ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(First Chamber)
1 August 2016
Case F‑28/15
Anne-Claire Simon
v
European Commission
(Civil service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Transfer to the EU pension scheme of pension rights acquired under other schemes — Decision crediting additional pensionable years applying the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations — Article 81 of the Rules of Procedure — Action manifestly unfounded)
Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Ms Anne-Claire Simon seeks annulment of the decision of the European Commission crediting her with additional pensionable years under the EU pension scheme, following the transfer of pension rights which she acquired prior to her entry into the service of the Union.
Held:      The action is dismissed as manifestly unfounded. The parties shall each bear their own costs.
Summary
1.      Acts of the institutions — Temporal application — Immediate application of the new rule to the future effects of a situation which arose under the old rule — Adoption of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Application to the transfer of acquired pension rights applied for before the adoption of the new rule but effected after its entry into force — Infringement of acquired rights and of the principle of legitimate expectations — None
(Staff Regulations, Annex VIII, Art. 11(2))
2.      Officials — Pensions — Pension rights acquired before entry into the service of the EU — Transfer to the EU scheme — Adoption of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Difference in treatment between officials who have had the capital representing their pension rights transferred to the EU scheme before and after the entry into force of those provisions, respectively — Breach of the principle of equal treatment — None
(Staff Regulations, Annex VIII, Art. 11(2))
1.      The application of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations, in respect of a transfer to the EU pension scheme of pension rights acquired under another pension scheme, requested prior to the adoption of those provisions but carried out after they had entered into force, is not contrary to Article 11(2) of Annex VIII to the Staff Regulations.
In this regard, 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. That is so except for situations originating and becoming definitive under the previous rule, which create acquired rights. A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment. However, that is not the case when the event creating the right did not take place under the legislation that has been amended.
In the first place, Article 11(2) of Annex VIII to the Staff Regulations does not prevent such immediate application of new general implementing provisions.
Secondly, neither the notification, to an official or other member of staff who has submitted an application for a transfer to the EU pension scheme of pension rights acquired under another pension scheme, of a proposal concerning additional pensionable years, nor, far less, the mere submission of such an application, alters the legal situation of the person concerned or produces binding legal effects. Accordingly, there were no acquired rights held by an official or other member of staff which were capable of being infringed by the application of the new provisions.
Moreover, the right of an official or other member of staff to be credited with pensionable years is not fully constituted until the capital sum representing his rights acquired under another scheme has been transferred to the EU pension scheme.
Furthermore, individuals cannot rely on the principle of protection of legitimate expectations in order to oppose the application of a new legislative provision, especially in a sphere in which the legislature enjoys a considerable degree of latitude.
(see paras 25-28, 30, 36)
See:
Judgment of 13 October 2015 in Commission v Verile and Gjergji, T-104/14 P, EU:T:2015:776, paras 151 to 154 and 170 and the case-law cited
2.      In adopting new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations, which give rise to a difference in the treatment of officials who have had the capital sum representing their pension rights acquired under another scheme transferred to the EU scheme before and after the entry into force of those provisions, respectively — an institution does not infringe the principle of equal treatment, since the differentiated treatment affects officials who do not form part of a single category.
The officials in respect of whom the capital sum representing their pension rights acquired under another scheme had not been transferred to the EU pension scheme when the new provisions came into force are not in the same legal situation as officials whose pension rights acquired before their entry into service had already, prior to that date, been transferred, in the form of a capital sum, to the EU pension scheme and in respect of whom a decision crediting additional pensionable years under the latter scheme had already been adopted. The first set of officials still had pension rights under another scheme while, for the second set, the transfer of the capital sum resulting in the extinguishment of those rights and the corresponding crediting of additional pensionable years under the EU pension scheme had already taken place.
Moreover, such a difference in treatment is based on an objective factor independent of the will of the institution concerned, namely, the speed with which the external pension scheme in question processed the application for the transfer of capital in question.
(see para. 37)
See:
Judgment of 13 October 2015 in Commission v Verile and Gjergji, T-104/14 P, EU:T:2015:776, paras 177 to 179