JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
18 March 2004
Case T-67/02
Léopold Radauer
v
Council of the European union
(Officials – Transfer of the flat-rate redemption value of retirement pension rights acquired in the course of professional activities
prior to entry into the service of the Communities – Calculation of the years of pensionable service – Article 11(2) of Annex VIII to the Staff Regulations – General implementing provisions – Principle of equal treatment – Freedom of movement for workers)
Full text in French II - 0000
Application:         for annulment of the Council decision of 17 April 2001 calculating the applicant’s years of pensionable service following
transfer to the Community scheme of the flat-rate redemption value of the retirement pension rights which he had acquired
under the Austrian scheme.
Held:         The application is dismissed. The parties are ordered to bear their own costs.
Summary
1.     Officials – Pensions – Pension rights acquired before entering the service of the Communities – Transfer to the Community
scheme – Rules
(Staff Regulations, Annex VIII, Art. 11(2))
2.     Officials – Pensions – Pension rights acquired before entering the service of the Communities – Transfer to the Community
scheme – Crediting of years of pensionable service – Method of calculation – Official recruited in the higher grade of his
category – Taking into account of basic salary on the date of establishment as an official – Discrimination compared with
officials recruited at the basic grade – None
(Staff Regulations, Annex VIII, Art. 11(2); Council’s general implementing provisions, Art. 10(3))
3.     Officials – Pensions – Pension rights acquired before entering the service of the Communities – Transfer to the Community
scheme – Crediting of years of pensionable service – Method of calculation – Use of factors which vary according to gender
and age – Admissibility
(Staff Regulations, Annex VIII, Art. 11(2))
4.     Officials – Pensions – Pension rights acquired before entering the service of the Communities – Transfer to the Community
scheme – Actuarial assessment of the pension scheme – Determination of the number of years of pensionable service on the basis
of an actuarial assessment – Entirely separate operations
(Staff Regulations, Art. 83(4); Annex VIII, Art. 11(2))
1.     The system for transferring the actuarial equivalent or the flat-rate redemption value of retirement pension rights acquired
by an official in the course of professional activities before he entered the service of the Communities involves two separate
main phases.
The first consists of the establishment of the actuarial equivalent or the flat-rate redemption value by the national or international
authority administering the pension scheme to which the official concerned belonged before he entered the service of the Communities.
The purpose of calculating the actuarial equivalent is to capitalise the value of a future contingent periodic benefit and
is therefore based on a calculation of the capital corresponding to the pension to which the person concerned will be entitled
under the national or international pension scheme in question, by the application of a discount rate by reason of the anticipated
nature of the payment as compared with the due date, together with a reduction coefficient proportionate to the risk of the
death of the recipient before the due date, determined as a function of the age of the insured and of the death rate, both
factors being calculated on the basis of the time due to elapse between the date of the award of the actuarial equivalent
and that of the grant of the pension. The calculation of the flat-rate redemption value may be effected in contributory insurance
schemes by adding up the contributions paid by the insured person, together, where appropriate, with those paid by his employer;
interest may be added to these contributions.
The second phase consists of the conversion by the Community institution concerned of the capital corresponding to the actuarial
equivalent or the flat-rate redemption value into years of pensionable service to be included in the Community pension scheme
in addition to those to which the official will be entitled in respect of his work for the Communities.
The two decisions – one concerning the calculation of the actuarial equivalent or flat-rate redemption value and the other
concerning the conversion of those assets into years of pensionable service – fall within different legal systems, and each
must be dealt with by the courts having the relevant jurisdiction. Thus the rules for calculating the amount of the actuarial
equivalent or the flat-rate redemption value are the responsibility solely of the national or international authority administering
the previous pension scheme of the person concerned. That amount is then reassessed by the Community institution concerned
on the basis of the rules applicable under the Community’s pension scheme. Since both of those operations are based on different
particulars and considerations regarding the history of those concerned, their future prospects, the amount of contributions
and the nature and amount of benefits, it is entirely possible that the determination of the years of pensionable service
to be taken into account for the Community pension leads to a different figure from the years of pensionable service taken
into account by the national or international authority.
(see paras 28-31)
See: 212/81 Bodson [1982] ECR 1019, paras 7 and 8; 118/82 to 123/82 Celant and Others v Commission [1983] ECR 2995, para. 28; 75/88, 146/88 and 147/88 Bonazzi-Bertottilli and Others v Commission [1989] ECR 3599, para. 19; T-233/97 Bang-Hansen v Commission [1998] ECR-SC I-A-625 and II-1889, para. 39; T-103/98, T-104/98, T-107/98, T-113/98 and T-118/98 Kristensen and Others v Council [1999] ECR-SC I-A-215 and II-1111, para. 34
2.     The Staff Regulations, including Annex VIII thereto, contain no provisions specifically governing, as regards the transfer
of the actuarial equivalent or the flat-rate redemption value of pension rights acquired before entry into the service of
the Communities, the situation of a new official recruited at the higher grade of his category. In the absence of such specific
provisions, the transfer of the actuarial equivalent or the flat-rate redemption value of the pension rights of that official
is, as for any other official, governed by the provisions of Article 11(2) of Annex VIII to the Staff Regulations and by Article
10(3) of the general implementing provisions, pursuant to which the number of years of pensionable service to be credited
is to be calculated by reference to the official’s grade on establishment.
In the case of an official recruited at the higher grade, that will admittedly mean that the number of years pensionable service
credited will be smaller than that credited to an official recruited at the basic grade, but that does not result in discrimination,
because there can be no discrimination unless different rules are applied to comparable situations or the same rule is applied
to different situations.
(see paras 62, 65)
See: 8/82 Wagner [1983] ECR 371, para. 18; 283/83 Racke [1984] ECR 3791, para. 7; C-311/97 Royal Bank of Scotland [1999] ECR I-2651, para. 26; T-106/01 Youssouroum v Council [2002] ECR-SC I-A-93 and II-435, para. 41
3.     The use of factors which vary according to gender and age for calculating the number of years of pensionable service to be
credited is objectively justified by the need to ensure the sound financial management of the Community pension scheme. Where,
under Article 11(2) of Annex VIII to the Staff Regulations, an official arranges for capital representing the pension rights
he acquired before entering the service of the Communities to be transferred to the Community budget in the form of an actuarial
equivalent or flat-rate redemption value, he obtains in return an entitlement to future benefits under the Community pension
scheme which is represented by years of pensionable service credited and whose scale is a function of the number of years
he is granted. In order to determine the current value of that entitlement, the Community institution concerned must take
account of a series of factors including the probable period during which the capital brought by the person concerned will
remain in the Community budget, the anticipated progress of his career, the probability that the benefits will be paid to
him and the probable period for which those payments will be made. Clearly, those factors depend in particular on the gender
of the person concerned and his or her age when joining the Community pension scheme.
(see para. 84)
4.     The actuarial assessment of the pension scheme provided for in Article 83(4) of the Staff Regulations concerns the Community
pension scheme as a whole and its aim is to verify whether the amount contributed by officials is sufficient to finance one
third of the benefits payable under the pension scheme. The determination of the number of years’ pensionable service credited
when transferring pension rights acquired before entry into the service of the Communities pursuant to Article 11(2) of Annex
VIII to the Staff Regulations is designed to establish, on the basis of an actuarial assessment, the value, in terms of entitlement
to future benefits, of the capital transferred to the Community budget in the case of each individual official concerned.
They are therefore two entirely separate operations carried out for different purposes.
(see para. 85)