JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Full Court)

11 December 2013 ( )

(Civil service — Officials — Pensions — Transfer of pension rights acquired under a national pension scheme — Regulation adjusting the rate of contribution to the EU pension scheme — Adjustment of actuarial values — Need to adopt general implementing provisions — Temporal application of the new general implementing provisions)

In Case F‑117/11,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Catherine Teughels, official of the European Commission, residing in Eppegem (Belgium), represented by L. Vogel, lawyer,

applicant,

v

European Commission, represented by D. Martin and J. Baquero Cruz, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL (Full Court)

composed of S. Van Raepenbusch, President, M.I. Rofes i Pujol, President of the Chamber, E. Perillo (Rapporteur), R. Barents and K. Bradley, Judges,

Registrar: M.J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 24 April 2013,

gives the following

Judgment

1 By application lodged at the Registry of the Tribunal on 8 November 2011, Ms Teughels brought the present action seeking, essentially, the annulment, first, of the decision of the European Commission of 24 May 2011 fixing the number of pensionable years to be taken into account in the European Union pension scheme should she transfer her national pension rights, and, second, of the decision of 28 July 2011 by which the Commission rejected her complaint against Commission Decision C(2011) 1278 of 3 March 2011 on general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) on transferring pension rights (‘the 2011 GIP’).

Legal context

2 Article 83a of the Staff Regulations is worded as follows:

‘1. The scheme shall be kept in balance in accordance with the detailed rules set out in Annex XII [to the Staff Regulations].

…

3. On the occasion of the five-yearly actuarial assessment in accordance with Annex XII [to the Staff Regulations] and in order to ensure the balance of the [pension] scheme, the Council [of the European Union] shall decide on the rate of contribution and any change to the pensionable age.

4. Each year the Commission shall present to the Council an updated version of the actuarial assessment, in accordance with Article 1(2) of Annex XII [to the Staff Regulations]. Where it is shown that there is a gap of at least 0,25 points between the rate of contribution currently applied and the rate required to maintain actuarial balance, the Council shall consider whether the rate should be adapted, in accordance with the arrangements laid down in Annex XII [to the Staff Regulations].

…’

3 Article 84 of the Staff Regulations provides:

‘Detailed rules governing the foregoing pension scheme are contained in Annex VIII [to the Staff Regulations].’

4 Article 110(1) of the Staff Regulations provides:

‘The general provisions for giving effect to these Staff Regulations shall be adopted by each institution after consulting its Staff Committee and the Staff Regulations Committee. …’

5 Article 8 of Annex VIII to the Staff Regulations, prior to the entry into force of Council Regulation (EC, Euratom) No 1324/2008 of 18 December 2008 adjusting, from 1 July 2008, the rate of contribution to the pension scheme of officials and other servants of the European Communities (OJ 2008 L 345, p. 17), provided as follows:

‘“Actuarial equivalent of the retirement pension” means the capital value of the benefits accruing to the official by reference to the mortality table referred to in Article 9 of Annex XII [to the Staff Regulations] and subject to 3.5% interest per annum, which rate may be revised in accordance with the rules laid down in Article 10 of Annex XII [to the Staff Regulations].’

6 Article 2 of Regulation No 1324/2008 lays down in that regard:

‘With effect from 1 January 2009 the rate, in Articles 4(1) and 8 of Annex VIII to the Staff Regulations … shall be 3.1%.’

7 According to Article 11(1) of Annex VIII to the Staff Regulations:

‘An official who leaves the service of the Communities to:

– enter the service of a government administration or a national or international organisation which has concluded an agreement with the Communities;

…

shall be entitled to have the actuarial equivalent of his retirement pension rights, updated to the actual date of transfer, in the Communities transferred to the pension fund of that administration or organisation …’

8 By contrast, according to Article 11(2) of Annex VIII to the Staff Regulations:

‘An official who enters the service of the Communities after:

– leaving the service of a government administration or of a national or international organisation;

…

shall be entitled, after establishment but before becoming eligible for payment of a retirement pension … to have paid to the Communities the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.

In such case the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Community pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.

Officials may make use of this arrangement once only for each Member State and pension fund concerned.’

9 Article 26(4) of Annex XIII to the Staff Regulations provides:

‘In the cases provided for in paragraphs 2 and 3 of this Article, the institution where the official is working shall determine the number of pensionable years to be taken into account under its own scheme pursuant to the general implementing provisions adopted in respect of Article 11(2) of Annex VIII [to the Staff Regulations], which shall take into account the provisions of this Annex. …’

10 By decision C(2004) 1588 of 28 April 2004, published in Administrative Notice No 60 of 9 June 2004, the Commission adopted general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations on transferring pension rights (‘the 2004 GIP’). The 2004 GIP refer to two tables of actuarial values in two annexes, Annex 1, which concerns the actuarial values (V1) for calculating the transferable amount of actuarial equivalent under Articles 11(1) and 12 of Annex VIII to the Staff Regulations, and Annex 2, which concerns the actuarial values (V2) for calculating the number of pensionable years to be credited under Article 11(2) and (3) of Annex VIII to the Staff Regulations.

11 The V1 and V2 actuarial values, calculated according to age at the date of the application and on the basis of the parameters laid down in Annex XII to the Staff Regulations, are identical.

12 By decision of 3 March 2011 the Commission repealed the 2004 GIP and adopted the 2011 GIP, published in Administrative Notice No 17 of 28 March 2011.

13 The 2011 GIP came into force on 1 April 2011 and provide in Article 9 as follows:

‘These general implementing provisions … shall enter into force on the first day of the month following the date on which they are published in the Administrative Notices.

They shall repeal and replace the [2004 GIP].

