including the service years thus credited, resulted in a monthly amount of EUR 1 635.38; the ‘minimum subsistence figure’ rule, by contrast, resulted in an amount of EUR 1 662.29. The latter amount, which was more favourable, was awarded to the appellant. It follows that the years of pensionable service credited by virtue of the transfer had no practical effect on the amount of the pension.

3. On that basis, the appellant raised, as her main claim at first instance, a plea of invalidity in respect of the fourth paragraph of Article 77 of the Staff Regulations, in so far as it does not provide, in the event of application of the ‘minimum subsistence figure’ rule, for the reimbursement of the capital transferred or, in the alternative, a plea of invalidity in respect of the general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations. (4) In the judgment under appeal, the General Court rejected both pleas.

4. At the request of the Court, the present Opinion will be confined to the third ground of appeal. I would like to state at the outset that I shall propose that both parts of that ground be rejected.

II. Legal framework

The Staff Regulations of Officials of the European Union

5. The second and fourth paragraphs of Article 77 of the Staff Regulations provide:

‘The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year. 1.80% of that final basic salary shall be payable to an official for each year of service reckoned in accordance with Article 3 of Annex VIII.

…

The amount of the retirement pension must not be less than 4% of the minimum subsistence figure per year of service.

…’

6. Article 11(2) of Annex VIII to the Staff Regulations provides:

‘An official who enters the service of the Union after:

– leaving the service of a government administration or of a national or international organisation[,] or

– pursuing an activity in an employed or self-employed capacity[,]

shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Union the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.

In such case the appointing authority of the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Union pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.

Officials may make use of this arrangement once only for each Member State and pension fund concerned’.

III. The appeal

7. The central issue in the present appeal is the relationship between the plea of invalidity under Article 277 TFEU and the line of case-law and the administrative practices on which the appellant relies as a benchmark against which the validity of the fourth paragraph of Article 77 of the Staff Regulations is to be assessed. More specifically, the central issue underlying the dispute is whether the outcome reached by the General Court in the judgment under consideration below, together with an administrative measure adopted by another institution, can form the basis, in the context of a plea of invalidity, of the appellant’s right to reimbursement of the capital transferred.

8. The appellant claims that the Court should set aside the judgment under appeal, grant the form of order sought by her at first instance and order the Commission to pay the costs of both sets of proceedings. The Commission, supported by the European Parliament and the Council of the European Union, as interveners, claims that the Court should dismiss the appeal and order the appellant to pay the costs.

9. The appeal is based on three grounds. The first, divided into two parts, alleges errors of law committed by the General Court in rejecting the plea of invalidity in respect of the fourth paragraph of Article 77 of the Staff Regulations, as regards the comparability of the situations (first part) and the mechanism for calculating the retirement pension in conjunction with the ‘minimum subsistence figure’ rule (second part). The second, divided into three parts, criticises the allegedly disproportionate nature of the refusal to reimburse the pension rights transferred, alleging, respectively, unjust enrichment on the part of the European Union, infringement of the right to good administration and breach of the principle of solidarity. Last, the third, divided into two parts, challenges the manner in which the General Court dealt with the appellant’s arguments based on the analogy with the case that gave rise to the judgment in Barroso Truta (5) and on the decision of the Complaints Committee of the Court of Justice of the European Union (‘the Committee’) of 29 January 2024. (6)

10. For the first part of the second ground of appeal, alleging unjust enrichment of the European Union, the appellant refers to the arguments put forward in the parallel appeal, in Case C‑835/24 P, the sole subject matter of which is that case. I delivered my Opinion on 10 September; (7) I refer to it in full. The present Opinion will therefore be devoted to the examination of the third ground of appeal. As regards the first ground of appeal and the remaining parts of the second ground of appeal, I shall confine myself to the observations strictly necessary to summarise their outcome.

IV. Preliminary observations

11. Before examining the grounds of appeal, it is appropriate to recall the context of the present case. The appellant’s main action is the plea of invalidity under Article 277 TFEU. That plea makes it possible to challenge, incidentally, the applicability of an act of general application on which the contested individual decision is based, on the ground that it is incompatible with higher-ranking rules or principles. (8)

12. While it is true that, as the Court has pointed out, a plea of invalidity ‘does not prevent a case concerned with determining the rights and obligations of officials from being a dispute between the Community and its servants’, (9) the mechanism provided for in Article 277 TFEU is, in any event, by its very nature, concerned with the validity of the act of general application as such, and not with the detailed rules for its interpretation or application in a specific case.

