JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

11 December 2012

Case F‑122/10

Giorgio Cocchi and Nicola Falcione

v

European Commission

(Civil service — Officials — Pension — Transfer of pension rights acquired under a national pension scheme — Withdrawal of a transfer proposal — Act not having conferred personal rights or other similar advantages)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Cocchi and Mr Falcione seek, first, annulment of the decisions whereby the European Commission withdrew its proposals made following the applicants’ request to transfer pension rights acquired under a national pension scheme and, second, an order that the Commission pay them damages.

Held: The Commission’s decisions are annulled. The remainder of the application is dismissed. The Commission is to bear its own costs and is ordered to pay one third of the costs incurred by the applicants. The applicants are to bear two thirds of their costs.

Summary

1. Officials — Pensions — Pension rights acquired before entry into the service of the Union — Transfer to the Union scheme — Obligations of the Member States and of the institution concerned — Scope — Obligation of the institution to pay the official the capital representing the rights acquired under the national scheme — None

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

2. Actions brought by officials — Acts adversely affecting an official — Definition — Proposal to transfer to the Union scheme the pension rights acquired before entry into the service of the Union — Included — Withdrawal of the proposal before its acceptance by the official — Act adversely affecting an official

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

3. Officials — Acts of the administration — Withdrawal — Unlawful acts — Conditions — Observance of a reasonable time and of the principle of protection of legitimate expectations — Not possible to claim a legitimate expectation that a manifestly unlawful act will be maintained — Exception — Conduct of the institution giving rise to belief in the lawfulness of the act

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

4. Judicial proceedings — Examination of the substance before examination of admissibility — Whether permissible

1. It follows from Article 11(2) of Annex VIII to the Staff Regulations that where an official submits a request for transfer of his pension rights pursuant to that provision and his request satisfies the conditions laid down in that article, the body administering the retirement scheme with which the official previously acquired pension rights, and then the institution to which he has submitted his request to transfer his pension rights, are successively required, as regards the former, to calculate the amount of the capital representing the rights which the official has acquired and, as regards the latter, to submit to the official a proposal setting out the result in years of pensionable service that any transfer will generate.

However, neither that provision nor any other measure or principle authorises the institutions to receive from national pension schemes the capital representing the pension rights which an official has acquired after entering the service of the institutions and to pay that capital, which cannot be taken into account to credit years of pensionable service in the pension scheme provided for in the Staff Regulations, to that official.

(see paras 36, 69)

2. The proposal whereby an institution informs an official of the result in terms of additional years of pensionable service that any transfer of his pension rights will generate is an act adversely affecting that official.

On the other hand, so long as the official has not given his consent to the proposal made to him by the institution, such a proposal does not confer on him either a personal right or a similar advantage. In such a hypothesis, it is open to the institution to withdraw that proposal without any condition as to time-limit, as such withdrawal is not an act adversely affecting the official. The power conferred on an official by Article 11(2) of Annex VIII to the Staff Regulations to transfer the capital representing the pension rights which he acquired before entering the service of the Union is intended to make available a right the exercise of which depends solely on his own choice.

However, as from the date on which the official expresses his consent to the proposal, he is recognised by the institution to have personal rights, so that the withdrawal of that proposal must necessarily be analysed as adversely affecting him.

(see paras 37, 41-43)

See:

20 October 1981, 137/80 Commission v Belgium, para. 13

3. Where acts which have conferred personal rights or similar advantages are unlawful, the institution which adopted them is, as a general rule, entitled to withdraw them within a reasonable time, with retroactive effect. None the less, its right to do so must be limited by the need to respect the legitimate expectations of the beneficiaries of the acts, who were able to rely on the lawfulness of the acts. In that case, such acts cannot be withdrawn with retroactive effect, even within a reasonable time. None the less, an official cannot rely on the principle of legitimate expectations in order to challenge the withdrawal of an act adopted without any legal basis.

However, the withdrawal of an unlawful proposal to fix years of pensionable service following a request to transfer pension rights and calculated approximately by the institution, which failed to point out their non-definitive nature, constitutes a breach of the principle of legitimate expectations where the person to whom the act is addressed is not a lawyer familiar with the relevant rules of the Staff Regulations and where the illegality is not manifest, so that the official concerned was able to rely on the apparent legality of the act.

(see paras 53, 56-59, 67, 74)

See:

27 September 2006, T‑416/04 Kontouli v Council, para. 161

12 May 2010, T‑491/08 P Bui Van v Commission, para. 44

4. The Courts of the European Union may assess whether, in the interest of the proper administration of justice, an action must, in any event, be dismissed on the merits without there being any need to rule on its admissibility.

(see para. 66)

See:

26 February 2002, C‑23/00 P Council v Boehringer, paras 51 and 52