Keywords

Summary



Keywords

1. Appeals – Subject-matter – Pleas seeking only annulment of the decision adopted at first instance – Admissibility

(Statute of the Court of Justice, Annex I, Art. 13(1); Rules of Procedure of the Court of First Instance, Art. 139(1)(b))

2. Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme – Procedures

(Staff Regulations of Officials, Annex VIII, Art. 11(2))

3. Officials – Actions – Jurisdiction of the Community judicature – Limits – Prohibition on ruling ultra petita

(Statute of the Court of Justice, Art. 21, first para., and Annex I, Art. 7(1); Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

4. Officials – Actions – Measures adversely affecting an official – Meaning – Refusal of a request for authorisation to claim from the body managing the national pension scheme, on the basis of the illegality of the national legislation applied, withdrawal of a decision determining the amount of pension rights acquired by the official before entry into the service of the Communities and its replacement by a new decision – Lack of jurisdiction of the Community institution – Not included

(Staff Regulations of Officials, Arts 90 and 91; Annex VIII, Art. 11(2))

5. Officials – Actions – Measures adversely affecting an official – Meaning – Failure to take a measure required by the Staff Regulations – Failure of the institution to assist its officials in the absence of a request to that effect – Not included

(Staff Regulations of Officials, Arts 24, 90 and 91)

Summary

1. The absence, in an appeal, of pleas to the effect that the forms of order sought at first instance should be granted, in whole or in part, within the meaning of Article 139(1)(b) of the Rules of Procedure of the Court of First Instance does not justify rejection of that appeal as inadmissible where it contains pleas by the appellant seeking that the judgment of the Civil Service Tribunal be set aside in accordance with Article 139(1)(a) of those rules.

The useful effect of such an appeal is maintained in such circumstances inasmuch as, although the Court of First Instance allows the appellant’s claim to set aside the judgment, it does not terminate the dispute but puts the parties back in the situation they were in before the adoption of the contested decision. The court which will definitively decide the dispute, whether the Civil Service Tribunal or the Court of First Instance itself, in accordance with the use the latter has made of the possibility granted to it by Article 13(1) of Annex I to the Statute of the Court of Justice, will have to take account of the forms of order sought by those parties at first instance, either for the purpose of allowing them, in whole or in part, or of rejecting them, without being able to base such rejection on the fact that those forms of order were not once again sought before it.

(see paras 40-41)

2. According to the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations in the version prior to the entry into force of Regulation No 723/2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, the institution in which the official serves is to determine the number of years of pensionable service with which he is to be credited under its own pension scheme in respect of the former period of service, on the basis of the amount of the retirement pension rights acquired under national pension schemes before entering the service of that institution. It is clear from that provision that the Community institution is under no other obligation than to convert into years of pensionable service to be credited under its own scheme the amount of the pension rights calculated by the bodies which manage the national pension schemes under which the official concerned acquired rights before entering the service of the Communities. On the other hand, the method of calculating the amount of the pension rights which may be transferred is a matter solely for the bodies managing the national pension schemes concerned by the transfer. Each Member State is bound to select and put into effect specific measures which will make possible the exercise of the right granted to Community officials to transfer rights acquired under national pension schemes to the Community pension scheme.

The decisions concerning the calculation of the amount of the pension rights to be transferred and the conversion of that entitlement into years of pensionable service to be credited under the Community pension scheme fall within different legal systems, and each must be dealt with by the courts having jurisdiction under the relevant legal system. Only the national authorities and courts have the power to entertain applications or settle disputes concerning decisions calculating rights acquired by Community officials under national pension schemes and it is for the officials concerned to make such requests to, or bring such disputes before those authorities and courts, in accordance with the procedures laid down in the applicable national law.

(see paras 56-57)

3. Since it would be ultra vires for the Community Court before which an action for annulment has been brought to rule ultra petita , the scope of the annulment which it pronounces may not go further than that sought by the applicant in the application initiating proceedings, which must define the subject-matter of the dispute.

(see paras 71-72)

4. Refusal by the appointing authority to accede to the request of an official, seeking, on the basis of alleged illegality of the national legislation applied, authorisation to claim from the body managing the national pension scheme the withdrawal of a decision already adopted fixing the amount of pension rights acquired by that official under that scheme prior to his entry into the service of the Communities and the adoption of a new decision in that regard on the basis of new national legislation does not constitute an act adversely affecting that official, since the appointing authority does not have the competence to take the measures requested of it. Such a request is based on a challenge concerning the application of national law by the bodies managing national pension schemes, which, in accordance with the division of powers which flows from the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations in the version prior to the entry into force of Regulation No 723/2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, is a matter for the national legal system and thus within the sole jurisdiction of the national authorities or courts, which may, in an appropriate case, refer matters brought before them to the Court of Justice for a preliminary ruling under Article 234 EC.

(see paras 87, 92-96)

5. Failure of an institution to assist its officials and other staff under Article 24 of the Staff Regulations constitutes an act adversely affecting them within the meaning of Article 90(2) of the Staff Regulations only if the obligation to assist is imposed on the institution independently of any request from its officials or other staff. However, according to case-law, it is, in principle, for the official concerned to request assistance from the relevant institution and only exceptional circumstances may oblige the Community institution to provide specific assistance not in response to a request from the official concerned but on its own initiative.

(see paras 100-101)