1.

On the first point it should be stated at the outset that the Commission correctly determined pursuant to the second indent of Article 102 (2) (b) that the maximum number of years of pensionable service to be credited was five years, five months and three days. The applicant expressly admitted this limit in his reply and limited the subject-matter in dispute to this maximum. We must hence examine whether the applicant should not be credited by the Commission with a further two years and two months pensionable service up to the amount of the maximum mentioned by including so-called pre-employment periods and study periods in relation to his lost pension rights from the Insurance Fund for Workers in Steel Foundries and Rolling Mills. Both parties correctly start from the basis that the lost pension rights to be taken into account pursuant to Article 102 (2) are to be assessed in accordance with the provisions of German civil service law. Different views exist however on the question which legal situation is to be taken into account: that which existed at the time of the applicant's entry into the service of the Community in October 1956 — which is the Commission's view point; or, as the applicant considers, that which applied on the day of his retirement. In my opinion this question can only be answered in accordance with the Commission's view to the effect that the pension rights which accrued to the applicant in respect of his previous employer are to be assessed, irrespective of the actual time when the calculation is made, according to the provisions which were in force when the applicant was obliged to forfeit them by reason of his entry into the service of the Community. This results simply from the wording of the provisions in question, which refers to the years of pensionable service accrued before forfeiture in the country of origin. This interpretation is also supported by the purpose of the transitional provisions in question, which were intended to ensure that an official who was already in service in 1962 and could not complete the maximum number of years of pensionable service should nevertheless receive an appropriate pension without being required to make additional contributions. It is in accordance with this intention that any later developments in the legal situation which were more favourable for the applicant should no longer be taken into account since the applicant had already given up his status as a German official at this time and had instead acquired pension rights in the Community. Consequently Article 7 (1) of the general implementing provisions which were issued later and put these rules into concrete terms correctly take as the point of departure for the calculation of the credit the national pension scheme which applied to the official at the time when he was obliged to forfeit his rights. Article 106 of the Federal Civil Service Law of 14 July 1953 (BGBl. I, p. 551), which was valid at this time and until 1970 required that the official should “normally” have completed a period of service of at least ten years in order to be entitled to a pension. Only after the expiry of this waiting period which had to be completed by service actually performed, did an official acquire a contingent right to a pension. The applicant had however not completed the waiting period at the time of terminating his service with his former employer, the Insurance Fund for Workers in Steel Foundries and Rolling Mills, and had therefore not acquired any contingent right to a pension under civil service law. In compensation for the lost prospects of such a pension, his former employer therefore took out retroactive insurance under the statutory pension scheme in accordance with the Clerical Staff Insurance Law. The Commission for its part did not take into account the fact of the retroactive insurance in calculating the value of the applicant's lost prospects of a civil service pension, but rather took as a basis the years of pensionable service actually performed, five years, seven months and fifteen days. The Commission then evaluated the prospect of a pension related to this waiting period at 35 % of total salary, although this percentage in principle could only be reached after ten years of actual service. The applicant now submits that certain periods prior to employment, in particular periods of study, are to be taken into account in calculating the number of years of pensionable service pursuant to Article 116a of the Federal Civil Service Law, which was added by Article 139 of the Civil Service Outline Law of 1 July 1957 (BGBl. I, p. 667) retroactively to 1 September 1953. He claims that because of the retroactive effect of this provision the Law applied to him. Together with the Commission I would first point out on this submission that a distinction is to be made under Article 116 (1) (3) of the German Federal Civil Service Law, between periods during which an official after attaining the age of eighteen and before his appointment as an official has acquired special qualifications in particular areas which are a necessary condition for the exercise of his office on the one hand and periods of study which may be taken into account as years of pensionable service pursuant to Article 116a of the Federal Civil Service Law on the other hand. Clearly what the applicant claims is that he should be credited with the period of his professional activity prior to his entry into the service or the Berufsgenossenschaft from 1941 until 1951 as reckonable periods prior to entry into service within the meaning of Article 116 (1) (3) of the Federal Civil Service Law and furthermore that he should be credited with periods of study from 1936 to 1941 pursuant to Article 116a of that Law. However, both periods must be left out of consideration for the calculation of the waiting periods which give rise to the contingent right to a civil service pension within the meaning of Article 106 of the Federal Civil Service Law, since they are not mentioned as years of pensionable service in that article. As the Commission rightly points out those periods can only be credited if the condition precedent of an entitlement to a civil service pension within the meaning of Article 106 of the Federal Civil Service Law is already satisfied without their inclusion. The applicant on the other hand demands to be treated for the purposes of the compensation to be granted under Article 102 (2) of the ECSC Staff Regulations as if his employment under German civil service law had not been terminated in October 1956 but as if he had continued in the service of his German employer. It would only be on this premise that he would have acquired a vested or contingent right to a pension in the hypothetical event of invalidity or completion of the ten year waiting period. The scheme of compensation under Article 102 (2) of the ECSC Staff Regulations is not however based on the vested or contingent pension rights which might perhaps have accrued in the country of origin under one premise or another if there had been continuity of employment, but quite clearly only provides for “accrued” pension rights in the country of origin to be taken into account. Accordingly the applicant was obliged to forfeit only the number of five years seven months and fifteen days' actual service by reason of his entering the service of the Community and hence can at best receive compensation under Article 102 (2) of the ECSC Staff Regulations for the forfeiture only of those years of service. In any event, as appears from the calculations enclosed with the letter of the Federal Insurance Office for Clerical Staff dated 26 August 1976, the applicant is fully covered by payment of contributions to the statutory pension scheme for the period of prior employment in question with the consequence that there is no deficiency in his cover in this respect and that if the periods of prior employment were credited under Article 102 (2) this would lead to overlapping of benefits. The possibility of taking account of the periods of study within the meaning of Article 116a of the Federal Civil Service Law in applying Article 102 (2) of the ECSC Staff Regulations is also nonexistent for a further reason, as the defendant rightly stresses. As we have seen, this provision was introduced into the Civil Service Law by Article 139 (1) and (2) of the Civil Service Outline Law of 1 July 1957 with effect from 1 September 1953, and made no provision for compensation for periods prior to the coming into force of the Law on 1 September 1957, as appears from Article 139 (4) of the Outline Law. Contrary to the applicant's submission however, only those persons who fall within the scope of this scheme are affected by its retroactive effect. These are however in principle only those officials in service at the time of its coming into force on 1 September 1957 and recipients of pensions on the basis of an event giving rise to a pension which occurred after 1 September 1953. The applicant, whose employment as an official with the Insurance Fund for Workers in Steel Foundries and Rolling Mills was terminated with effect from 31 October 1956 cannot therefore derive any rights from this amendment. In particular he cannot rely on the exception contained in Article 139 (3) of the Outline Law since his employment was not terminated on his reaching the age-limit nor had he completed the ten-year waiting period provided for in Article 106 of the Civil Service Law. Let me say finally on this point that since the applicant was not entitled to a credit for the period of his studies at the time of his entering the service of the Community, the possibility of such a credit could not be regarded by him either, when he entered the service of the Community, as a pension right which he was obliged to forfeit by reason of his entering the service of the Community. Thus the applicant's claim for his periods prior to employment and study periods to be taken into account in the application of Article 102 (2) of the ECSC Staff Regulations proves to be unfounded.