61982C0118
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 7 JULY 1983 (
1
)
Mr President,
Members of the Court,
The present staff case is concerned with the question whether Article 11 (2) of Annex VIII to the Staff Regulations, which has frequently been the subject of the case-law of the Court, can be appropriately applied in the computation of years of pensionable service of establishment staff who were already in the employment of the Community before the entry into force of Council Regulation (ECSC, EEC, Euratom) No 2615/76 of 21 October 1976 amending Regulation No 259/68 as regards the Conditions of Employment of Other Servants of the European Communities (Official Journal L 299, 29.10.1976, p. 1).
That provision gives the official who enters the service of the Communities after being otherwise employed the right to pay to the Communities the actuarial equivalent of retirement pension rights acquired by him or the sums repaid to him from a pension fund at the time of his leaving his previous employment. In such a case the institution in which the official serves determines, taking into account his grade on establishment, the number of years of pensionable service with which he is to be credited under its own scheme in respect of the former employment, on the basis of the amount of the actuarial equivalent or sums repaid as aforesaid.
The Commission considered voluntary application of that provision by analogy to be appropriate because establishment staff who made use of the transitional provision in the said regulation had become temporary staff under the new Article 2 (d) inserted in the Conditions of Employment of Other Servants of the European Communities, and thus from then on were covered by the Community social security scheme in accordance with Article 39 (2) of the Conditions of Employment of Other Servants. As regards the requisite minimum period of 10 years' service laid down in Article 77 (1) of the Staff Regulations, the first paragraph of Article 2 (4) of Regulation No 2615/76 provides that previous service shall be taken into account. However, the second paragraph of Article 2 (4) provides that “only the number of years of service completed by staff as temporary staff within the meaning of Article 2 (d)” is to be taken into account for the purpose of calculating the years of pensionable service within the meaning of Article 2 of Annex VIII to the Staff Regulations.
Since the regulation in question contains no indication as to how the rights acquired under the national social security scheme are to be dealt with, the Commission allowed establishment staff to choose whether to exercise the option provided for in Article 42 of the Conditions of Employment of Other Servants and to request the Commission to effect any payments required to constitute or maintain national pension rights, or to opt for the solution contained in Article 11 (2) of Annex VIII to the Staff Regulations. In particular the temporary staff of the Joint Research Centre at Ispra who had previously been affiliated to the Italian social security scheme were once again informed on 13 July 1978 (a similar notice had already appeared in Staff Courier No 391 of 14 June 1978) that as the result of an agreement between the Istituto Nazionale della Previdenza Sociale it was now possible to transfer their pension rights to the Community pension scheme. To prevent those concerned from having to take a decision without precise knowledge of the effects they were informed inter alia in a circular of 10 April 1979 that they might postpone their final decision until they were told precisely the number of pensionable years of service which would be taken into account in computing their Community pension rights.
In the course of June and July 1981 the six applicants affected by that were informed of the precise computation of the years of pensionable service to be credited to them in accordance with Article 11 (2) of Annex VIII to the Staff Regulations. When the applicants were requested to exercise their option within a period of 30 days they opted, subject to their right to challenge the computation of their years of pensionable service, for the transfer of their pension rights to the Community pension fund.
In September and October 1981 they lodged a complaint with the Commission pursuant to Article 90 (2) of the Staff Regulations in which they objected that in calculating their pension rights not all their years of service as establishment staff had been taken into account. Since they did not receive an answer within the period of four months laid down in Article 90 they brought actions on 5 and 6 April 1982 in which they asked the Court to annul the decision whereby the Commission had only partially taken into account for the purposes of the Community retirement pension the length of service completed by the applicants prior to their appointment as temporary staff and to declare that the Commission must recognize for the aforesaid purpose the entire period of service completed by the applicants as its employees.
My opinion on those applications is as follows.
I — Admissibility of the applications
The Commission considers the applications inadmissible as being out of time. In its opinion the notification as long ago as the middle of 1978 by the appointing authority to the effect that Article 11 (2) of Annex VIII to the Staff Regualtions would be applied to their cases by analogy was to be regarded as a measure adversely affecting them within the meaning of Article 90 (2) of the Staff Regulations. Then notification of the final computation on which the applicants based their complaint was merely the logical sequence and application of the measure adopted previously and did not affect the applicants' rights under the Staff Regualtions.