13. The provision whose validity is contested is the fourth paragraph of Article 77 of the Staff Regulations, which lays down the ‘minimum subsistence figure’ rule. That rule forms part of the mechanism, already described, for calculating the retirement pension: compared to the standard calculation based on the years of service taken into account – including years of pensionable service credited in respect of any transfer of national pension rights – the ‘minimum subsistence figure’ rule guarantees a minimum amount determined solely on the basis of the length of service with the European Union. The pension actually awarded corresponds to the more favourable of the two results.

14. The question of principle raised by the third ground of appeal is whether the decision reached by the General Court in the judgment in Barroso Truta, as well as the decision of the Committee adopted after that judgment, can support – as regards the plea of invalidity or the principle of equal treatment – the appellant’s right to reimbursement of the capital transferred. That is the subject of the present Opinion.

V. The first and second grounds of appeal

15. Since the first and second grounds of appeal fall outside the scope of the present Opinion, I shall confine myself to the following observations, in the order in which they are raised.

A. The first ground of appeal

16. By the first part of the first ground of appeal, the appellant challenges the General Court’s rejection of the plea of invalidity on the grounds that the situations were not comparable. However, the appellant fails to explain how the examination carried out by the General Court in paragraph 38 et seq. of the judgment under appeal – which ruled out the comparability between the situation of staff members who transferred their national pension rights and that of those who did not – is vitiated by an error of law. The complaint merely reiterates the argument already rejected at first instance, without identifying the error which allegedly vitiates the General Court’s reasoning. An appeal must, however, indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. That part must therefore be rejected as inadmissible. (10)

17. By the second part of the first ground of appeal, the appellant puts forward three complaints: the first is based on the allegation that there is no ‘primary/subsidiary’ relationship between the calculation under the second paragraph and the rule laid down in the fourth paragraph of Article 77 of the Staff Regulations; the second alleges breach of the obligation to state reasons; the third, in the alternative, alleges breach of the principle of equal treatment in connection with that same calculation mechanism. Those complaints are at odds with the judgment in KY, (11) in which the Court clarified that the ‘minimum subsistence figure’ rule applies only on a subsidiary basis, that is to say, where the application of the calculation rules laid down in the first and second paragraphs does not enable the official to reach the amount guaranteed by that rule. (12) In paragraphs 44 and 45 of the judgment under appeal, the General Court confined itself to taking the same approach, giving reasons in accordance with the requirements of the case-law. The third complaint is purely incidental and shares the fate of the first two.

18. I therefore propose that the Court of Justice reject the first ground of appeal in its entirety, as partly inadmissible and partly unfounded.

B. The second ground of appeal

19. As regards the first part of the second ground of appeal, alleging unjust enrichment, I refer, as I have stated, to my Opinion in the parallel Case C‑835/24 P. I will confine myself to observing that, if the Court wishes to agree with the approach proposed in that Opinion, this will necessarily result in the rejection of the corresponding part in the present case.

20. The second part of the second ground of appeal, alleging infringement of the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, is unfounded. That part merely reiterates, in a different guise, the argument that the refusal to reimburse the capital transferred would lead to a disproportionate result. However, the right to good administration cannot be relied on either to confer on a staff member a right which the applicable regulatory framework does not provide for or to justify an interpretation of the provisions of the Staff Regulations that runs counter to their clear wording.

