JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

24 September 1996

Case T-185/95

Giovanni Sergio

v

Commission of the European Communities

‛Officials — Transfer of pension rights — General provisions for implementing the Staff Regulations — Period allowed for the submission of a request’

Full text in French II-1215

Application for:

annulment of the Commission's decision rejecting the applicant's request for a transfer of pension rights.

Decision:

Application dismissed.

Abstract of the Judgment

After having worked for an Italian administrative authority from 22 November 1961 to 21 November 1964, the applicant entered the service of the Commission in 1967 and was established on 1 February 1971.

Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities provides that an official who enters the service of the Communities is entitled ‘on becoming established’ to pay to the Communities either the actuarial equivalent or the flat-rate redemption value of retirement pension rights previously acquired, so that those rights may be taken into account in the Community pension scheme. Article 11(3) provides that paragraph 2 is also to apply to an official who is ‘reinstated following expiry of a period of leave on personal grounds under Article 40 of the Staff Regulations’.

The rules governing the exercise of this right are laid down in general provisions, adopted by the Commission in 1969 and amended on several occasions. The version of the general provisions implementing Article 11(2) of Annex VIII to the Staff Regulations in force at the material time were published in the Courrier du personnel of 19 October 1977 (‘the 1977 general provisions’).

Article 1 provided as follows:

‘An official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking shall have the right, on becoming established with that Community, to pay to it either:

— the actuarial equivalent of retirement pension rights acquired by him ... ; or

— the sums repaid to him.

The request must be made within a period of six months from:

(i) the date of notification of establishment of the official,

(ii) the date on which transfer becomes possible,

(iii) the date of entry into force of the provisions in question,

whichever is the most recent. ’

From 21 June 1976 to 11 December 1978 the applicant was on leave on personal grounds.

On 2 March 1978 the Istituto Nazionale Italiano della Previdenza Sociale (INPS), the Italian institution covered by the Italian public pension scheme, and the European Communities concluded an agreement concerning the transfer to the Community scheme of pension rights acquired in the INPS (‘the INPS Agreement’) The text of that agreement was published when the applicant was still on leave on personal grounds.

On 29 July 1994 the applicant submitted a request under Article 90 of the Staff Regulations for recognition of his right to transfer his pension rights acquired in Italy from 22 November 1961 to 21 November 1964 and for information concerning the conditions for a voluntary repayment and possible transfer of his pension rights acquired by virtue of his studies during leave on personal grounds.

Since no reply to his request was received within the four-month period provided for in Article 90(2) of the Staff Regulations, on 28 February 1995 he submitted a complaint against the implied decision rejecting his request. His complaint was rejected on 10 July 1995.

Admissibility

The Court of First Instance has no jurisdiction to issue directions when reviewing the legality of an act based on Article 91 of the Staff Regulations, so that it must declare inadmissible the applicant's request that the Court recognize his right to transfer his pension rights acquired with a national social security body (paragraphs 15 to 17).

See: T-558/93 G v Commission [1994] ECRSC II-875, para. 26

Annulment of the contested decision

The six-month time-limit laid down in the 1977 general provisions for requesting the Community administration to transfer pension rights is reasonable and allows a sufficient period for consideration, except where the person concerned is in an exceptional situation the causes of which are not attributable to him. The period for making a request runs from the moment when the person concerned is aware of the exact contents of the administrative measures entitling him to submit a request for transfer of his pension rights (paragraphs 36 and 37).

See: T-70/91 Moretto v Commission [1992] ECR II-2321, para. 21; T-100/92La Pietra v Commission [1994] ECR II-275, paras 30 to 32

In the present case, there was nothing to prevent the applicant from submitting his request for a transfer within six months from the moment when, on his own admission, in 1988 at the latest, he actually became aware of the 1977 general provisions and the INPS agreement. If his request had been rejected, he could have used the means of redress open to him. Consequently, the applicant's decision not to submit a formal request for transfer of his pension rights at that time was the result of his own free choice, which precludes a finding that he was in an exceptional situation the causes of which are not attributable to him (paragraph 39).

When an official has allowed the period for bringing an action or submitting a complaint against a decision adversely affecting him to expire, a new judgment concerning the question dealt with by the decision adversely affecting him cannot be relied upon in order to reopen the period in question (paragraph 40).

See: 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73. 116/73, 117/73. 123/73, 132/73, 135/73, 136/73 and 137/73 Schots-Kortner and Others v Council, Commission and Parliament [1974] ECR 177, paras 34 to 38; 125/87 Brown v Court of Justice [1988] ECR 1619, paras 14 and 15

That case-law is transposable mutatis mutandis to the present case, so that the judgments in La Pietra and Moretto cannot have the effect of reopening the period for submitting an application for transfer (paragraph 41).

See: La Pietra v Commission, cited above, paras 30 to 32

The request submitted on 29 July 1994 must therefore be regarded as having been made outside the period of six months provided for in the 1977 general provisions and, consequently, as out of time (paragraph 42).

The judgment in Moretto leaves no doubt whatsoever as to the straightforward nature of the six-month period. It follows that, on any view, any error of law on the part of the applicant could not be regarded as excusable with effect from the date on which he became aware of that judgment (paragraph 43).

See: Moretto v Commission, cited above, paras 24 to 26

Operative part:

1. The application is dismissed as inadmissible in so far as it seeks the issue of directions to the Commission.