However, [the 2004 GIP] shall continue to apply to transfers under Article 11(1) and Article 12 of Annex VIII to the Staff Regulations in cases where the termination of service took place before 1 January 2009. They shall also continue to apply to the cases of staff whose request for a transfer under Article 11(2) and (3) of Annex VIII to the Staff Regulations had been registered before 1 January 2009.

The conversion coefficients … laid down in Annex 1 shall apply from 1 January 2009. They shall be automatically amended following any adjustment of the interest rate set out in Article 8 of Annex VIII to the Staff Regulations.’

14 Unlike the 2004 GIP, Annex 1 to the 2011 GIP contains just one table showing the actuarial values, now called ‘conversion coefficients’, to be applied both for calculating the transferable amount of actuarial equivalent and for calculating the number of additional years of pensionable service to be credited. The conversion coefficients, also calculated according to age at the date of the application and on the basis of the parameters laid down in Annex XII to the Staff Regulations, are higher than the actuarial values V1 and V2 contained in Annexes 1 and 2 to the 2004 GIP.

Background to the dispute

15 On 3 November 2009, the applicant, an official at the Commission, applied for the transfer of pension rights she had acquired with the Belgian National Pensions Office before she entered the service of the Commission (‘the transfer application’).

16 By a note of 29 June 2010 addressed to the applicant (‘the first proposal concerning additional pensionable years’) the competent department of the Commission, the ‘Transfers’ section of the ‘Pensions’ unit of the Office for the Administration and Payment of Individual Entitlements (PMO) (‘PMO 4’) fixed at 22 years, 1 month and 6 days the number of pensionable years to be taken into account in the European Union pension scheme resulting from the transfer of the rights acquired by the applicant in Belgium. A surplus capital sum of EUR 12 531.41 could not be converted into pensionable years under the Staff Regulations and was to be paid to the applicant if she definitively transferred her pension rights. The first proposal concerning additional pensionable years also stated that, if the general implementing provisions for Article 11 of Annex VIII to the Staff Regulations were amended, the number of pensionable years granted would not be changed. The applicant had a period of two months to accept or reject the first proposal concerning additional pensionable years.

17 The applicant requested further details of the first proposal concerning additional pensionable years. Emails were exchanged.

18 In the meantime, by a staff note of 5 May 2010 (the ‘note of 5 May 2010’), the Commission’s services had stated that the updated general implementing provisions would come into force on the first day of the month following the date on which they were published in the Administrative Notices, and that all transfer requests registered before the date on which the new general implementing provisions came into force would be dealt with under the 2004 GIP.

19 Furthermore, the Director-General of the Commission’s Directorate-General for Human Resources and Security, in a note of 25 May 2010 addressed to the Secretary-General of the Commission and three of the institution’s directors-general, had stated that, in order to make the system for transferring pension rights more transparent and to provide greater legal certainty, he had decided to approve an amended version of the general implementing provisions which no longer had retroactive effect.

20 Likewise, in a staff note published in the Administrative Notices of 30 July 2010 (the ‘note of 30 July 2010’), the Commission stated that the updated general implementing provisions would come into force on the first day of the month following the date on which they were published in the Administrative Notices, and that all transfer requests registered before the date on which the future general implementing provisions came into force would be dealt with under the 2004 GIP. The note of 30 July 2010 made clear that the amendment of the 2004 GIP would relate to the transfer of rights acquired in the service of the Union to a national pension scheme and the transfer to the EU pension scheme of rights acquired in a Member State.

21 By an email of 20 August 2010 and at the applicant’s request, PMO 4 extended until 30 September 2010 the deadline for the applicant to express an opinion on the first proposal concerning additional pensionable years. The applicant did not formally accept or reject that proposal.

22 In a staff note of 17 September 2010 (the ‘note of 17 September 2010’), the Commission stated that, in anticipation of the adoption by the Commission of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations, a number of officials had applied for the transfer of their pension rights, and that PMO 4 had registered over 10 000 applications since 1 January 2010. However, the note of 17 September 2010 explained that, contrary to a misleading note from the administration, among others, in May 2010, the application of the new general implementing provisions and in particular of the new actuarial values had to follow the rules laid down by the Staff Regulations and in particular Regulation No 1324/2008. Consequently, the new general implementing provisions must necessarily apply to all transfers of rights acquired in a Member State to the EU pension scheme requested from 1 January 2009 onwards, and to all transfers to a national pension scheme of the capital value of pension rights acquired by an official in the service of the Union for those leaving from that date onwards. Lastly, according to the note of 17 September 2010, the small number of transfers which had already been the subject of a transfer proposal or payment of capital by the originating pension fund would be dealt with appropriately. The staff members concerned would be sent individual letters as soon as possible informing them of the action to be taken on their transfer.

23 Following the note of 17 September 2010, PMO 4 informed the applicant, by an email of 28 September 2010, that the Commission ‘[was] required to review the proposal made to her’ in order to apply the future general implementing provisions ‘that [would] come into force retroactively on 1 January 2009’.

24 On 17 December 2010, the applicant made a formal complaint under Article 90(2) of the Staff Regulations against the note of 17 September 2010. That complaint was rejected on 12 April 2011 on the ground that the note of 17 September 2010 did not contain an act adversely affecting her.

25 Following the adoption of the 2011 GIP, PMO 4 sent the applicant a second proposal concerning additional pensionable years (‘the second proposal concerning additional pensionable years’) on 24 May 2011, accompanied by a note explaining that the new proposal ‘cancelled and replaced’ the first proposal concerning additional pensionable years. According to the second proposal concerning additional pensionable years, the conversion coefficients used in the first proposal concerning additional pensionable years were ‘obsolete’ and ‘had no legal basis from 1 January 2009’ as a result of the entry into force, on that date, of the interest rate laid down in Regulation No 1324/2008. That interest rate was one of the elements involved in calculating the conversion coefficients to be used when converting previously acquired pension rights into a number of pensionable years to be credited under the Staff Regulations. Consequently, the first proposal concerning additional pensionable years was ‘to be regarded as null and void’. In accordance with the conversion coefficients laid down in the 2011 GIP, the number of pensionable years to be credited was recalculated at 17 years and 7 months.

