Judgment — ECLI:EU:T:2015:777
Date: 2015-10-13
Language of the case: French
Court formation: Appeals Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases;Action for damages;Appeal - successful

Summary 1. Actions brought by officials — Act adversely affecting an official — Definition — Proposal concerning additional years of pensionable service with a view to transferring to the EU scheme pension rights acquired prior to entry into service with the EU — Not included — Decision to credit years of pensionable service adopted following transfer of the capital representing acquired pension rights — Included (Staff Regulations, Art. 91(1) and Annex VIII, Art. 11(2)) 2. Actions brought by officials — Jurisdiction of the EU judicature — Advisory opinion — Not included (Art. 270 TFEU; Staff Regulations, Art. 91(1)) 3. Officials — Pensions — Pension rights acquired prior to entry into service with the EU — Transfer to the EU scheme — Right of the person concerned to transfer his acquired pension rights — Proposal concerning additional years of pensionable service not constituting an act having an adverse effect — No effect (Staff Regulations, Annex VIII, Art. 11(2)) 4. Actions brought by officials — Act adversely affecting an official — Definition — Proposal to reimburse part of the capital representing acquired pension rights transferred to the EU scheme — Not included (Staff Regulations, Art. 91(1) and Annex VIII, Art. 11(2)) 1. A proposal concerning additional years of pensionable service, sent to an official with a view to a transfer to the European Union pension scheme of pension rights acquired under another scheme, does not produce binding legal effects directly and immediately affecting the legal situation of the person concerned by bringing about a distinct change in his legal position. Accordingly, it does not constitute an act having adverse effect, within the meaning of Article 91(1) of the Staff Regulations. Under Article 11(2) of Annex VIII to the Staff Regulations, actual determination of the number of years of pensionable service accredited to an official who has requested a transfer, to the EU pension scheme, of his pension rights formerly acquired under another scheme must necessarily take place after the transfer has actually taken place, ‘on the basis of the capital transferred’. It cannot therefore be considered that a proposal to calculate years of pensionable service which, by its very nature, is communicated prior to that transfer can make such a determination. The number of years of pensionable service to be credited results from application of the method of conversion into years of pensionable service of the capital representing the former rights, laid down in the general implementing provisions adopted by the institution in question pursuant to Article 11(2) of Annex VIII to the Staff Regulations. It is the decision adopted once the transfer of the capital representing the pension rights acquired by the person concerned before entering the service has taken place which constitutes an act having adverse effect and which may form the subject of an action for annulment under Article 91(1) of the Staff Regulations. (see paras 60, 62, 65, 66) 2. Article 270 TFEU does not confer on the EU judicature jurisdiction to give advisory opinions, only jurisdiction to adjudicate in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations. It is the Staff Regulations which provide, in Article 91(1), that an action for annulment may be brought only against an act having an adverse effect. If the act against which the action is brought does not affect the applicant adversely the action is inadmissible. Any interest that person may have in the disposal of the substance of the issue raised in his action is irrelevant in that regard. (see paras 70-71) 3. Accepting that a proposal to calculate years of pensionable service with a view to a transfer to the EU scheme of pension rights acquired before entry into service with the European Union does not constitute an act having an adverse effect does not mean that the official concerned is deprived of his entitlement to transfer under Article 11(2) of Annex VIII to the Staff Regulations. It means simply that the official must choose whether or not he wishes to exercise his right under that provision, without first being able to ask the EU Court to take a position with regard to interpretation and application in his case of that provision and of the general implementing provisions for its application. (see para. 85) 4. In the context of a procedure for transferring pension rights, laid down in Article 11(2) of Annex VIII to the Staff Regulations, a proposal to reimburse a part of the capital representing pension rights acquired under another scheme, transferred to the EU pension scheme, is not an act having an adverse effect in that it envisages reimbursing the surplus of the capital to be transferred to the person concerned. Any surplus that is reimbursable is based on the number of years of pensionable service that are credited to the person concerned and on the rate for the conversion of capital into years of pensionable service. (see para. 100)