21. It is true that the principle enshrined in Article 41 of the Charter requires the administration to act fairly and impartially and in accordance with procedural guarantees. It may also guide the interpretation of provisions of the Staff Regulations, within the limits set by their wording and purpose. However, it cannot justify the disapplication of a valid provision of the Staff Regulations or justify an interpretation which alters their legislative scope. That applies a fortiori to the fourth paragraph of Article 77 of the Staff Regulations, which sets out in full the criteria applicable to the calculation of the retirement pension. In the absence of a proven contradiction between that provision and Article 41 of the Charter, the latter provision cannot therefore be used to introduce, by way of interpretation, a method of calculation or a right to reimbursement for which the Staff Regulations make no provision. A different approach would, moreover, undermine the requirement of legal certainty which the Staff Regulations implement by setting out, in precise terms, the criteria for the award of retirement benefits. (13)

22. Nor is the third part, based on the principle of solidarity, supported by the case-law of the Court. The Court has clarified that the PSEUI cannot be equated with a system in which the contributions paid by the person concerned constitute direct consideration for the future retirement benefit. (14) The PSEUI is itself based on a solidarity mechanism: contributions contribute to the financing of a common system and do not confer on the person concerned a right to an equivalent restitution of the sums paid. The right to a pension therefore derives from the status of official or other servant and the conditions laid down by the Staff Regulations, and not from a mathematical equivalence between individual contributions and pension benefits. That part must therefore also be rejected.

23. I therefore propose that the Court of Justice reject the second ground of appeal in its entirety, as partly covered in the Opinion in the parallel case and, as to the remainder, unfounded.

VI. The third ground of appeal

24. The third ground of appeal, to which the substantive analysis of the present Opinion relates, is divided into two parts, which, although formally distinct, in substance form a single complaint, based, first, on the judgment in Barroso Truta and, second, on the administrative practice which followed that judgment.

A. Arguments of the parties

25. By the first part, the appellant submits that the General Court erred in law by ruling out the possibility of relying on the judgment in Barroso Truta, in which the General Court recognised, in hypothetical but sufficiently clear terms, the principle that there is a right to reimbursement of the capital transferred which was not actually taken into account in the calculation of pension rights. By the second part, the appellant complains that the General Court failed to draw the appropriate conclusions from the decision of the Committee, adopted after the judgment in Barroso Truta, in favour of one of the applicants in that case.

26. The Commission, for its part, starts by putting forward an argument of a preliminary nature: the third ground of appeal is directed against considerations which the General Court set out for the sake of completeness, after having already rejected the plea of invalidity on independent grounds. According to settled case-law, that fact is already sufficient, in itself, to reject the ground of appeal as being directed against an argument which does not support the operative part of the judgment under appeal. (15)

B. Analysis

27. It is appropriate to begin with the Commission’s observation that the contested paragraphs were made for the sake of completeness. The observation is well founded: the paragraphs to which the two parts of the ground of appeal refer – paragraphs 51 to 64 – are introduced by the General Court with the words ‘à titre surabondant’, after the rejection of the plea of invalidity had been duly reasoned in paragraphs 35 to 50 and pronounced in paragraph 50. That observation would in itself be sufficient to dispose of the ground of appeal. The reason why I nevertheless consider it is because the question of principle which it raises – whether a line of case-law and the administrative practice arising from it may serve as a benchmark for assessing the validity of a provision of the Staff Regulations – goes beyond the present case and deserves clarification. The following examination is therefore of a subsidiary nature. I shall accordingly examine the two parts of the third ground of appeal separately. With regard to the first aspect, the inapplicability of the judgment in Barroso Truta to the present case is due to three mutually reinforcing reasons: the difference in subject matter between the two cases; the wording of paragraph 103 of that judgment; and the hypothetical and cautious nature of paragraph 106 thereof, as confirmed by the Court’s subsequent case-law. With regard to the second aspect, three distinct obstacles each lead, in and of themselves, to rejection: an administrative decision cannot serve as a benchmark for assessing the validity of a provision of general application; measures taken by an institution in favour of its staff are not binding on others; and the factual element relied on was not introduced into the adversarial proceedings before the General Court. I shall begin with the first, which is the question of principle. I shall conclude with a summary of the ground of appeal as a whole.

