JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 January 2014

Philippe Guinet

v

European Investment Bank (EIB)

‛Civil service — Staff of the EIB — Pension scheme — Transfer of pension rights — Compensation for the disadvantages resulting from the delay in the transfer of the pension rights — Condition of effective transfer of pension rights acquired in a scheme other than that of the EIB — Principle of equal treatment’

Application:

under Article 270 TFEU, in which Mr Guinet seeks annulment of the decision of the European Investment Bank (EIB) to reject his request to recalculate his pension rights.

Held:

The action is dismissed. Mr Guinet is to bear his own costs and is ordered to pay three-quarters of the costs incurred by the European Investment Bank. The European Investment Bank is to bear a quarter of its own costs.

Summary

Officials — Staff of the European Investment Bank — Administration’s duty to have regard for the welfare of officials — Principle of sound administration — Scope — Obligation to take measures in the interest of the service where there is no legal basis — None

Social security — Migrant workers — Old-age and survivor’s insurance — National of a Member State employed by an EU body — Pension rights acquired before entry into the service of the Union body — Transfer to the Union body’s scheme — National rules not allowing for the right to transfer — Infringement of EU law — None — Existence of an obstacle to the freedom of movement of persons — None

Officials — Staff of the European Investment Bank — Pensions — Pension rights acquired before entry into the service — Transfer to the EIB scheme — Staff member not entitled to transfer rights in the absence of an agreement between the EIB and the Member State concerned — No possibility for the staff member to purchase additional insurance years — Breach of the principle of equal treatment vis-à-vis staff members having that option — None

In order to determine whether the requirement to state grounds laid down in the Staff Regulations has been satisfied, it is desirable to take into consideration not only the documents giving notice of the decision but also the circumstances in which that decision was taken and brought to the knowledge of the official concerned. It is thus possible to regard the reasons given for a decision as sufficient if it was adopted in a context known to the official concerned which enable him to understand its scope. Furthermore, awareness by the official concerned of the context in which a decision was adopted may constitute a statement of reasons for that decision. (see para. 44) See: 30 November 2010, F‑97/09 Taillard v Parliament, para. 33; 15 February 2011, F‑81/09 Marcuccio v Commission, para. 40 7 July 2011, T‑283/08 P Longinidis v Cedefop, para. 68; 24 October 2011, T‑213/10 P P v Parliament, para. 30 and the case-law cited therein

There is a breach of the principle of equal treatment only where two categories of persons whose factual and legal situations are not essentially different receive different treatment or where different situations are treated in the same way. The retroactive application provided for in the internal rules of the European Investment Bank, which forms part of the mechanism allowing additional insurance years to be purchased, is simply a way of neutralising the detrimental effects of any delay, for which the staff member concerned is not responsible, in the transfer of his pension rights vis-à-vis the date when he entered the service of the European Investment Bank. Such negative effects arise in particular from the increase in the age of the person concerned and his career progression, which make it more expensive to purchase an additional insurance year. Both the right to be granted retroactive application and the amount that it represents are thus indissociably associated with the transfer of the person’s pension rights. It follows that retroactive application is not an independent recalculation of pension rights under the EIB’s pension scheme for which a staff member who has not transferred his pension rights acquired under a national scheme might qualify. Consequently, as far as retroactive application is concerned, the factual and legal situation of a person who has not been able to transfer pension rights is not the same as that of members of the EIB’s staff whose pension rights paid into the EIB pension scheme may have been negatively affected by delays, for which those staff were not responsible, in the transfer of those pension rights. (see paras 57, 60, 62, 63) See: 15 March 1994, T‑100/92 La Pietra v Commission, para. 50 26 September 2011, F‑29/06 Arnaldos Rosauro and Others v Commission, para. 157

As regards the coordination of social security systems between the Member States, neither the FEU Treaty nor Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, nor Regulation No 883/2004 on the coordination of social security systems which replaced it, provides for rules on the transfer of the capital value representing previously-acquired pension rights; instead, they are based on the principles of aggregation of periods and the apportionment of benefits, as is clear from Article 48 TFEU as implemented by those regulations. It is thus not apparent from Article 45 TFEU that there is any obligation for a Member State to provide for the possibility for a member of the European Investment Bank’s staff to transfer the capital value representing previously-acquired pension rights to the EIB pension scheme, or that there is any obligation to conclude an agreement to that effect. Consequently, the absence of such a possibility for EIB staff cannot be considered to be an obstacle to the free movement of workers for the purposes of Article 45 TFEU. (see paras 76-78) See: 4 July 2013, C‑233/12 Gardella, paras 33 and 35

The duty to have regard for the welfare of officials and the principle of sound administration mean that when it determines the situation of an official or other member of staff, even in the exercise of a wide discretion, the competent authority must take into consideration all the factors likely to determine its decision; in doing so it must take into account not only the interest of the service but also the interest of the official or other member of staff concerned. However, the duty to have regard for the welfare of officials, the duty to act in good faith and the duty of sound administration cannot provide grounds for the administration to take measures in the applicant’s interest where there is no legal basis for doing so. It follows that, where there is no legal basis for granting one of its staff an advantage relating to the purchase of additional insurance years, or where there is no legal obligation to compensate for the financial disadvantage suffered by that staff member because of the absence of a transfer agreement between the European Investment Bank and the Member State in which he acquired his pension rights, the EIB cannot be criticised for not having granted that advantage, in breach of its duty to have regard for the welfare of staff and to act in good faith and its duty of sound administration. (see paras 83, 84) See: 19 February 2013, F‑17/11 BB v Commission, para. 61