Judgment — ECLI:EU:F:2007:10
Date: 2007-01-16
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Equal treatment and non-discrimination;General;Duty to have regard for the interests of officials;Transfer to the EU scheme of rights acquired under a national scheme;Obligation to assist officials
Procedure: Staff cases - unfounded;Action for damages - unfounded

Summary Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme (Staff Regulations, Art. 24(1); Annexes VIII, Art. 11(2), and XIII, Art. 26(3); Council Regulation No 723/2004) An institution may not reject, on the ground that it is directed against one of its acts, a request for assistance under Article 24 of the Staff Regulations, by which an official seeks its technical and financial assistance in order to ascertain, first, whether it is in his personal interest to apply for a new transfer of his pension rights acquired under a Belgian pension scheme before he entered the service of the Communities, under the generally more favourable conditions introduced by new legislation in that Member State, and then, if appropriate, to obtain that new transfer, where that institution has not expressly refused to withdraw the initial transfer decision. It is true that the transfer is regarded as an operation entailing two decisions taken successively, at the request of the person concerned, by the national body managing the pension scheme, which calculates the rights acquired, and then by the Community institution, which determines, in the light of those rights, how many years of service should be credited to the Community pension scheme for the rights transferred. However, the fact that the achievement of the objective for which assistance was requested may require the withdrawal of an act of the institution does not necessarily mean, particularly if the institution is in favour of that withdrawal, that the assistance is being requested against an act of the institution, thereby excluding it from the scope of Article 24 of the Staff Regulations, which provides for officials to be defended against acts of third parties and not against acts of the institution itself. An application for withdrawal may only be regarded as directed against the act whose withdrawal is sought if the institution in any event refuses to undertake that withdrawal. The institution also cannot reject such a request on the ground that the new Belgian legislation has not been found to be incompatible with Community law. The institution’s obligation to provide assistance is not subject to the condition that the courts must first have established the unlawfulness of the acts which have led the official to request assistance. Such a condition would, moreover, conflict with the very purpose of requesting assistance in the frequent cases where the request is made in order to have those acts recognised as unlawful through legal proceedings assisted by the institution, the term ‘acts’ referring to facts or measures which are suspected, but have not been ruled, to be unlawful. The obligation to provide assistance applies solely against acts which may reasonably be regarded as harmful to the rights of officials; the Community judicature must thus ascertain whether the official seeking the institution’s protection really is the subject of the harm he alleges, but it is sufficient for the official to provide prima facie evidence of the reality of that harm. On the other hand, the institution is perfectly entitled to consider that the applicant’s rights have not suffered any harm warranting its assistance. The difference in treatment between officials who have obtained the transfer of their pension rights before or after the new Belgian legislation came into force is not, of itself, discriminatory, otherwise any amendment of the law would be rendered impossible. Even if the applicant were the subject of discrimination, the unjustified difference in treatment does not result from the new legislation in itself, but from the combination of the effects of that legislation and of 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, which, as a transitional measure which may not be regarded as the act of a third party within the meaning of Article 24 of the Staff Regulations, granted the option of submitting a transfer request or a new transfer request, within six months of Regulation No 723/2004 entering into force, to three categories of officials who, because their request had been submitted late or because they had chosen not to request a transfer or not to confirm their request, had not obtained the transfer of their pension rights. Furthermore, in such a context, the official concerned cannot reasonably invoke the institution’s duty to have regard for his welfare against the decision refusing his request, since that duty cannot compel the institution to disregard the conditions to which its assistance is subject under the Staff Regulations. He is also not justified in invoking infringement of the principle pacta sunt servanda, since he does not refer to any contract or agreement which the institution has not observed, or of the rule patere legem quam ipse fecisti, since the Staff Regulations are rules laid down not by an institution as an appointing authority, but by the Community legislature. Lastly, the plea put forward against the refusal of the request, that the changes to the Belgian legislation have created discrimination between Community officials who have transferred pension rights acquired in Belgium, depending on whether they applied for those rights to be transferred before or after the new legislation came into force, has no bearing on the issue. The plea of infringement of the principle of equal treatment would be relevant only if it was alleged that the institution had given its assistance to other officials and servants in the same situation as the applicant. (see paras 35, 36, 38-41, 43, 44, 51, 52, 54-56, 59, 63, 70, 80, 96-97) See: T-81/96 Apostolidis and Others v Commission [1997] ECR-SC I‑A‑207 and II‑607, para. 90 and the case-law cited therein; T-213/99 Verheyden v Commission [2000] ECR-SC I‑A‑297 and II‑1355, para. 28; T-136/03 Schochaert v Council [2004] ECR-SC I‑A‑215 and II‑957, para. 49 F-92/05 Genette v Commission [2007] ECR-SC I-A-0000 and II-0000