Judgment — ECLI:EU:F:2013:195
Date: 2013-12-11
Language of the case: French
Court formation: Full Court
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful

Summary 1. Actions brought by officials — Act adversely affecting an official — Definition — Proposal to transfer to the European Union scheme pension rights acquired before entering the service of the European Union — Included (Staff Regulations, Arts 90 and 91; Annex VIII, Art. 11(2)) 2. Officials — Pensions — Pension rights acquired before entering the service of the European Union — Transfer to the European Union scheme — Procedures — Determination of the capital representing the pension rights acquired under the national scheme — Competence of the national authorities — Calculation of the number of additional years of pensionable service to be credited under the European Union pension scheme — Powers of the institutions (Staff Regulations, Annex VIII, Art. 11(2)) 3. Acts of the institutions — Temporal application — Conversion coefficients for the purpose of calculating additional pensionable years — Application of new conversion coefficients on the date when the proposal concerning additional pensionable years is accepted 1. A proposal concerning additional pensionable years is an act adversely affecting an official who has made a request for transfer of his pension rights. Such a proposal is a unilateral act, separable from the procedural framework in which it is taken, adopted under circumscribed powers attributed ex lege to the institution, since it stems directly from the individual right which Article 11(2) of Annex VIII to the Staff Regulations confers expressly on officials and other servants when they enter the service of the European Union. (see paras 40, 41, 55) See: 11 December 2012, F‑122/10 Cocchi and Falcione v Commission, the subject of an appeal pending before the General Court, Case T‑103/13 P, paras 37 to 39 2. Article 11 of Annex VIII to the Staff Regulations draws a clear distinction between ‘transfer out’ in paragraph 1, on the one hand, and ‘transfer in’ in paragraph 2, on the other. The ‘actuarial equivalent’ referred to in Article 11(1) of Annex VIII to the Staff Regulations and the ‘updated capital value’ referred to in Article 11(2) are two separate legal concepts, each belonging to separate schemes. The ‘actuarial equivalent’, under the rules of the Staff Regulations, is an autonomous concept used within the European Union pension scheme. It is defined in Article 8 of Annex VIII to the Staff Regulations. ‘Updated capital value’ is not defined by the Staff Regulations, nor do they indicate the method for calculating it, because the calculation of this value and the procedure for the review of such calculations are matters falling exclusively within the competence of the national or international authorities concerned. With regard to the calculation by the competent national or international authorities, with a view to a ‘transfer in’, of the updated capital sum, that capital sum is determined on the basis of the relevant national law and according to the detailed rules laid down by that law or, in the case of an international organisation, by its own rules, and not on the basis of Article 8 of Annex VIII to the Staff Regulations and according to the interest rate laid down in that provision. As regards the calculation of the number of additional years of pensionable service to be credited under the European Union pension scheme, which is a separate calculation from that of the updated capital sum it should be noted that neither Article 11(2) of Annex VIII to the Staff Regulations concerning ‘transfers in’ nor any other provision of the Staff Regulations expressly lays down an obligation to apply to the calculation of the number of additional years of pensionable service to be credited under the European Union pension scheme the interest rate referred to in Article 8 of that annex. In the context of the implementation of Article 11(2) of Annex VIII to the Staff Regulations and, in particular, for the purpose of updating the conversion coefficients in the case of a ‘transfer in’, in the light of the new rate of 3.1% laid down in Article 8 of Annex VIII to the Staff Regulations, following the entry into force of Regulation No 1324/2008 adjusting, from 1 July 2008, the rate of contribution to the pension scheme of officials and other servants of the European Communities, it is incumbent on the institution, in accordance with Article 11(2), which refers to general implementing provisions for its implementation, and also in accordance with the principle of legal certainty, to amend the existing general implementing provisions and to draw up a new table of actuarial values. (see paras 77, 79-81, 88, 90, 94) See: 5 December 2013, C‑166/12 Časta, para. 24 18 December 2008, T‑90/07 P and T‑99/07 P Belgium and Commission v Genette, paras 56 and 57 and the case-law cited 3. According to a generally accepted principle and save as otherwise provided, a new rule applies immediately to situations yet to arise and to the future effects of situations which arose, but were not fully constituted, under the old rule. As regards the transfer of pension rights, in order for the situation of an official or staff member who has made a request to ‘transfer in’ to have been fully constituted under the actuarial values annexed to the general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations adopted by the Commission in 2004, it must be established that, by the end of the day preceding the date of entry into force of the new conversion coefficients laid down in the general implementing provisions adopted by the Commission in 2011, that is to say 31 March 2011 at the latest, the person concerned had accepted the proposal concerning additional pensionable years which had been made to him under the general implementing provisions of 2004. The application of the conversion coefficients laid down in Annex 1 to the 2011 general implementing provisions before the entry into force of those general implementing provisions on 1 April 2011, to officials or other staff members who had accepted a proposal concerning additional pensionable years before 1 April 2011, necessarily infringes the legitimate expectations of those officials or other staff members. (see paras 99, 101, 107) See: 13 June 2012, F‑31/10 Guittet v Commission, paras 47 and 66 and the case-law cited