ORDER OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Third Chamber)

20 July 2016

Kerim Esen

v

European Commission

‛Civil service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Pension rights acquired before entering the service of the European Union under a national pension scheme — Transfer to the EU pension scheme — Proposal concerning additional pensionable years — Plea of inadmissibility — Concept of an act adversely affecting an official — Article 83 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Kerim Esen seeks annulment of the decision of the appointing authority of the European Commission of 25 September 2013, by which the latter definitively fixed, under the EU pension scheme, the pension rights acquired by the applicant before his entry into the service of the EU.

Held:

The action is dismissed as inadmissible. Mr Kerim Esen is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Actions brought by officials — Act adversely affecting an official — Concept — Proposal concerning additional pensionable years with a view to a transfer to the EU pension scheme of pension rights acquired before entry into the service of the EU — Not included — Decision to credit pensionable years adopted following transfer of the capital representing acquired pension rights — Included

(Art. 270 TFEU; Staff Regulations, Art. 91(1) and Annex VIII, Art. 11(2))

In the context of the procedure for transferring pension rights laid down in Article 11(2) of Annex VIII to the Staff Regulations, it is the decision adopted by the appointing authority, once the capital representing the pension rights acquired by the official concerned before entering the service of the EU has been transferred, which constitutes the act having an adverse effect that may be the subject of an action under Article 270 TFEU and Article 91(1) of the Staff Regulations. However, a proposal concerning additional pensionable years, were it to be accepted by the person concerned, does not constitute an act having an adverse effect that may the subject of an action under Article 270 TFEU and Article 91(1) of the Staff Regulations.

An official cannot be credited with additional pensionable years until he has given his consent for the procedure for transferring to the EU pension scheme the capital representing the pension rights he acquired earlier under the national pension fund concerned to move forward, consent given in the light of the proposal concerning additional pensionable years made by the administration on the basis of the provisional amount of capital reported by that fund.

In that regard, at the stage of the proposal concerning additional pensionable years, the institution in question simply undertakes to apply correctly Article 11(2) of Annex VIII to the Staff Regulations and the general implementing provisions to the situation of the concerned party. That obligation on the institution flows directly from the provisions of the Staff Regulations at issue, even in the absence of any express commitment by the institution.

Thus, it is not possible to infer from such a commitment, contained in a proposal concerning additional pensionable years, any new obligation incumbent on the institution in question or, consequently, any alteration in the legal situation of the person concerned, inter alia because, even where the person concerned gives his consent to the transfer to the EU pension scheme of pension rights he acquired under another scheme, the institution which issued the proposal is under no corresponding obligation, after the transfer of the amount of capital reported by the national pension fund is completed, to credit automatically to the person concerned the number of pensionable years stated in the initial proposal, in the light of which the person concerned confirmed his intention to transfer that capital to the EU pension scheme.

(see paras 22-26)

See:

Judgments of 13 October 2015 in Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 50, 52, 53 and 74; Commission v Cocchi and Falcione, T‑103/13 P, EU:T:2015:777, para. 66, and Teughels v Commission, T‑131/14 P, EU:T:2015:778, paras 37, 46, 48, 49, 58 and 70