ORDER OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

11 December 2007

Case F-60/07

Joaquin Martin Bermejo

v

Commission of the European Communities

(Civil service – Official – Pensions – Transfer of pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme – Calculation of years of pensionable service – Article 11(2) of Annex VIII to the Staff Regulations – Repeal of provisions concerning the monetary conversion of the amount transferred)

Application: brought under Articles 236 EC and 152 EA, in which Mr Martin Bermejo seeks annulment of the Commission’s decision of 27 September 2006 fixing the additional years of pensionable service resulting from the transfer of the pension rights he had acquired before entering the service of the Communities.

Held: The action is dismissed as partly manifestly inadmissible and partly manifestly unfounded. Each party is to bear its own costs.

Summary

1. Procedure – Admissibility of actions – Assessment by reference to the rules in force when the application was lodged

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

2. Officials – Actions – Prior administrative complaint – Same subject-matter and legal basis

(Staff Regulations, Arts 90 and 91)

3. Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme

(Staff Regulations, Annex VIII, Art. 11(2); Council Regulation No 1103/97, Art. 3)

1. Although the rule laid down in Article 76 of the Rules of Procedure of the Civil Service Tribunal that the Tribunal may, by way of an order, dismiss an action which appears manifestly bound to fail is a procedural rule which, as such, applies to all proceedings pending before the Tribunal at the time when it enters into force, the same is not true of rules on the basis of which the Tribunal may, under that article, regard an action as manifestly inadmissible, and which may only be those applicable on the date when the action is brought.

(see para. 25)

2. If they are to be admissible, the claims raised in an action may contain only heads of claim based on the same matters as those raised in the complaint, and a plea before the Community judicature must have already been raised in the pre-litigation procedure.

The rule of harmony between a complaint and the action which follows must not, however, be applied restrictively but should be considered with an open mind. In particular, the substance of the complaint is not intended to be strictly and definitively binding for the purposes of the contentious stage of the procedure, provided always that neither the legal basis nor the subject-matter of the complaint is changed, and the heads of claim raised in the complaint may be developed by pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

(see paras 35-37, 39)

See:

C-62/01 P Campogrande v Commission [2002] ECR I‑3793, para. 35

T-4/92 Vardakas v Commission [1993] ECR II‑357, para. 16; T‑496/93 Allo v Commission [1995] ECR-SC I‑A‑127 and II‑405, para. 27; T-4/96 S v Court of Justice [1997] ECR II‑1125, para. 99; T-312/02 Gussetti v Commission [2004] ECR-SC I‑A‑125 and II‑547, paras 47 and 48; T-144/03 Schmit v Commission [2005] ECR-SC I‑A‑101 and II‑465, para. 90

3. The characteristic of a new rule is that it establishes a distinction between persons who were covered by the previous rule and persons who are covered by the new rule from its entry into force. Such a distinction does not, as such, breach the principle of non-discrimination, otherwise any amendment of the law would be rendered impossible. In so far as it was open to the Commission, without this being precluded by the legislation on the introduction of the euro, to amend the General Provisions for Implementing Article 11(2) of Annex VIII to the Staff Regulations in order to define the rules for applying the provisions of the Staff Regulations which came into force on 1 May 2004, the difference in treatment between officials who benefited from a monetary conversion mechanism which was repealed by those General Implementing Provisions and officials who, as a result of that repeal, were denied that mechanism cannot as such represent an infringement of the principle of equality, in the absence of any detailed criticism of the legal effects of the rules in question over time or on the situation of the officials subject to them.

(see paras 55-56)

See:

F-115/05 Vienne and Others v Parliament [2007] ECR-SC I-A-1-0000 and II‑A‑1-0000, para. 59