26 On 3 June 2011, the applicant made a formal complaint under Article 90(2) of the Staff Regulations against the 2011 GIP and in particular Article 9 thereof, taking the view that that provision infringed the principle of non-retroactivity.

27 By a decision of 28 July 2011, notified to the applicant’s counsel on 29 July 2011, the appointing authority stated that ‘[r]egardless of whether the [2011] GIP c[ould] be classified as an act adversely affecting [the applicant], the [second] proposal concerning additional pensionable years … [was] deemed to be an act adversely affecting [her]’ and that it was consequently the second proposal concerning additional pensionable years which ‘[was] the subject of this decision’, and it rejected her complaint (‘the decision rejecting her complaint’).

Procedure and forms of order sought

28 By a separate document lodged with the Tribunal Registry on 4 January 2012, the Commission raised an objection of inadmissibility under Article 78 of the Rules of Procedure of the Tribunal and requested the Tribunal to rule on this objection without trying the merits of the case.

29 By a document lodged with the Tribunal Registry on 27 January 2012, the applicant submitted observations on the objection of inadmissibility raised by the Commission.

30 By a letter of 25 May 2012 the Tribunal Registry informed the parties that the Tribunal had decided to reserve a decision on the objection of inadmissibility for the final judgment.

31 The applicant claims that the Tribunal should:

– annul the decision rejecting her complaint;

– in so far as is necessary, annul the second proposal concerning additional pensionable years;

– ‘under Article 277 [TFEU] if necessary’ annul the 2011 GIP and in particular Article 9 thereof;

– order the defendant to pay the costs.

32 The Commission contends that the Tribunal should:

– declare the action inadmissible and, in any event, unfounded;

– order the applicant to pay the costs.

33 By a letter of 28 January 2013, the Tribunal requested the parties, by way of measures of organisation of procedure, to provide further details on certain points in their written submissions and to produce various documents. The parties complied with those measures in accordance with the Tribunal’s instructions.

34 The case, originally assigned to the Third Chamber of the Tribunal, was referred to the Full Court of the Tribunal, and the parties were informed of this by a letter of 7 February 2013 from the Registry notifying them of the hearing and sending them the preparatory report for the hearing.

Decision

The subject-matter of the action

35 In her first head of claim the applicant seeks annulment of the decision rejecting her complaint.

36 In that regard, it should be noted that a claim for annulment formally brought against a decision to reject a complaint has, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8).

37 In the present case, although the complaint of 3 June 2011 was directed against the 2011 GIP, it was interpreted by the appointing authority as being directed solely against the second proposal concerning additional pensionable years, an interpretation which the applicant has not challenged before the Tribunal.

38 The decision rejecting her complaint confirms the second proposal concerning additional pensionable years. Consequently, the claims against the decision rejecting her complaint must be regarded as being directed against the second proposal concerning additional pensionable years, which is in fact the subject of the second head of claim.

39 In her third head of claim the applicant seeks annulment ‘in so far as is necessary, … under Article 277 [TFEU] if necessary’ of the 2011 GIP and in particular Article 9 thereof.

40 It is clear from the reference to Article 277 TFEU and from the arguments in the application that in her third head of claim the applicant is, in fact, raising a plea of illegality against Article 9 of the 2011 GIP as a measure of general application, a plea which, even if well founded, would, in the present case, result merely in the annulment of the second proposal concerning additional pensionable years, which is, precisely, the subject of the second head of claim.

41 In view of all the foregoing, only the claims for annulment of the second proposal concerning additional pensionable years need be examined.

The plea of inadmissibility

Arguments of the parties

42 The Commission claims that the action is inadmissible since it is directed against the second proposal concerning additional pensionable years, which is not an act adversely affecting the applicant.

43 According to the Commission, the administrative procedure for processing applications for the transfer of pension rights acquired under a national pension scheme involves a number of stages. The proposal concerning additional pensionable years is just one of the stages in that procedure.

44 The crediting of pensionable years referred to in the proposal addressed to the official concerned becomes final only once the sums corresponding to the updated capital value of the pension rights have actually been paid into the Commission’s bank account by the national or international pension funds concerned, so that the credit decision notified to the official after the transferred capital has been received is the only act adversely affecting an official who has applied for such a transfer.

45 That being so, the second proposal concerning additional pensionable years is a preparatory measure the sole purpose of which is to pave the way for the final credit decision.

46 At the hearing the Commission also contended that the official’s pension rights are not definitively fixed by the proposal concerning additional pensionable years, particularly where the official has not accepted that proposal, and that the amount of capital transferred and, consequently, the number of pensionable years to be taken into account is likely to change between the adoption of the proposal and the adoption of the decision closing the procedure. The Commission bases this argument on Article 11(2) of Annex VIII to the Staff Regulations, which provides that the institution concerned is to determine ‘on the basis of the capital transferred’ the number of years of pensionable service to be taken into account under the EU pension scheme in respect of a former period of service.

47 The applicant, however, considers that, according to the case-law, a proposal concerning additional pensionable years is an act adversely affecting the official concerned, whether or not he accepts it.

Findings of the Tribunal

48 It should be noted first of all that the system for the transfer of pension rights, as set out in Article 11(2) of Annex VIII to the Staff Regulations, seeks, by enabling the European Union scheme to be coordinated with the national schemes, to facilitate movement from national employment, whether public or private, and also from international employment, to the European Union administration and thus to ensure that the Union has the best possible chance of being able to choose qualified staff who already possess suitable experience (order of 9 July 2010 in Joined Cases C‑286/09 and C‑287/09 Ricci, paragraph 28 and the case-law cited).