I concur with the applicants in rejecting that contention. It must be remembered that the rights of action given by Articles 90 and 91 of the Staff Regulations are intended to secure review by the Court of all acts and omissions of the appointing authority which might adversely affect the rights of officials and other employees of the Community under the Staff Regulations. Quite apart from the question as to the date on which the applicants became aware of the Commission's decision to apply Article 11 (2) of Annex VIII to the Staff Regulations to establishment staff, and apart from the question whether such a decision is at all capable of being of direct and individual concern to the applicants, the more correct view must be that in any event the notification of the actual number of years of pensionable service must be treated as of direct and individual concern to the applicants in respect of which they might make complaint, and not simply as an ancillary implementing measure. Of importance in this respect, as the Commission itself admitted, is the fact that the individual computation to be made under Article 11 (2) is a complicated operation and its result is not necessarily forseeable even by experts. In consequence it can scarcely be maintained that those concerned ought to have recognized that the Commission's decision to apply Article 11 (2) at their request was a measure adversely affecting them and ought to have lodged a complaint within a period starting from then. On the contrary, only when the applicants had opted for the transaction provided for in Article 11 (2) and the number of pensionable years of service had been precisely determined could they recognize the disadvantages of such a transaction and only then were they adversely affected by it. Consequently, the period for lodging complaints provided for in Article 90 (2) could begin only on the day of notification of those computations and thus the complaints must be regarded as made within time and the actions as admissible.
I should say in conclusion that despite the Commission's view to the contrary that result is not affected by the judgment of the Court in the Hirschberg case, (
2
) which was concerned with the admissibility of an action concerned exclusively with relationships within the service, particularly administrative organization and working conditions, and not measures adversely affecting the rights of officials and other staff of the Community under the Staff Regulations. The fact that the computation of pensionable years of service affects those rights scarcely needs to be emphasized.
II — The substance of the applications
The central issue here is whether the defendant is obliged to treat the applicants' employment as establishment staff before the entry into force of Regulation No 2615/76 as pensionable years of service.
1.
Briefly, the applicants take the view that the defendant has infringed the Treaty and the provisions adopted for its implementation by applying Article 11 (2) of Annex VIII to the Staff Regulations, which is concerned with other circumstances, to their case by analogy. That provision assumes a transfer from employment with a national or international organization or undertaking to the service of the Community, whereas when the conditions of employment of establishment staff were repealed and replaced by the conditions of employment for temporary staff by Regulation No 2615/76 the applicants were already employed by the Commission. Even if the existence of a lacuna in the law regarding the computation of the time spent as establishment staff before the entry into force of Regulation No 2615/76 is admitted it ought to have been filled, in the view of the applicants, not by applying Article 11 (2) by analogy but by regarding all the years of service spent previously with the Community as pensionable years.
That there is no such lacuna is shown, however, in my view by the express wording of the second paragraph of Article 2 (4) of Regulation No 2615/76, which clearly specifies that in calculating the years of pensionable service of establishment staff who are in service on the date of the entry into force of the regulation “only the number of years of service completed by staff as temporary staff within the meaning of Article 2 (d) shall be taken into account”. That transitional provision obviously makes clear the legal position as it would be even without it on the basis of the Community pension scheme. In that respect it must be remembered that according to Article 2 of the pension scheme laid down in Annex VIII to the Staff Regulations a retirement pension is payable on the basis of the total number of years of pensionable service acquired by an official. For the purpose of calculating such years of pensionable service Article 3 (c) provides that account is to be taken of periods of service in any other capacity in accordance with the Conditions of Employment of Other Servants of the Communities, with the express proviso that the servant has paid his share of contributions to the Community pension scheme in respect of such periods of service. According to the second subparagraph of Article 40 and Article 41 of the Conditions of Employment of Other Servants, to which Article 3 of Annex VIII refers, only periods of service as temporary staff of the Communities are to be taken into account for the purpose of calculating years of pensionable service as provided for in Annex VIII to the Staff Regulations, and as regards the funding of the social security scheme Article 83 of the Staff Regulations applies by analogy. Since establishment staff were not temporary staff prior to the entry into force of Regulation No 2615/76, it follows that Article 3 (c) of Annex VIII to the Staff Regulations is not applicable to them.
