JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

16 January 2007

Case F-92/05

**Emmanuel Genette**

**v**

**Commission of the European Communities**

(Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme – Withdrawal of the transfer request in order to rely on new more favourable provisions)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Genette seeks the annulment of the Commission’s decision of 25 January
2005 refusing, first, to allow him to withdraw his application, submitted in 2001, to transfer his pension rights acquired
under pension schemes in Belgium, and, secondly, to allow him to request a fresh transfer of those rights.

**Held:**The Commission’s decision of 25 January 2005 is annulled. The Commission is ordered to bear its own costs and to pay the costs
of Mr Genette. The Kingdom of Belgium is ordered to bear its own costs.

**Summary**

1.      *Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community
scheme*

*(Staff Regulations, Annex VIII, Art. 11( 2))*

2.      *Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community
scheme*

*(Staff Regulations, Arts 90 and 91; Annex VIII, Art. 11(2))*

3.      *Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community
scheme*

*(Staff Regulations, Arts 90 and 91; Annexes VIII, Art. 11(2) and XIII, Art. 26(3); Council Regulation No 723/2004)*

4.      *Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community
scheme*

*(Staff Regulations, Arts 90 and 91; Annex XIII, Art. 26(3); Council Regulation No 723/2004)*

5.      *Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community
scheme*

*(Staff Regulations, Annex VIII, Art. 11(2); Council Regulation No 723/2004)*

1.      A claim for annulment of a decision refusing to allow the applicant to withdraw his request to transfer to the Community scheme
pension rights which he acquired under a national pension scheme must be interpreted as seeking the annulment of the refusal
to withdraw the decision fixing the number of years credited to the Community pension scheme for those rights. The transfer
of pension rights is regarded as an operation entailing two successive, unilateral decisions taken, at the request of the
person concerned and in the exercise of limited discretion, first, by the body managing the national pension scheme, which
must calculate the rights acquired under that scheme, and second, by the Community institution, which must determine, on the
basis of those rights, the number of years of service to be credited to the Community pension scheme for the period of prior
service. Consequently, the conditions in which the transfer of pension rights acquired under a national scheme may be rescinded
are those in which the withdrawal of the abovementioned decisions constituting the transfer operation may be obtained.

(see paras 42, 45-47, 50)

2.      The communication by the administration to an official who has requested the transfer of pension rights acquired before he
entered the service of the Communities of a note informing him of the number of years to be credited to the Community scheme
cannot be regarded as constituting a proposed agreement or contract addressed to him. It constitutes a draft unilateral decision
drawn up by the administration in the exercise of a limited discretion at the official’s request, which in practical terms
does not become a decision of the institution and which enters into effect only following confirmation of the transfer request
by the person concerned. The atypical manner in which this act is formulated and enters into force, subject to the agreement
of the official concerned, does not alter its unilateral nature. Since it is a unilateral decision, it cannot be rendered
definitive by the express agreement of the person concerned, which consequently cannot be relied on against him. Unilateral
decisions of the institutions concerning officials become definitive and thus immune to judicial challenge as a result of
the expiry of the periods for lodging complaints and appeals laid down in Articles 90 and 91 of the Staff Regulations.

(see paras 55-56, 104, 109)

3.      The adoption of new legislation constitutes a new substantial fact, which also affects officials not falling within its field
of application if that legislation entails unjustified inequalities of treatment between those officials and persons benefiting
from the new rules. For an official who had obtained the transfer of pension rights acquired in Belgium under the Belgian
Law of 21 May 1991 establishing certain links between Belgian pension schemes and those of institutions governed by public
international law, such a new fact resulted from the successive entry into force of the Belgian Law of 10 February 2003 regulating
the transfer of pension rights between Belgian pension schemes and those of institutions governed by public international
law, and Article 26(3) of Annex XIII to the Staff Regulations, introduced by Regulation No 723/2004 amending the Staff Regulations
of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities.

First, the provisions of Article 26(3) of Annex XIII to the Staff Regulations allow officials who have not yet requested or
obtained the transfer of pension rights acquired before they entered the service of the Communities to apply for those rights
to be transferred to the Community pension scheme under the conditions provided for in the Staff Regulations. In particular,
those provisions allow officials who have previously acquired pension rights in Belgium and who have not requested or obtained,
at the time of their establishment, the transfer of those rights to the Community scheme under the conditions set out in the
1991 Belgian law, to have the pension rights transferred under the more favourable conditions of the 2003 Belgian law. An
official who has obtained the transfer of his pension rights acquired in Belgium pursuant to the 1991 Belgian law, but who
has not benefited from a transfer of those pension rights within the meaning of the Staff Regulations and under the conditions
provided for therein, is, under the provisions of the Staff Regulations, in a situation comparable to that of the officials
referred to in Article 26(3) of Annex XIII to the Staff Regulations.

Secondly, there are doubts as to whether the difference in treatment between that official and the categories of officials
referred to in Article 26(3) of Annex XIII to the Staff Regulations is lawful as regards the principles of legal certainty
and legitimate expectations. The difference in treatment concerned could not have been foreseen when, at the time of their
establishment, the officials in question decided whether or not to apply for a transfer. The principles of the protection
of legitimate expectations and legal certainty prevent an official from being excluded from benefiting from more favourable
legislation on the basis of a choice whose consequences were not foreseeable when it was made.