49 In that context, the General Court held in particular that proposals concerning additional pensionable years sent to officials for agreement are ‘decisions’ which have a double effect: first of preserving for the official concerned, in the original legal system, the amount of pension rights he acquired in the corresponding pension scheme and, secondly, of ensuring that, in the European Union legal order and subject to the fulfilment of certain additional conditions, those rights are taken into account in the European Union pension scheme (judgment of 18 December 2008 in Joined Cases T‑90/07 P and T‑99/07 P Belgium and Commission v Genette, paragraph 91 and the case-law cited).

50 The Tribunal also, for its part, has held that proposals concerning additional pensionable years constitute unilateral acts which do not call for any other measure on the part of the competent institution and which adversely affect the official concerned. If that were not so those acts would, as such, not be open to challenge before the courts or, at least, could not be the subject of a complaint or an action until a later decision was taken, at an unspecified date, by an authority other than the appointing authority. That analysis does not respect either the right of officials to effective judicial protection or the requirements of legal certainty inherent in the rules on time-limits laid down in the Staff Regulations (order of 10 October 2007 in Case F‑17/07 Pouzol v Court of Auditors, paragraphs 52 and 53).

51 Lastly, that line of authority was also upheld by the judgment of 11 December 2012 in Case F‑122/10 Cocchi and Falcione v Commission (which is currently under appeal before the General Court, Case T‑103/13 P, paragraphs 37 to 39), in which the Tribunal held that the proposal concerning additional pensionable years was an act adversely affecting the official concerned.

52 It is therefore clear from the case-law cited in paragraphs 49 to 51 above that the proposal concerning additional pensionable years which the competent services of the Commission submit for an official’s agreement, during the various stages of the administrative procedure for transfer of pension rights described above, is a unilateral act, separable from the procedural framework in which it is taken, adopted under circumscribed powers attributed ex lege to the institution, since it stems directly from the individual right which Article 11(2) of Annex VIII to the Staff Regulations confers expressly on officials and other servants when they enter the service of the European Union.

53 The exercise of those circumscribed powers requires the Commission to draw up a proposal concerning additional pensionable years which is based on all the relevant data which it is required to obtain from the national or international authorities concerned specifically in the context of close coordination and sincere cooperation between these authorities and the Commission services. Such a proposal, therefore, cannot be regarded as the manifestation of a ‘mere intention’ of the service of the institution to provide information to the official concerned, pending receipt of his agreement followed by receipt of the capital sum enabling the institution to credit the additional years of pensionable service. On the contrary, such a proposal constitutes the necessary commitment on the part of the institution to proceed correctly in implementing effectively the official’s right to transfer of his pension entitlements which he has exercised in submitting his request for transfer. The transfer of the updated capital sum to the European Union pension scheme, for its part, constitutes the honouring of a separate obligation incumbent on the national or international authorities, which is necessary in order to carry out in full the procedure for the transfer of pension rights to the European Union pension scheme.

54 Thus, the exercise of circumscribed powers in the implementation of Article 11(2) of Annex VIII to the Staff Regulations requires the Commission to employ all necessary diligence in order to enable an official who has requested the application of Article 11(2) of Annex VIII to the Staff Regulations to give his agreement to the proposal concerning additional pensionable years in full knowledge of the facts, both as regards the data required in order to calculate the number of additional pensionable years for purposes of the Staff Regulations to be credited and as regards the rules governing, ‘at the date of application for a transfer’, the method for such calculation, as expressly stated in Article 11(2) of Annex VIII to the Staff Regulations, which provides that the institution in which the official serves is to ‘determine’ by means of general implementing provisions ‘the number of years of pensionable service’ with which he is to be credited, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer.

55 It is clear from all the foregoing that a proposal concerning additional pensionable years is an act adversely affecting the legal situation of an official who has made a request for transfer of his pension rights.

56 That conclusion is also supported by the following considerations.

57 In the first place, codifying previous practice in clauses contained in proposals of additional pensionable years, Article 8 of the 2011 GIP now expressly provides that the agreement which the official is requested to give to the proposal concerning additional years of pensionable service, once given, is ‘irrevocable’, confirming an earlier practice which was written into clauses contained in proposals concerning additional years of pensionable service. However, the irrevocable nature of the official’s agreement once given is justified only if the Commission, for its part, has submitted to the person concerned a proposal whose content has been calculated and put forward with all due care and which is binding on the Commission in so far as it obliges it to carry out the transfer process on that basis where the person concerned gives his agreement.

58 Secondly, the proposal concerning additional pensionable years is made, in principle, on the basis of a method of calculation which is the same as the one applying at the time when the European Union pension scheme receives in full the capital sum definitively transferred by the national or international fund holding the funds.

59 The most that might change between the date of the proposal concerning additional pensionable years and the date of receipt of the definitive capital sum is the amount of the sum concerned, as the amount of the transferable capital sum updated to the date of the request for transfer may be different from the amount of the capital sum on the date on which it is actually transferred, because of fluctuations in exchange rates, for example. Even in the latter case, which can only affect capital transfers expressed in currencies other than the euro, the method of calculation applied to both amounts is in fact the same.