1. The first part: whether the judgment in Barroso Truta may be relied on

28. The judgment in Barroso Truta was delivered in an action for damages. The applicants, members of the contract staff of the Court of Justice, had claimed that the European Union had incurred non-contractual liability for the damage allegedly resulting from the inadequacy of the information provided to them by the administration, when they exercised their option to transfer their pension rights, concerning the possibility that the years of pensionable service credited might prove to be of no consequence as a result of the application of the ‘minimum subsistence figure’ rule. After dismissing the claim on the merits, on the ground that there was no actual or certain damage at the time of the proceedings – since the applicants’ pensions had not yet been calculated – the General Court added, in paragraphs 103 to 106 of the judgment, some considerations included for the sake of completeness concerning the remedies that would remain available to the applicants, once their pension rights had been calculated, if the anticipated damage were subsequently to materialise. (16)

29. The appellant draws from those considerations the conclusion that the General Court thereby established, albeit incidentally, the principle that there is a right to reimbursement of the capital transferred which was not actually taken into account in the calculation of the pension. That reading does not appear to me to be well founded.

30. First, the subject matter of the present case is fundamentally different from that of the case that gave rise to the judgment in Barroso Truta. That action concerned a claim for damages based on the administration’s breach of its duty to provide information; the present case concerns a plea of invalidity under Article 277 TFEU, seeking to have the fourth paragraph of Article 77 of the Staff Regulations disapplied. The difference is not merely one of terminology: the two remedies have distinct subject matters and prerequisites, and that has a direct bearing on the thema decidendum, since the invalidity of a provision of the Staff Regulations must be established exclusively in the light of its compatibility with the higher-ranking rules and principles of the EU legal order. By contrast, establishing non-contractual liability on the part of the European Union requires a further step: in addition to an infringement of a legal rule, the existence of damage for which compensation may be awarded and a direct causal link between the alleged infringement and the alleged damage must be established. (17)

31. The considerations set out by the General Court in paragraphs 103 to 106 of the judgment in Barroso Truta therefore do not apply to the specific subject matter of the present case.

32. Second, paragraph 103 of the judgment in Barroso Truta expressly emphasises that the capital transferred to the PSEUI has not disappeared: after being paid by the national body, it was converted into pensionable years which, in principle, must be taken into account in calculating the pension. That is precisely what happened in the present case, through the two calculations carried out by the administration pursuant to Article 77 of the Staff Regulations. The fact that, as a result of those two calculations, the ‘minimum subsistence figure’ rule ultimately prevailed does not indicate a failure to take the transferred capital into account, but rather reflects the normal operation of the mechanism laid down in the Staff Regulations: as the Court clarified in the judgment in KY, the option to transfer pension rights ensures that the pensionable years are taken into account, but does not guarantee any specific financial outcome. (18)

33. Third, it is particularly significant that paragraph 106 of the judgment in Barroso Truta is couched in terms of a mere hypothetical possibility. In the judgment, the General Court stated, in a manner expressly subject to the possibility that the damage might subsequently materialise, that an action for restitution might be brought; such a cautious formulation could not – and, a fortiori, cannot now – be understood as laying down a solution in principle for a future and hypothetical case.

34. In the judgment in KY, the Court of Justice made that clear: in the judgment in Barroso Truta, the General Court had not ruled definitively on the matter and had confined itself to observations couched in particularly cautious terms. (19)

35. It follows that the General Court was right, in paragraphs 53 to 55 of the judgment under appeal, to rule out the possibility of applying the judgment in Barroso Truta to the appellant’s situation. Although the reasoning is concise, it is sufficient: it precisely identifies the three features – the subject matter of the action, the obiter nature of the considerations, and their hypothetical formulation – which prevent the judgment in Barroso Truta from producing the legal effect that the appellant attributes to it.

36. One final observation seems worth making. Even if the considerations included for the sake of completeness in the judgment in Barroso Truta were considered to be an indication of the General Court’s approach, they referred, in paragraph 104, to an action brought against decisions determining the amount of the applicants’ pension rights; in other words, under the system of remedies available to staff, they referred to the judicial remedy provided for in Article 91 of the Staff Regulations. The plea of invalidity in respect of the fourth paragraph of Article 77 of the Staff Regulations, raised by the appellant in the present proceedings, was not even mentioned. It is therefore highly questionable to suggest that the General Court thereby intended to anticipate a ruling on the conformity with the higher-ranking principles of EU law of a provision of an act of general application such as Article 77 of the Staff Regulations. The first part of the third ground of appeal must therefore be rejected as unfounded.

