1.

Briefly, the applicants take the view that the defendant has infringed the Treaty and the provisions adopted for its implementation by applying Article 11 (2) of Annex VIII to the Staff Regulations, which is concerned with other circumstances, to their case by analogy. That provision assumes a transfer from employment with a national or international organization or undertaking to the service of the Community, whereas when the conditions of employment of establishment staff were repealed and replaced by the conditions of employment for temporary staff by Regulation No 2615/76 the applicants were already employed by the Commission. Even if the existence of a lacuna in the law regarding the computation of the time spent as establishment staff before the entry into force of Regulation No 2615/76 is admitted it ought to have been filled, in the view of the applicants, not by applying Article 11 (2) by analogy but by regarding all the years of service spent previously with the Community as pensionable years. That there is no such lacuna is shown, however, in my view by the express wording of the second paragraph of Article 2 (4) of Regulation No 2615/76, which clearly specifies that in calculating the years of pensionable service of establishment staff who are in service on the date of the entry into force of the regulation “only the number of years of service completed by staff as temporary staff within the meaning of Article 2 (d) shall be taken into account”. That transitional provision obviously makes clear the legal position as it would be even without it on the basis of the Community pension scheme. In that respect it must be remembered that according to Article 2 of the pension scheme laid down in Annex VIII to the Staff Regulations a retirement pension is payable on the basis of the total number of years of pensionable service acquired by an official. For the purpose of calculating such years of pensionable service Article 3 (c) provides that account is to be taken of periods of service in any other capacity in accordance with the Conditions of Employment of Other Servants of the Communities, with the express proviso that the servant has paid his share of contributions to the Community pension scheme in respect of such periods of service. According to the second subparagraph of Article 40 and Article 41 of the Conditions of Employment of Other Servants, to which Article 3 of Annex VIII refers, only periods of service as temporary staff of the Communities are to be taken into account for the purpose of calculating years of pensionable service as provided for in Annex VIII to the Staff Regulations, and as regards the funding of the social security scheme Article 83 of the Staff Regulations applies by analogy. Since establishment staff were not temporary staff prior to the entry into force of Regulation No 2615/76, it follows that Article 3 (c) of Annex VIII to the Staff Regulations is not applicable to them. That is supported in particular by the basic principle set out in Article 83 of the Staff Regulations which, as the Court has already found in the Landra case, ( 3 ) by providing that “benefits paid under this pension scheme shall be charged to the budget of the Communities” and that “officials shall contribute one third of the cost of financing this pension scheme”, establishes a close correlation between the acquisition of pension rights and the financing by the individual concerned of the fund constituted for the payment of the pension. Therefore, as the Court stressed in that case, contributions to a scheme outside the Communities cannot automatically give rise to the acquisition of Community pension rights unless a clear provision to the contrary exists. As regards establishment staff who prior to their being made temporary staff were affiliated to the Italian social security scheme, not only is there no clear provision to the contrary but the transitional provisions in the second paragraph of Article 2 (4) of Regulation No 2615/76 direct expressis verbis that only the number of years of service completed by staff as temporary staff is to be taken into account. Furthermore, since that provision is in accord with the principles on which the Community social security scheme is based, I cannot agree with the applicants when they claim that it ought not to be applied because it is incompatible with superior rules of Community law. Moreover, the allegation that Regulation No 2615/76 is unlawful was made only in the reply and must be regarded as a new issue raised out of time and as such to be rejected as inadmissible. Since that provision expressly forbids the Commission to recognize the applicants' years of service as establishment staff before the entry into force of Regulation No 2615/76, for which contributions were paid to the Italian social security scheme, as pensionable years of service within the meaning of Article 2 of Annex VIII to the Staff Regulations, it follows that the application by analogy of Article 11 (2) of the Community pension scheme to the applicants can similarly not be regarded as wrongful. In that respect it is also significant that the applicants had the choice with, it is agreed, knowledge of all the relevant computations between application of Article 42 of the Conditions of Employment of Other Servants or application by analogy of Article 11 (2) of the Community pension scheme or application of a combination of both provisions, and with knowledge of all the relevant computations and weighing the advantages and disadvantages might, but were not bound to, opt for the possibility provided by Article 11 (2). As the Court