60 Thirdly, the Commission’s argument that only the decision on additional years of pensionable service adopted after definitive receipt of the capital in question adversely affects the official concerned clearly conflicts with the purpose of the administrative procedure for the transfer of pension rights. The purpose of that procedure is specifically to enable the official concerned to decide, in full knowledge of the facts and before the capital sum corresponding to all his contributions is definitively transferred to the European Union pension scheme, whether it is more advantageous for him to combine his previous pension rights with those he acquires as a European Union official or, on the other hand, to preserve his rights in the national legal system (see Belgium and Commission v Genette, paragraph 91). In accordance with the Commission’s approach, the official concerned would be obliged to challenge the method whereby the Commission services calculated the number of additional pensionable years to which he is entitled only after the national or international pension fund making the transfer has definitively transferred the capital sum to the Commission, which would amount in practice to destroying the very essence of the official’s right under Article 11(2) of Annex VIII to the Staff Regulations to choose whether to transfer his pension rights or keep them in the original national or international pension fund.

61 Fourthly and lastly, it cannot be argued that, as the Commission contends, the proposals concerning additional pensionable years are only preparatory acts, on the ground that Article 11(2) of Annex VIII to the Staff Regulations requires the number of additional pensionable years to be calculated ‘on the basis of the capital transferred’.

62 In that regard, it should be noted first of all that it is clear from the wording of Article 11(2) of Annex VIII to the Staff Regulations that the institution concerned is to ‘determine’ the number of years of pensionable service initially ‘by means of general implementing provisions … taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer’ and that it then is to take into account the number of years of pensionable service thus determined to be credited under the European Union pension scheme ‘on the basis of the capital transferred’.

63 This wording is supported by Article 7 of the 2004 GIP and Article 7 of the 2011 GIP. Paragraph 1 of each of those articles provides that the number of pensionable years to be taken into account is to be calculated ‘on the basis of the transferable amount of the pension rights acquired … minus the amount of capital appreciation between the date on which the transfer application is registered and the date of the actual transfer’.

64 Article 7(2) of the 2004 GIP, and of the 2011 GIP, however, states that the number of years of pensionable service to be taken into account ‘is to be calculated … on the basis of the transferred amount’, according to the mathematical formula laid down in the first indent of Article 7(2).

65 It is therefore clear from the abovementioned provisions that proposals concerning additional pensionable years are to be calculated on the basis of the transferable amount on the date of registration of the transfer, as notified by the competent national or international authorities to the Commission services, minus where appropriate the amount of capital appreciation between the date on which the transfer application is registered and the date of the actual transfer, and that that difference in monetary terms should not be borne by the European Union pension scheme.

66 It follows from all the foregoing considerations that the second proposal concerning additional pensionable years is an act adversely affecting the applicant and that the claim for annulment is thus admissible. Consequently, the Commission’s preliminary plea of inadmissibility must be rejected.

Substance

67 In support of her claim for annulment against the second proposal concerning additional pensionable years, the applicant raises a single plea in law alleging ‘infringement of Article 11(2) of Annex VIII to the Staff Regulations [and] of Article 26(4) of Annex XIII to the Staff Regulations, infringement of acquired rights, breach of the principles of legal certainty and non-retroactivity [and] manifest error of assessment’.

Arguments of the parties

68 The applicant claims that Article 11(2) of Annex VIII to the Staff Regulations requires the Commission, if it intends to amend the actuarial values applicable to requests for the transfer of pension rights acquired in a Member State to the European Union pension scheme (‘transfer in’), to adopt new general implementing provisions. The Commission did not however adopt new general implementing provisions until 3 March 2011. The 2004 GIP, which were in force until that date, are therefore the only ones applicable to the transfer request.

69 The entry into force of Regulation No 1324/2008 on 1 January 2009 has no effect on the rates to be applied to the calculation of the number of pensionable years to be credited. That regulation amended the interest rate laid down in Article 8 of Annex VIII to the Staff Regulations, which is used exclusively in the event of transfer to a national pension scheme of the actuarial equivalent, namely the capital amount of pension rights acquired by an official within the European Union (‘transfer out') and is not therefore applicable in the event of a ‘transfer in’.

70 Furthermore, there is no provision of the Staff Regulations or of Regulation No 1324/2008 which requires the direct, automatic application of the interest rate laid down in Regulation No 1324/2008 when calculating the number of years of pensionable service to be credited for ‘transfers in’.

71 According to the applicant, pursuant to the five-yearly actuarial assessment under Article 83a(3) of the Staff Regulations, Regulation No 1324/2008 could not make any adjustments other than to the contribution rate to the EU pension scheme and the interest rate laid down by the provisions referred to in Article 2 of that regulation. By those measures the Council had consequently ‘exhausted’ all the rights and powers conferred on it by Article 83a of the Staff Regulations. The Council was not authorised to take any decision affecting the calculation referred to in Article 11(2) of Annex VIII to the Staff Regulations.

72 Moreover, the amended interest rate adopted by the Council could not be compulsorily applicable to all actuarial calculations simultaneously.

73 The applicant also claims that her rights were definitively fixed on the date of her transfer application, in other words on 3 November 2009, and should therefore have been defined in accordance with the 2004 GIP, which were the only ones in force on that date.

74 Lastly, the applicant considers that the retroactive application of the 2011 GIP was ‘unexpected’. The note of 25 May 2010 from the Director-General of the ‘Human Resources and Security’ Directorate-General and the note of 30 July 2010 announced that the new rules would not be applied retroactively.

75 The Commission counters that although Regulation No 1324/2008 could not amend Article 11(2) of Annex VIII to the Staff Regulations, since that provision does not refer to the interest rate to be used for calculating the actuarial equivalent, the general implementing provisions for Article 11(2) of Annex VIII to the Staff Regulations, on the other hand, use conversion coefficients which ‘directly depend on the rate in Article 8 of Annex VIII [to the Staff Regulations]’.

76 In the Commission’s opinion, the amendment of the interest rate laid down in Article 8 of Annex VIII to the Staff Regulations which took place on 1 January 2009 with the entry into force of Regulation No 1324/2008, had ‘necessarily’ led on the same date to amendment of those conversion coefficients. The conversion coefficients laid down by the 2004 GIP thus became ‘obsolete’ and ‘devoid of legal basis’ on 1 January 2009, independently of any formal repeal of the 2004 GIP.