That is supported in particular by the basic principle set out in Article 83 of the Staff Regulations which, as the Court has already found in the Landra case, (
3
) by providing that “benefits paid under this pension scheme shall be charged to the budget of the Communities” and that “officials shall contribute one third of the cost of financing this pension scheme”, establishes a close correlation between the acquisition of pension rights and the financing by the individual concerned of the fund constituted for the payment of the pension. Therefore, as the Court stressed in that case, contributions to a scheme outside the Communities cannot automatically give rise to the acquisition of Community pension rights unless a clear provision to the contrary exists.
As regards establishment staff who prior to their being made temporary staff were affiliated to the Italian social security scheme, not only is there no clear provision to the contrary but the transitional provisions in the second paragraph of Article 2 (4) of Regulation No 2615/76 direct expressis verbis that only the number of years of service completed by staff as temporary staff is to be taken into account.
Furthermore, since that provision is in accord with the principles on which the Community social security scheme is based, I cannot agree with the applicants when they claim that it ought not to be applied because it is incompatible with superior rules of Community law. Moreover, the allegation that Regulation No 2615/76 is unlawful was made only in the reply and must be regarded as a new issue raised out of time and as such to be rejected as inadmissible.
Since that provision expressly forbids the Commission to recognize the applicants' years of service as establishment staff before the entry into force of Regulation No 2615/76, for which contributions were paid to the Italian social security scheme, as pensionable years of service within the meaning of Article 2 of Annex VIII to the Staff Regulations, it follows that the application by analogy of Article 11 (2) of the Community pension scheme to the applicants can similarly not be regarded as wrongful. In that respect it is also significant that the applicants had the choice with, it is agreed, knowledge of all the relevant computations between application of Article 42 of the Conditions of Employment of Other Servants or application by analogy of Article 11 (2) of the Community pension scheme or application of a combination of both provisions, and with knowledge of all the relevant computations and weighing the advantages and disadvantages might, but were not bound to, opt for the possibility provided by Article 11 (2).
As the Court stated in Case 137/80 (
4
) Article 11 (2), which is intended to enable the Community scheme to be coordinated with the national schemes, seeks to ensure that Community officials may retain rights which they have acquired in their own State and to ensure that at the end of their careers account may be taken thereof by the Community scheme. As the Court held in the Landra case, (
5
) in view of that purpose there would be no justification “for refusing to grant this facility to officials who, from before their appointment, have had certain links with the Communities, when they are applied to officials who are recruited directly from outside and who are clearly referred to by the provision in question.”
In this connection I cannot agree with the applicants, furthermore, when they claim that that finding, which relates to the coordination of two sets of pension rights acquired in different posts, is not applicable to their case in which employment has been continuous and the duties have not changed. In the light of that, they maintain, the principles on which the judgments in Deshormes (
6
) and Toledano Laredo (
7
) were based should be applied also in their case.
Those cases were concerned, as the present case is, with the question whether years of service completed by the applicants in the Community originally as auxiliary staff should be taken into account in calculating pension rights. However, the special feature of those cases lay in the fact that although those concerned were engaged as auxiliary staff within the meaning of Article 3 of the Conditions of Employment of Other Servants, before their appointment as officials or employment as temporary staff they had done work corresponding to the posts described in Article 2 (a) and (b) of the Conditions of Employment. The Court took the fact that the applicants in those cases performed permanent public service duties for which a post was included in the list of posts as justification for placing them with regard to their years of pensionable service in spite of their contracts as auxiliary staff in the position in which they would have been had they been temporary staff from the outset. There can be no question of that in the present case. The status of the applicants before their appointment as temporary staff within the meaning of the new Article 2 (d) of the Conditions of Employment corresponded, on the contrary, exactly to that provided for in the old version of the Conditions of Employment for staff paid from appropriations in the research and investment budget. It was expressly provided, however, that such staff had no rights under the Community social security scheme, and therefore the judgments cited by the applicants are not relevant to the present case. Since the applicants in accordance with the Community regulations applicable at the time were affiliated to a national social security scheme and paid no contributions to the Community social security scheme, in accordance with the judgment in the Landra case (
8
) there can be no objection to the application by analogy of Article 11 (2) of the Community social security scheme.