stated in Case 137/80 ( 4 ) Article 11 (2), which is intended to enable the Community scheme to be coordinated with the national schemes, seeks to ensure that Community officials may retain rights which they have acquired in their own State and to ensure that at the end of their careers account may be taken thereof by the Community scheme. As the Court held in the Landra case, ( 5 ) in view of that purpose there would be no justification “for refusing to grant this facility to officials who, from before their appointment, have had certain links with the Communities, when they are applied to officials who are recruited directly from outside and who are clearly referred to by the provision in question.” In this connection I cannot agree with the applicants, furthermore, when they claim that that finding, which relates to the coordination of two sets of pension rights acquired in different posts, is not applicable to their case in which employment has been continuous and the duties have not changed. In the light of that, they maintain, the principles on which the judgments in Deshormes ( 6 ) and Toledano Laredo ( 7 ) were based should be applied also in their case. Those cases were concerned, as the present case is, with the question whether years of service completed by the applicants in the Community originally as auxiliary staff should be taken into account in calculating pension rights. However, the special feature of those cases lay in the fact that although those concerned were engaged as auxiliary staff within the meaning of Article 3 of the Conditions of Employment of Other Servants, before their appointment as officials or employment as temporary staff they had done work corresponding to the posts described in Article 2 (a) and (b) of the Conditions of Employment. The Court took the fact that the applicants in those cases performed permanent public service duties for which a post was included in the list of posts as justification for placing them with regard to their years of pensionable service in spite of their contracts as auxiliary staff in the position in which they would have been had they been temporary staff from the outset. There can be no question of that in the present case. The status of the applicants before their appointment as temporary staff within the meaning of the new Article 2 (d) of the Conditions of Employment corresponded, on the contrary, exactly to that provided for in the old version of the Conditions of Employment for staff paid from appropriations in the research and investment budget. It was expressly provided, however, that such staff had no rights under the Community social security scheme, and therefore the judgments cited by the applicants are not relevant to the present case. Since the applicants in accordance with the Community regulations applicable at the time were affiliated to a national social security scheme and paid no contributions to the Community social security scheme, in accordance with the judgment in the Landra case ( 8 ) there can be no objection to the application by analogy of Article 11 (2) of the Community social security scheme. The fact that, as the applicants say, the contributions to the Italian social security scheme, in relation to salary, were not lower but to some extent even higher than the contributions to the Community social security scheme is no reason for not making such an application. Their argument overlooks the fact that coordinating the national social security systems with the Community social security system may involve not so much the contributions which are paid as the capital represented by the pension rights which those concerned have acquired under the national system at the time of transfer. The actuarial equivalent of acquired pension rights, with which the present case is solely concerned, is, as inter alia the judgment in the Bodson case ( 9 ) shows, the result of a complicated computation done at the national level. In order to reflect the close correlation between the acquisition of Community pension rights and the financing of the fund built up to pay the pension, the resulting sum must then be translated into pensionable years of service with the consequence that because of the different circumstances which are taken into account in the computation the results may naturally differ from case to case. With regard to the calculation of their years of pensionable service the applicants further put forward in the reply the alternative submission that the number of years of service to be taken into account for the purposes of Article 11 (2) of Annex VIII to the Staff Regulations in accordance with the general implementing provisions for that article, in particular Article 3, has been calculated on the basis of their annual basic salary expressed in Belgian francs with the unlawful application of a weighting of 157.8 and thus considerably reduced. I agree with the Commission that that objection, which is directed against the method of calculating the years of pensionable service and not against the application by analogy of Article 11 (2), was raised neither in the complaint made pursuant to Article 90 (2) of the Staff Regulations nor in the action. It is therefore to be regarded as a new issue raised out of time and thus must be rejected as inadmissible pursuant to Article 42 of the Rules Procedure. Incidentally I consider the objection to be unfounded in any case having regard in particular to the judgment in Benassi, ( 10 ) which was likewise concerned with the definition of the basic salary for the purpose of applying Article 11 (2) of Annex VIII to the Staff Regulations.