Findings of the Tribunal

77 First of all, it must be noted that the claim of manifest error of assessment is not in any way substantiated, no supporting arguments being presented. It must therefore be rejected on the basis of Article 35(1)(e) of the Rules of Procedure.

78 In her single plea, the applicant claims in essence that Article 9, third paragraph, second sentence, and Article 9, fourth paragraph, first sentence, of the 2011 GIP are unlawful. According to the applicant, those provisions of the 2011 GIP state that the conversion coefficients in Annex 1 to the 2011 GIP, laid down in accordance with Regulation No 1324/2008, have applied since 1 January 2009, the date of entry into force of that regulation, although at that date Annex 2 to the 2004 GIP, which laid down different conversion coefficients applying from 1 May 2004, had not been formally amended in any way. The applicant submits that such formal amendment was required under Article 11(2) of Annex VIII to the Staff Regulations, and that application with retroactive effect to 1 January 2009 of the new conversion coefficients laid down in Annex 1 to the 2011 GIP, including to the cases of officials and other staff members whose request to ‘transfer in’ had been made before that date, infringes the principles of legal certainty and non-retroactivity.

79 To justify in law the third and fourth paragraphs of Article 9 of the 2011 GIP, the Commission submits in essence that Article 2 of Regulation No 1324/2008 rendered the 2004 GIP obsolete and automatically devoid of legal basis as regards the method for calculating the number of pensionable years to be taken into account.

– The effect of Regulation No 1324/2008 on the 2004 GIP

80 It is clear from the wording of Article 2 of Regulation No 1324/2008 that that regulation, with respect to officials and other servants of the European Union, has only two purposes.

81 The first is the determination, under Article 4(1) of Annex VIII to the Staff Regulations, of the rate applying to calculation of the pension rights of an official who resumes service within the European Union having previously completed a period of activity there. It is clear from the outset that such a purpose is not relevant in the present case.

82 The second is the determination of the rate to be used in order to determine the ‘actuarial equivalent’ of the retirement pension. It should be pointed out that that term is used in Article 11(1) of Annex VIII to the Staff Regulations in respect of ‘transfer out’ and not in Article 11(2) of that annex in respect of ‘transfer in’.

83 It should be noted that Article 11 of Annex VIII to the Staff Regulations draws a clear distinction between ‘transfer out’ in paragraph 1, on the one hand, and ‘transfer in’ in paragraph 2, on the other.

84 In the case of a ‘transfer out’, Article 11(1) of Annex VIII to the Staff Regulations provides that the official concerned is entitled to have ‘the actuarial equivalent of [the] retirement pension rights, updated to the actual date of transfer, within the European Union transferred’. However, in the case of a ‘transfer in’, Article 11(2) provides that the official concerned is entitled to have paid to the European Union ‘the capital value, updated to the date of the actual transfer, of pension rights acquired [under the national or international scheme to which he previously belonged]’. In the case of a ‘transfer out’, the sum of money transferred is the ‘actuarial equivalent’ of the rights acquired within the European Union; in the case of a ‘transfer in’, the sum of money transferred is the ‘updated capital sum’, namely an amount of money which actually represents the pension rights acquired by virtue of the previous activities of the official concerned under the relevant national or international pension scheme, updated to the actual date of transfer, in pursuance of Article 11(2), first subparagraph, of Annex VIII to the Staff Regulations (see, to that effect, judgment of 5 December 2013 in Case C‑166/12, Časta, paragraph 26).

85 The ‘actuarial equivalent’ referred to in Article 11(1) of Annex VIII to the Staff Regulations and the ‘updated capital value’ referred to in Article 11(2) are two separate legal concepts, each belonging to separate schemes.

86 The ‘actuarial equivalent’, under the rules of the Staff Regulations, is an autonomous concept used within the European Union pension scheme. It is defined in Article 8 of Annex VIII to the Staff Regulations as meaning ‘the capital value of the [retirement pension] benefits accruing to the official by reference to the mortality table referred to in Article 9 of Annex XII [to the Staff Regulations] and subject to 3.1% interest per annum, which rate may be revised in accordance with the rules laid down in Article 10 of Annex XII [to the Staff Regulations]’. The latest revision of the interest rate referred to in Article 8 of Annex VIII to the Staff Regulations was in fact made, under Article 10 of Annex XII to the Staff Regulations, by Regulation No 1324/2008, which reduced the interest rate from 3.5% to 3.1%.

87 ‘Updated capital value’, by contrast, is not defined by the Staff Regulations, nor do they indicate the method for calculating it, because the calculation of this value and the procedure for the review of such calculations, as consistently stated in case-law, are matters falling exclusively within the competence of the national or international authorities concerned (Belgium and Commission v Genette, paragraphs 56 and 57 and the case-law cited).

88 The Commission maintains none the less that the actuarial equivalent is also a ‘method’ of calculation which, as such, should be used not only in the case of a ‘transfer out’, where sums are paid out from the funds of the European Union pension scheme into those of a pension scheme of a Member State or of an international organisation, but also in the case of a ‘transfer in’, where, conversely, sums of money are paid into the funds of the European Union pension scheme.

89 As a method of calculation, the actuarial equivalent applies therefore, according to the Commission, in both the cases in which retirement pension rights are transferred. The Commission submits in that regard that Article 11(2) of Annex VIII to the Staff Regulations has, since the reform of the Staff Regulations in 2004, imposed a new condition on the national authorities concerned, namely that the capital value of all the contributions paid by an official who has recently entered the service of the European Union should be ‘updated to the date of the actual transfer’. In the view of the Commission, given that that new condition is contained in the Staff Regulations, it introduces for the national authorities concerned an obligation to update the capital sum according to the parameters laid down in the Staff Regulations, which include the interest rate as last amended by Regulation No 1324/2008.

