# C_2004190EN.01001001.xml

| 24.7.2004 | EN | Official Journal of the European Union | C 190/10 |
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24.7.2004

EN

Official Journal of the European Union

C 190/10

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Appeal brought on 2 June 2004 by Marie-Luise Lindorfer against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union

(Case C-227/04 P)

(2004/C 190/17)

An appeal against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union was brought before the Court of Justice of the European Communities on 2 June 2004 by Marie-Luise Lindorfer, represented by G. Vandersanden and L. Levi.

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-204/01; |
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set aside the judgment of the Court of First Instance of the European Communities in Case T-204/01;

| — | consequently, uphold the applicant's claims at first instance and, accordingly; |
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consequently, uphold the applicant's claims at first instance and, accordingly;

| — | annul the defendant's decision of 3 November 2000 fixing at 5 years, 5 months and 8 days the number of years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria prior to her entry into the service of the European Communities and, in so far as necessary, annul the Council decision, dated 31 May 2001, to reject the applicant's complaint of 2 February 2001; |
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annul the defendant's decision of 3 November 2000 fixing at 5 years, 5 months and 8 days the number of years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria prior to her entry into the service of the European Communities and, in so far as necessary, annul the Council decision, dated 31 May 2001, to reject the applicant's complaint of 2 February 2001;

| — | order the defendant to fix again, on an amended legal basis devoid of all illegality, the years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria; |
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order the defendant to fix again, on an amended legal basis devoid of all illegality, the years of pensionable service to be taken into account for the applicant's Community pension following the transfer of her pension rights acquired in Austria;

| — | order the defendant to pay the costs incurred at first instance and in the appeal. |
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order the defendant to pay the costs incurred at first instance and in the appeal.

Pleas and main arguments

The Court of First Instance has infringed Article 141 EC and Article 10(4)(b) of the general implementing provisions (1) and breached the principle of non-discrimination and the duty to provide reasons.

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By considering that the Council was entitled to take account, in the conversion formula, of actuarial factors related to the age and sex of the official, the Court disregarded the principle of non-discrimination, in particular in so far as it concerns equal treatment between men and women. In connection with a formula for transferring pension rights acquired in one scheme – at national level – to the Community scheme, the Court endorsed the taking into consideration of a factor which makes a distinction between workers according to their sex and treats female workers less favourably and justified use of such a formula on budgetary grounds. Furthermore, the Court disregarded its obligation to provide a statement of reasons by failing to answer the applicant's argument seeking to demonstrate that the budget would not be put out of balance by account being taken of an actuarial factor when transferring the years-served to the Communities pensions scheme.

The Court did not take a position on the validity of the existence of two possible choices, each intended to implement Article 11(2) of Annex VIII to the Staff Regulations, albeit in different ways, which took account of the date of transfer of pension rights on the one hand or of the date on which the official was established. Moreover, by focusing only on the basic salary of the official upon retirement and by failing to examine, in addition, the number of years served, the Court failed to answer the applicant's argument and failed to fulfil its obligation to provide reasons.

The Court came to erroneous conclusions in law with respect to the facts, in particular those put forward as examples by the applicant. Even supposing that fluctuations in national currencies are the result of circumstances extraneous to the Communities, that in no way exonerates them from ensuring that they observe the principle of non-discrimination, in particular in so far as concerns their staff, nor from laying down, in accordance with that principle, the rules for transferring to the Community pensions scheme the pension rights acquired in a national scheme. That means, specifically, that the Council cannot use conversion rate formulas which do not observe the principle pf non-discrimination. However, it has been proved that that is the case. Indeed, there is no difference between the amounts transferred initially from a national pension scheme, in terms of the principle of non-discrimination, irrespective of whether they come from a ‘week-currency’ country or from a ‘strong-currency’ country. First, the Court found that the manner in which such amounts were treated varied according to the status of the country concerned and that transfers from ‘week-currency’ countries were treated more favourably. Finally, the Court failed to examine, and thus to show, in what way such differentiated treatment is objectively justified. The fact that it is the result of circumstances outwith the control of the Communities does not constitute such justification since it is the Council which decided that there were to be two approaches and it is again itself which decides to whom to apply them.

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(1)  Decision of the Council of 13 July 1992

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