2. The second part: the relevance of the decision of the Committee of 29 January 2024

37. By the second part of the third ground of appeal, the appellant submits that, following the delivery of the judgment in Barroso Truta, one of the applicants in that case obtained, by decision of the Committee of 29 January 2024, the annulment of the AACC’s decision rejecting his application for reimbursement of the capital representing that applicant’s national pension rights. That decision is based on the principle of equal treatment in relation to two other former applicants in the case that gave rise to the judgment in Barroso Truta – referred to as Mr G and Mr F – who, according to that decision, had previously obtained reimbursement of the capital transferred. The appellant submits that the General Court should have regarded that circumstance as confirmation that her arguments were well founded and that, in any event, the refusal to treat her in the same way constitutes a breach of the principle of equal treatment and the right to good administration.

38. Three further points, which emerge from the decision of the Committee and are relevant to the analysis that follows, should be noted. First, the complainant had put forward three separate grounds before the Committee: manifest error of assessment, unjust enrichment on the part of the European Union and breach of the principle of equal treatment. The Committee upheld the ground relating to equal treatment and stated that there was no need to examine the others; it therefore did not rule on the plea alleging unjust enrichment, which was left undecided. Second, the case decided by the Committee concerned a situation in which the fact that the years of pensionable service credited were in part of no consequence resulted from the application of the pension ceiling of 70% provided for in the second paragraph of Article 77 of the Staff Regulations, since the complainant had reached a theoretical pension rate of 80.02361%, which was reduced to the maximum laid down in the Staff Regulations. The situation in that case is therefore different from that of the appellant, since her pension was determined in accordance with the ‘minimum subsistence figure’ rule laid down in the fourth paragraph of Article 77. Third, as regards the reimbursements previously granted to Mr G and Mr F, the decision merely notes their existence for the purposes of assessing comparability, without establishing either their legal basis or the exact factual circumstances.

39. In the light of those factors, the appellant’s arguments encounter three separate obstacles, which I shall examine in the order in which I have set them out. The first, which is the question of principle, is structural in nature and concerns the relationship between an administrative decision and a plea of invalidity. The second is that measures taken by one institution for the benefit of its staff are not binding on the other institutions. The third is that the factual element relied on was not introduced into the adversarial proceedings before the General Court, with the result that the appellant cannot allege that the General Court distorted it. Each of those obstacles, taken on its own, is sufficient to lead to the rejection of the second part of the third ground of appeal.

40. As regards the first obstacle, it seems useful to distinguish three levels at which the ‘legal basis’ of an individual decision may be challenged: (i) the absence of an applicable provision; (ii) its erroneous interpretation or application to the case at hand; and (iii) the invalidity of the provision in the light of higher-ranking provisions or principles. Only the third scenario is relevant for the purposes of the plea of invalidity raised by the appellant. The proceedings at first instance and the present appeal concern the validity of the fourth paragraph of Article 77 of the Staff Regulations, which the appellant challenges under Article 277 TFEU. What is not at issue, however, is the interpretation or application of that provision by the administration in the particular case. (20)

41. The decision of the Committee falls within the second of those levels, not the third. It applies Article 77 of the Staff Regulations to a particular case; it does not call into question its validity, nor could it have done so. The adoption of a particular interpretation or method of application of the provision cannot, in itself, give rise to the inference that the provision itself is invalid. That does not mean that the same decision cannot be relevant elsewhere: it may play a role in an action based on unjust enrichment on the part of the European Union – and it is, not coincidentally, in that context that the appellant has placed her argument in the parallel Case C‑835/24 P. However, that is a different context from that of a plea of invalidity, and it is in that parallel case that the matter must be examined.

42. The decision itself confirms that. The Committee upheld the complainant’s plea alleging breach of the principle of equal treatment and did not examine the plea based on unjust enrichment, which was left undecided. Consequently, even in the administrative proceedings, no general principle governing restitution was laid down.

43. The distinction is not merely a formal one. The purpose of the review of validity under Article 277 TFEU is to ensure the conformity of an act of general application with the higher-ranking rules and principles of the EU legal order; (21) it is not concerned with the manner in which a particular administration has applied that act. The practice relied upon in the present case – namely, the decision of the Committee of 29 January 2024 – falls within the latter category. To accept that that practice could disclose a defect affecting the validity of the provision would lead to a consequence whose implausibility is apparent merely from stating it: the validity of a provision of the Staff Regulations, a single body of rules applicable in identical terms to all the institutions, would vary according to the institution which applied it and depending on the time at which that institution changed its practice. Such an outcome is incompatible both with the uniform application of the Staff Regulations and with the requirement of legal certainty.