90 The Commission’s view is not however justified in law.

91 It is clear from case-law that the ‘transfer in’ system comprises two separate administrative phases. The first phase consists in the determination of the updated capital value by the national or international authorities administering the pension scheme to which the person concerned belonged until entering the service of the European Union. That entire phase falls within the exclusive jurisdiction of the competent national or international authorities. The second phase, on the other hand, consists in the conversion, by the European Union institution concerned, of the updated capital value, as determined by the original national or international authorities, into years of pensionable service to be credited under the European Union pension scheme, on the basis of the rules of the European Union’s own pension scheme, including the rules contained in the general implementing provisions which each institution is required to adopt in respect of ‘transfers in’ (see, to that effect, Belgium and Commission v Genette, paragraphs 56 and 57).

92 The two decisions — the first concerning the calculation of the updated capital value and the second concerning the conversion of those assets into years of pensionable service — consequently fall within two different legal systems, and each must be dealt with by the courts having the relevant jurisdiction (judgment of 18 March 2004 in Case T‑204/01 Lindorfer v Council, paragraphs 28 to 31).

93 The fact that Article 11(2) of Annex VIII to the Staff Regulations has provided, since the reform of the Staff Regulations in 2004, that national or international authorities must update, to the actual date of transfer, the capital value of all the contributions paid by an official or staff member who has recently entered the service of the European Union clearly entails an obligation on those authorities, but it does not mean, in the absence of an express provision to that effect, that such updating should be carried out in the same way as for ‘transfers out’. On the contrary, as the Court held in Časta, paragraphs 25 and 26, Member States are free to apply either the ‘actuarial equivalent’ method, or the ‘flat-rate redemption value’ or other methods.

94 Accordingly, with regard, in the first place, to the calculation by the competent national or international authorities, with a view to a ‘transfer in’, of the updated capital sum, that capital sum is determined on the basis of the relevant national law and according to the detailed rules laid down by that law or, in the case of an international organisation, by its own rules, and not on the basis of Article 8 of Annex VIII to the Staff Regulations and according to the interest rate laid down in that provision. That is, moreover, what the Court of First Instance found, in paragraph 57 of Belgium and Commission v Genette, when it held that in the case of a ‘transfer in’ the decision concerning the calculation of the amount of the pension rights to be transferred falls within the relevant national legal system and must be dealt with solely by the national court (see, to that effect, Časta, paragraph 24).

95 It follows that Article 2 of Regulation No 1324/2008 must not be taken into consideration as an element of the method of calculating the capital sum corresponding to the pension rights acquired by an official or staff member before entering the service of the European Union and that it must not necessarily be taken into consideration by the national or international authorities concerned when they update that capital sum, which they are required to transfer.

96 Secondly, as regards the calculation by the services of the institution concerned of the number of additional years of pensionable service to be credited under the European Union pension scheme, which is a separate calculation from that of the updated capital sum, as is clear from paragraphs 91 to 93 above, it should be noted that neither Article 11(2) of Annex VIII to the Staff Regulations concerning ‘transfers in’ nor any other provision of the Staff Regulations expressly lays down an obligation to apply to the calculation of the number of additional years of pensionable service to be credited under the European Union pension scheme the interest rate referred to in Article 8 of that annex. It follows that the Commission’s assertion that the conversion coefficients, in the case of a ‘transfer in’, are ‘directly dependent’ on the interest rate laid down in Article 8 of Annex VIII to the Staff Regulations is not based on any provision of the Staff Regulations.

97 Furthermore, the Council cannot, by means of an implementing regulation adopted on the basis of Article 83a of the Staff Regulations, reduce the scope of the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations by calling into question the autonomy which the European Union legislature conferred on the institutions in that provision by giving them the power to determine by means of general implementing provisions the number of years of pensionable service in the case of a ‘transfer in’.

98 It is true that Article 7(2) of the 2004 GIP refers, for purposes of the calculation of the number of pensionable years to be taken into account on the basis of the capital actually transferred to the European Union pension scheme, to actuarial values V2 as provided for in the table in Annex 2 to the 2004 GIP, which are in turn, pursuant to that annex, ‘calculated on the basis of the parameters laid down in Annex XII to the Staff Regulations’. Those parameters include the rate laid down in Article 8 of Annex VIII to the Staff Regulations.

99 However, Annex 2 to the 2004 GIP sets out the actuarial values as calculated on the basis, inter alia, of the 3.5% rate laid down in Article 8 of Annex VIII to the Staff Regulations before it was amended by Regulation No 1324/2008. It was in fact those values which were taken into consideration by the Commission when drafting the proposal concerning additional pensionable years, although Article 8 of Annex VIII to the Staff Regulations had in the meantime been amended by Regulation No 1324/2008.

100 In those circumstances, in the context of the implementation of Article 11(2) of Annex VIII to the Staff Regulations and, in particular, for the purpose of updating the conversion coefficients in the case of a ‘transfer in’, in the light of the new rate of 3.1% laid down in Article 8 of Annex VIII to the Staff Regulations, following the entry into force of Regulation No 1324/2008, it was incumbent on the Commission, in accordance with Article 11(2), which refers to general implementing provisions for its implementation, and also in accordance with the principle of legal certainty, to amend the 2004 GIP and to draw up a new table of actuarial values. That is moreover what the Commission did in adopting the 2011 GIP, which contain in the annex new actuarial values, referred to as ‘conversion coefficients’ in those general implementing provisions, for the purpose of calculating additional pensionable years.