(see paras 69-70, 72-73, 79, 83-84)

See:

9/81 *Williams* v *Court of Auditors* [1982] ECR 3301, para. 14; C‐63/93 *Duff and Others* [1996] ECR I‐569, para. 20; C-107/97 *Rombi and Arkopharma* [2000] ECR I‐3367, para. 66; C-389/98 P *Gevaert* v *Commission* [2001] ECR I‐65, para. 49

T-182/96 *Partex* v *Commission* [1999] ECR II‐2673, para. 191

4.      Since the new substantial fact justifying the request to review the decisions taken in 2002 by the appointing authority in
connection with the transfer to the Community scheme of pension rights acquired by an official under Belgian legislation resulted
from the successive entry into force of a Belgian law of 10 February 2003 and of Article 26(3) of Annex XIII to the Staff
Regulations, the reasonable period during which the official concerned was justified in relying on that new fact did not begin
to run until that article of the Staff Regulations came into force, that is to say on 1 May 2004.

The diligence of the official concerned must be assessed taking account of the fact that the complexity of the rules for calculating
the pension rights transferred makes it difficult for an official to determine himself whether his legal situation is affected
favourably or not by the new Belgian legislation. Furthermore, it should be observed that the applicant submitted his request
for review of the decisions referred to earlier within the six months period which, under Article 26(3) of Annex XIII of the
Staff Regulations, the Community legislature granted to officials to request the transfer of their pension rights if they
had not already done so.

(see paras 88, 90-91)

5.      Neither the provisions of Article 11(2) of Annex VIII to the Staff Regulations, both in the version before Regulation No 723/2004
amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants
of the European Communities came into force, and in the version that resulted from that Regulation, nor any other provision
of the Staff Regulations can be interpreted as precluding the withdrawal of a decision to transfer pension rights acquired
before entry into the service of the Communities, taken before Regulation No 723/2004 came into force.

First of all, although the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before
Regulation No 723/2004 came into force permitted an official to request the transfer of his pension rights only during the
period of his establishment, they did not, on the other hand, impose any restriction on the possibility of requesting the
withdrawal of a transfer of pension rights.

Second, if such a decision were withdrawn, a new transfer request would, where appropriate, be submitted within the new period
of 10 years and on the conditions laid down in Article 11(2) of Annex VIII to the version of the Staff Regulations resulting
from Regulation No 723/2004.

Third, the fact that the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from
Regulation No 723/2004 authorise an official to avail himself only once of the arrangement to request the transfer of previously
acquired pension rights cannot be adduced to claim that those provisions prohibit the withdrawal of a transfer request. First,
the possibility of submitting a second transfer request must not be confused with the possibility of withdrawing the first.
Secondly, the abovementioned provisions, which came into effect on 1 May 2004, do not apply to a transfer request submitted
before that date and consequently, if that request is withdrawn, cannot be an impediment to the author of the request submitting
a new one on the conditions now in force.

In the absence of a special provision of Community law, the conditions for withdrawing a decision to transfer pension rights
taken before Regulation No 723/2004 came into force are the general conditions for withdrawing individual decisions creating
rights. Such decisions cannot be rescinded unilaterally by their author as long as they are lawful. In such a case, the need
to safeguard confidence in the stability of the situation thus created prevents the administration from reversing its decision.

However, such a prohibition, which is intended to protect the rights of the beneficiary, cannot, by reason of its very purpose,
be relied on against him. At his request, the administrative authority that took the decision creating rights may revoke it
in order to replace it with a decision more favourable to the person making the request, on condition that the withdrawal
does not harm the rights of third parties. Although the withdrawal of an administrative act is in principle permitted, the
requirements of the principle of legal certainty must be strictly observed.

In that respect, the withdrawal of a decision to transfer pension rights acquired in Belgium under the Belgian Law of 21 May
1991 establishing certain links between Belgian pension schemes and those of institutions governed by public international
law, is not likely to affect the rights of the Belgian pension schemes.

Firstly, the mechanism provided for in that law for subrogating the Community institution to which the official is assigned
did not alter the rights or obligations of those schemes at the time of the transfer, since it was not accompanied by the
payment of any sum by them to the Community pension scheme; the schemes remained liable for the official’s pension rights,
and their obligation consisted, as previously, in the payment of the corresponding pension in monthly instalments from the
date on which the official began to draw his Community pension. The only change concerns the relationship between the official
and the institution, which awards him in the Community scheme the actuarial equivalent of his Belgian pension rights and,
as a counterpart, is subrogated to the pension rights which the official acquired under the Belgian pension schemes. Since
the rights under the Belgian pension schemes are not affected by the transfer of pension rights under the subrogation mechanism,
they are also not likely to be affected by the withdrawal of the decisions taken in order to affect that transfer.

Secondly, Article 9 of the 1991 Belgian law still allowed the official to withdraw his transfer request, provided subrogation
had not yet taken effect, subject to the sole condition of obtaining his institution’s agreement,.

(see paras 120-122, 124-126, 128-130)

See:

7/56, 3/57 to 7/57 *Algera and Others* v *Common Assembly of the ECSC* [1957] ECR 39, 55 and 56