44. As regards the second obstacle, and in the alternative, it should be recalled that, according to settled case-law, measures adopted by one EU institution in favour of a particular group of persons constitute, in the absence of any legal obligation under the Staff Regulations, measures which cannot be relied on in support of an allegation of breach of the principle of equal treatment in relation to another institution. (22) The decision of the Committee, although favourable to its addressee in the context of the civil service of the Court of Justice, is not – in itself – an act sufficient to give rise, on the part of the Commission’s AACC, to an obligation to treat the person concerned in the same way. It should be added that the reference in that decision to the reimbursements previously granted to Mr G and Mr F is not accompanied by any reconstruction of the formal legal basis for those reimbursements: the Committee merely establishes their existence for the purposes of assessing comparability, without specifying whether they had been granted pursuant to an obligation under the Staff Regulations, in direct application of paragraph 106 of the judgment in Barroso Truta, on grounds of administrative fairness or on some other basis. In paragraph 58 of the judgment under appeal, the General Court had already noted the absence of any such indication, and the decision of the Committee does not remedy that omission.

45. Last, as regards the third obstacle, and in the further alternative, it does not appear from the elements referred to in the judgment under appeal that the decision of the Committee was formally placed on the file in the proceedings at first instance, or that its content was explained sufficiently to enable the General Court to assess its significance: in paragraph 56 of the judgment under appeal, the General Court merely states that the fact of the reimbursements made following the judgment in Barroso Truta was raised at the hearing and characterises it as a mere unsubstantiated assertion. In any event, the decision was produced in the file of the present proceedings only as an annex to the appeal, and it does not appear from the information available that it had been formally introduced into the adversarial proceedings before the General Court. Irrespective of the question of the rules applicable to the production of new evidence on appeal, it is in any event clear that the appellant has not demonstrated, as required in appeal proceedings, that the General Court distorted the evidence submitted to it. (23)

46. The three obstacles examined above lead unequivocally to the rejection of the second part of the third ground of appeal. The decision of the Committee cannot, as a matter of law, call into question, in the context of a plea of invalidity, the validity of the fourth paragraph of Article 77 of the Staff Regulations. That decision is, in fact, an act adopted by an EU institution in the exercise of its functions, based on the principle of equal treatment and concerning a situation which is structurally different from that of the appellant.

3. Overall assessment

47. Looking at the third ground of appeal as a whole, it seems to me that it rests on one and the same erroneous premiss: that taking into account a line of case-law cautiously formulated in the judgment in Barroso Truta and an administrative decision adopted as a consequence of that judgment may, in itself, serve as a benchmark against which the validity of the fourth paragraph of Article 77 of the Staff Regulations is to be assessed. That premiss conflates different levels of analysis: a plea of invalidity presupposes that the provision relied upon is compared with higher-ranking rules, not with other provisions of equal rank and, a fortiori, not with an administrative practice developed within another institution and in a structurally different factual situation, even where that practice has resulted in more favourable treatment for the person concerned.

48. The issue in the case that gave rise to the judgment in Barroso Truta may, where appropriate, be relevant in an action based on unjust enrichment – which explains its examination in the Opinion which I am delivering in the parallel Case C‑835/24 P. In the context under consideration here, however, that argument cannot succeed.

49. Nevertheless, it cannot be overlooked that, in cases where the ‘minimum subsistence figure’ rule takes precedence over the standard calculation, the system established by Article 77 of the Staff Regulations produces an outcome which – from the perspective of an individual staff member whose career in the European Union has been short and whose national pension rights, once transferred, prove to be economically inconsequential – may legitimately appear unsatisfactory. That, moreover, is the perception which emerges from paragraph 106 of the judgment in Barroso Truta and from the decision of the Committee itself to which the appellant refers. For the reasons set out above, that does not constitute a defect affecting the validity of the provision of the Staff Regulations; as regards any possible restitutionary remedy, that remains subject to the conditions governing an action for unjust enrichment, examined in the parallel Case C‑835/24 P.