101 It should be added that Article 8 of Annex VIII to the Staff Regulations, as amended following the entry into force of Regulation No 1324/2008, could be rendered applicable to ‘transfers in’ only by means of the general implementing provisions which institutions were required to adopt according to Article 11(2) of Annex VIII to the Staff Regulations. The applicability of Article 8 in the present case stems from the reference to the ‘parameters laid down in Annex XII to the Staff Regulations’, which appears in the title of Annex 2 to the 2004 GIP, and that is because Annex XII itself refers, in Article 1(2), Article 10(2) and Article 12, to the rate laid down in Article 8 of Annex VIII to the Staff Regulations. The title of Annex 2 to the 2004 GIP serves to explain the method of calculation adopted by the Commission under its implementing powers, conferred by Article 11(2) of Annex VIII to the Staff Regulations, and it may be used only in order to interpret the legislative element contained in the table of actuarial values (see, as regards the normative value of the title of an article of a directive, the judgment of 3 April 2003 in Case C‑144/00 Hoffmann, paragraphs 37 to 40). In addition, such multiple cross-references, which are in many cases impenetrable, cannot prevail over the express data contained in the table of actuarial values in question without infringing the principle of legal certainty.

102 In conclusion, the Commission’s argument that the method for calculating the actuarial equivalent, laid down in Article 8 of Annex VIII to the Staff Regulations, should also necessarily be used for determining the updated capital value, or indeed the number of additional pensionable years, as provided in Article 11(2) of Annex VIII to the Staff Regulations, conflicts with the wording of the latter provision and with the intention of the European Union legislature, which sought to maintain in the Staff Regulations a clear distinction between the two events, ‘transfer in’ and ‘transfer out’ of pension rights, and consequently also between the concepts of updated capital value and actuarial equivalent.

103 In the light of the foregoing, the Commission’s view that Regulation No 1324/2008 rendered the 2004 GIP obsolete and automatically devoid of legal basis as regards the method for calculating the number of pensionable years to be credited is legally incorrect, since the justification for such a view disregards both the scope of that regulation and Article 11(2) of Annex VIII to the Staff Regulations.

104 It is therefore appropriate to consider whether the Commission was entitled to apply the new conversion coefficients contained in Annex 1 to the 2011 GIP to transfer requests made before the entry into force of the 2011 GIP on 1 April 2011.

– Retroactive application of the conversion coefficients contained in Annex 1 of the 2011 GIP

105 It must be recalled, as a preliminary point, that, 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 (judgment of 13 June 2012 in Case F‑31/10 Guittet v Commission, paragraph 47 and the case-law cited).

106 It must therefore be established whether, at the time when the new conversion coefficients laid down in the 2011 GIP became applicable, that is on 1 April 2011, the applicant was in a situation which arose and was fully constituted under the 2004 GIP. Only if that were the case could it in fact be acknowledged that the conversion coefficients laid down in the 2011 GIP were applied retroactively to the applicant. In that case, it would be necessary to examine the plea of illegality raised by the applicant and, in particular, the legality of the retroactive application of the conversion coefficients laid down in the 2011 GIP in the light of the principles of legal certainty and respect for legitimate expectations (see, to that effect, Guittet v Commission, paragraph 48).

107 In the present case, in order for the situation of an official or staff member who has made a request to ‘transfer in’ to have been fully constituted under the actuarial values V2 annexed to the 2004 GIP, it must be established that, by the end of the day preceding the date of entry into force of the new conversion coefficients laid down in the 2011 GIP, that is to say 31 March 2011 at the latest, the person concerned had accepted the proposal concerning additional pensionable years which had been made to him under the 2004 GIP.

108 In the present case, as noted in paragraph 21 of this judgment, the applicant did not formally accept or reject the first proposal concerning additional years of pensionable service. Her situation with regard to her right to ‘transfer in’, although it arose under the 2004 GIP, was therefore not fully constituted under the 2004 GIP at the time of the entry into force of the 2011 GIP, which were therefore not applied retroactively in this instance.

109 That being so, the applicant also cannot rely on an acquired right or failure to comply with the conditions for withdrawing administrative measures (see Cocchi and Falcione, paragraphs 42 and 43).

110 It follows from all the foregoing that the claim for annulment of the second proposal concerning additional pensionable years must be rejected as unfounded.

111 Therefore, the present action must be dismissed.

Costs

112 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

113 It is apparent from the reasons set out above that the applicant has been unsuccessful. However, it must be noted that the Commission’s conduct may have given rise to entirely legitimate questions and uncertainty in the applicant’s mind. First of all, it must be recalled that, in its decision rejecting her complaint, the Commission itself admitted that the second proposal concerning additional pensionable years was regarded as an act adversely affecting her. Although, in the present action, the Commission was entitled to raise an objection of inadmissibility requesting the Tribunal not to try the merits of the case, the fact remains that it claimed, on the contrary, that the proposal concerning additional pensionable years was ‘manifestly’ not an act adversely affecting the applicant. Furthermore, the Commission stated on three occasions, in the first proposal concerning additional pensionable years and in the notes of 5 May and 30 July 2010, that the 2004 GIP would be applied to requests for transfer registered before the date when the 2011 GIP came into force. Moreover, no mention was made in those notes of the potential significance, in that context, of the acceptance of the proposal concerning additional pensionable years by the officials and other staff members concerned. Since the circumstances of this case thus warrant application of the provisions of Article 87(2) of the Rules of Procedure, the Commission must be ordered to bear its own costs and, in addition, to pay the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Full Court)

hereby:

1. Dismisses the action;

2. Declares that the European Commission is to bear its own costs and orders it to bear the costs incurred by Ms Teughels.

Van Raepenbusch Rofes i Pujol Perillo

Barents Bradley

Delivered in open court in Luxembourg on 11 December 2013.

W. Hakenberg S. Van Raepenbusch