Judgment No. 4498
Decision
The complaint is dismissed, as is CERN’s counterclaim.
Summary
The complainant contests the decision to reject his claim concerning a surviving spouse’s pension.
Judgment keywords
Keywords
pension; survivor's benefit; complaint dismissed
Consideration 5
Extract:
The Tribunal observes that Judgment 3876 has no “res judicata” authority in the present case, since the force and effect of “res judicata” can only be attributed to a judgment rendered between the same parties, and this is not the case here. The applicable approach is stare decisis.
Reference(s)
Jugement(s) TAOIT: 3876
Keywords
res judicata; precedent; stare decisis
Consideration 5
Extract:
[T]he possibility for a spouse whom the official has married after her or his retirement to benefit from a surviving spouse’s pension cannot be viewed as a fundamental and essential term of employment within the meaning of Judgment 832.
Reference(s)
Jugement(s) TAOIT: 832
Keywords
acquired right; pension; survivor's benefit; spouse
Consideration 10
Extract:
The Tribunal observes that the principle stated in Judgment 3876 is that there is not an acquired right to a surviving spouse’s pension in the event of marriage after retirement, given that the possibility for a spouse whom the official married after her or his retirement to benefit from a surviving spouse’s pension does not fulfil the condition of a fundamental and essential term of employment. This principle is applicable regardless of the amount of the premium. Indeed, if there is no acquired right, the amount of the premium is irrelevant, since it only concerns the purchase of a “new right” under Article II 5.09. Its rate in no case infringes an acquired right, so the criteria adopted to set the premium cannot be challenged with arguments regarding acquired rights.
Reference(s)
Jugement(s) TAOIT: 3876
Keywords
acquired right; pension; survivor's benefit; spouse
Consideration 13
Extract:
The Tribunal reaffirms that the loss of pension following the payment of the premium is adequately balanced by the benefits that can be acquired with the procurement of a surviving spouse’s pension for a number of years potentially widely exceeding the remaining duration of the retirement pension.
Keywords
pension; survivor's benefit
Consideration 16
Extract:
[I]t must be taken into account that a calculation methodology of premiums in a pension scheme is a technical matter, subject to change, that cannot be dealt with once and forever in a law; it is therefore lawful that the Rules do not directly provide for a methodology, but refer to administrative bodies responsible for adopting the methodology.
Keywords
pension; methodology
Consideration 23
Extract:
[I]t can be inferred from the Tribunal’s case law (see Judgment 3538, considerations 11 to 15) that, where the impugned decision is based on the opinion of an expert – as it is, in the present case, the Actuary – the complainants cannot merely submit their divergent analysis in order to refute that opinion. They should rather provide “evidence from authorities of equivalent weight”. Only such evidence might potentially be apt to demonstrate the possible flaws in the expert opinion underpinning the impugned decision. In the present case, the complainant’s arguments against the methodology adopted by the Actuary are not supported by any expert opinion of equivalent weight.
Reference(s)
Jugement(s) TAOIT: 3538
Keywords
expert inquiry; pension; actuarial valuation; methodology
Consideration 27
Extract:
Disparity of treatment is unlawful only where equal situations in fact and in law are treated in a different way. The principle of equality requires that persons in the same position in fact and in law must be treated equally (see Judgment 4423, consideration 15). The Tribunal’s case law states that allegations of discrimination and unequal treatment can lead to redress on condition that they are based on precise and proven facts, that establish that discrimination has occurred in the subject case (see Judgment 4238, consideration 5). Discrimination cannot be established unless it is proven that staff members in identical situations were treated differently (see Judgment 4101, consideration 9).
The situation of the beneficiaries of the Fund who get married, or remarried, after retirement, is not equivalent to the situation of beneficiaries who get married before retirement. Similarly, the situation of a person who marries a retired beneficiary of the Fund is not equivalent to the situation of a person who married a member of the Fund before their retirement.
Reference(s)
Jugement(s) TAOIT: 4101, 4238, 4423
Keywords
equal treatment; pension; discrimination
Consideration 29
Extract:
CERN argues that the complaint is an abuse of process as CERN itself had explained in a “tireless” manner the applicable legal framework to the complainant, who nevertheless continued to seek a favourable treatment on the ground of his professional achievements. CERN makes a counterclaim for costs in that respect. This counterclaim shall be dismissed as the complaint is not vexatious and frivolous.
Keywords
counterclaim
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