50. Determining whether corrective measures are necessary or appropriate entails a normative assessment aimed at defining the overall framework of the applicable rules. Such an assessment falls outside the scope of the judicial function, which is confined to verifying whether the existing rules comply with the rules and principles of the legal order and does not extend to replacing the legislature in making regulatory choices.

51. I therefore suggest that the Court reject the third ground of appeal, in both its parts, as unfounded. The fact that the General Court’s reasoning in paragraphs 51 to 64 of the judgment under appeal was included purely for the sake of completeness, as described above, supports that conclusion.

VII. Conclusion

52. In the light of all the foregoing considerations, and subject to the assessments which the Court may make of the grounds of appeal and complaints other than the third, I propose that the Court should reject the third ground of appeal, in both its parts, as unfounded.

1 Original language: Italian.

2 Judgment of 25 September 2024, PT v Commission (T‑367/22, EU:T:2024:654; ‘the judgment under appeal’).

3 For the parallel case concerning unjust enrichment, see judgment of 25 September 2024, PT v Commission (T‑788/22, EU:T:2024:655), which is the subject of the appeal in Case C‑835/24 P.

4 The joint reference to Articles 11 and 12 of Annex VIII reproduces the title of the general implementing provisions adopted for both provisions. In the present case, only Article 11(2) is relevant. Article 12, which governs transfers to persons who leave the service without having acquired the right to a retirement pension, does not apply to the appellant.

5 Judgment of 18 September 2018, Barroso Truta and Others v Court of Justice of the European Union (T‑702/16 P, EU:T:2018:557; ‘the judgment in Barroso Truta’).

6 Decision of the Complaints Committee of the Court of Justice of the European Union of 29 January 2024 (R-12/23; Annex A.3 to the appeal).

7 See also, to that effect, my Opinion in PT v Commission (C‑835/24 P, EU:C:2026:751).

8 Pursuant to Article 277 TFEU, incidental challenges concern the validity of an act of general application which forms the basis of a contested individual decision: see judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208, paragraphs 43 and 44 and the case-law cited). It is in that sense that the term ‘invalidity’ is used below; in the documents before the Court, the action is referred to as a ‘plea of illegality’.

9 Judgment of 5 October 2000, Council v Busacca and Others (C‑434/98 P, EU:C:2000:546, paragraph 24).

10 See, to that effect, judgments of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 43), and of 3 October 2013, Rintisch v UAMI (C‑120/12 P, not published, EU:C:2013:638, paragraph 49).

11 Judgment of 4 May 2023, KY v Court of Justice of the European Union (C‑100/22 P, not published, EU:C:2023:377; ‘the judgment in KY’).

12 The judgment in KY, paragraphs 64 and 65.

13 See, to that effect, order of the General Court of 10 February 2025, FB v Parliament (T‑468/24, EU:T:2025:156, paragraph 41).

14 The judgment in KY, paragraph 69. More recently, see judgment of 18 December 2025, Bopuis (C‑776/24, EU:C:2025:1010, paragraph 52).

15 See, to that effect, judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 63 and the case-law cited).

16 The judgment in Barroso Truta, paragraphs 103 to 106).

17 See judgment of 16 December 2008, Masdar (UK) v Commission (C‑47/07 P, EU:C:2008:726, paragraph 49 and the case-law cited).

18 The judgment in KY, paragraph 69.

19 The judgment in KY, paragraph 81. See also, to that effect, judgment of 9 November 2022, WP and Others v Commission (T‑604/21, EU:T:2022:686, paragraph 56).

20 See judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208, paragraphs 43 and 44).

21 Judgment of 16 March 2023, Commission v Calhau Correia de Paiva (C‑511/21 P, EU:C:2023:208, paragraph 44).

22 Paragraph 57 of the judgment under appeal and the case‑law cited.

23 See, to that effect, judgment of 27 March 2025, XH v Commission (C‑91/23 P, EU:C:2025:219, paragraph 28 and the case-law cited).

Opinion of Advocate General Biondi delivered on 17 September 2026.###

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