The fact that, as the applicants say, the contributions to the Italian social security scheme, in relation to salary, were not lower but to some extent even higher than the contributions to the Community social security scheme is no reason for not making such an application. Their argument overlooks the fact that coordinating the national social security systems with the Community social security system may involve not so much the contributions which are paid as the capital represented by the pension rights which those concerned have acquired under the national system at the time of transfer. The actuarial equivalent of acquired pension rights, with which the present case is solely concerned, is, as inter alia the judgment in the Bodson case (
9
) shows, the result of a complicated computation done at the national level. In order to reflect the close correlation between the acquisition of Community pension rights and the financing of the fund built up to pay the pension, the resulting sum must then be translated into pensionable years of service with the consequence that because of the different circumstances which are taken into account in the computation the results may naturally differ from case to case.
With regard to the calculation of their years of pensionable service the applicants further put forward in the reply the alternative submission that the number of years of service to be taken into account for the purposes of Article 11 (2) of Annex VIII to the Staff Regulations in accordance with the general implementing provisions for that article, in particular Article 3, has been calculated on the basis of their annual basic salary expressed in Belgian francs with the unlawful application of a weighting of 157.8 and thus considerably reduced.
I agree with the Commission that that objection, which is directed against the method of calculating the years of pensionable service and not against the application by analogy of Article 11 (2), was raised neither in the complaint made pursuant to Article 90 (2) of the Staff Regulations nor in the action. It is therefore to be regarded as a new issue raised out of time and thus must be rejected as inadmissible pursuant to Article 42 of the Rules Procedure. Incidentally I consider the objection to be unfounded in any case having regard in particular to the judgment in Benassi, (
10
) which was likewise concerned with the definition of the basic salary for the purpose of applying Article 11 (2) of Annex VIII to the Staff Regulations.
2.
The applicants further submit that the contested decision breaches the principle of non-discrimination for staff who have performed the same services in the same institution as officials established from the outset.
On that I must observe briefly that in order to reflect the differences in duties the employment law of the Communities provides different regulations for each kind of staff. According to the established case-law of the Court such a distinction is objectively justified by the differences in the duties and therefore does not infringe the principle of equal treatment. In that respect no objection can be made on principle if the status of establishment staff paid from the research and investment budget differed, like their duties, from that of officials and other servants of the Communities. If the Council in the exercise of its discretion has improved the position of establishment staff by bringing them into the Community social security scheme, no entitlement to a retroactive improvement can be based on that in reliance on the principle of equal treatment. Not least of all, as the defendant rightly observed, it would be incompatible with the underlying principle of the Community pension scheme that there must be a close correlation between contributions and pension for the years of service for which contributions have been paid to the Italian social security scheme to be automatically taken into account as pensionable years of service within the meaning of Article 2 of Annex VIII to the Staff Regulations without regard to the actuarial equivalent.
3.
Thus the third claim is also unfounded whereby the applicants claim that the application of Article 11 (2) of Annex VIII to the Staff Regulations is both a misuse of powers since the provision relates to a case which is different in both form and substance, and unfair because it puts service in the Community on the same footing as employment outside it.
III —
On those grounds, therefore, I propose that the actions brought against the Commission should be dismissed as unfounded and that the parties should bear their own costs pursuant to Article 70 of the Rules of Procedure.
(
1
)	Translated from the German.
(
2
)	Judgment of 14 July 1976 in Case 129/75, Lydia Hirschherg (née Nemirovski) v Commission of the European Communities [1976] ECR 1259.
(
3
)	Judgment of 1 April 1971 in Case 54/70, Luigi Landra v Commission of the European Communities [1971] ECR 311.
(
4
)	Judgment of 20 October 1981 in Case 137/80, Commission of the European Communities v Kingdom of Belgium [1981] ECR 2393.
(
5
)	Judgment of 1 April 1971 in Case 54/70, Luigi Landra v Commission of the European Communities [19711 ECR 311.
(
6
)	Judgment of 1 February 1979 in Case 17/78, Fausta Deshormes (née La Valle) v Commission of the European Communities [1979] ECR 189.
(
7
)	Judgment of 23 February 1983 in Joined Cases 225 and 241/81, Armando Toledano Laredo and Mario Garilli v Commission of the European Communities [1983] ECR 347.
(
8
)	Judgment of 1 April 1971 in Case 54/70, Luigi Landra v Commission of the European Communities [1971] ECR 311.
(
9
)	Judgment of 18 March 1982 in Case 212/81, Caisse de Pension des Employés Privés v Léon Bodson [1982] ECR 1019.
(
10
)	Judgment of 19 November 1981 in Case 194/80, Paolo Benassi v Commission of the European Communities [1981] ECR 2815.