Judgment of the Court (Second Chamber) of 15 December 1977. - Herbert Bruns v Commission of the European Communities. - Case 95-76.



European Court reports 1977 Page 02401

Greek special edition Page 00771

Portuguese special edition Page 00881



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - PENSION - TRANSITIONAL SYSTEM - PENSION RIGHTS - ACQUISITION - PAYMENT OF CONTRIBUTIONS AS THE BASIS THEREOF - INTEREST - CONSIDERATION OF INTEREST - ABSENCE - LOSS OF INCOME FROM THE INVESTMENT OF CONTRIBUTIONS - COMPENSATION OF THE FUND - REFUSAL

( STAFF REGULATIONS OF OFFICIALS , ANNEX VIII , ARTICLES 48 AND 49 ; STAFF MEMORANDUM OF THE COMMISSION NO 16-470/58-F , OF 19 JUNE 1958 )

Summary

IT IS CLEAR FROM THE SECOND PARAGRAPH OF ARTICLE 48 AND THE FIRST PARAGRAPH OF ARTICLE 49 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS THAT , ON THE ONE HAND , THE PAYMENT OF CONTRIBUTIONS IS SUFFICIENT TO CONFER FULL PENSION RIGHTS WITHOUT THE NEED TO PAY INTEREST AND THAT , ON THE OTHER , THOSE RIGHTS ARE ACQUIRED WITHOUT THE FUND ' S BEING COMPENSATED FOR THE LOSS OF THE INVESTMENT INCOME FROM THE CONTRIBUTIONS WHICH IT WOULD HAVE RECEIVED IF THE CONTRIBUTIONS HAD BEEN PAID WITHIN THE PERIOD LAID DOWN IN STAFF MEMORANDUM NO 16-470/58-F , OF 19 JUNE 1958 .

Parties

IN CASE 95/76

HERBERT BRUNS , A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 84 LINDENALLEE , 5000 COLOGNE 51 , REPRESENTED AND ASSISTED BY ERNEST ARENDT , OF THE LUXEMBOURG BAR , 34/B RUE PHILIPPE II , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

APPLICANT ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JURGEN UTERMANN , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

IN THE MATTER OF THE CALCULATION OF THE APPLICANT ' S PENSION ,

Grounds

1 THE APPLICANT , A FORMER OFFICIAL OF THE COMMISSION , WHO ENTERED THE SERVICE OF THE COMMISSION IN 1958 , REQUESTED AND OBTAINED ON THE TERMINATION OF HIS SERVICE IN 1969 THE SEVERANCE GRANT FOR WHICH PROVISION IS MADE IN ARTICLE 12 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS .

SUBSEQUENTLY HE REQUESTED THE COMMISSION TO GRANT HIM A PENSION AND REPAID THE SEVERANCE GRANT .

THE APPLICANT ' S PENSION RIGHTS FORMED , AS REGARDS THE SUBSTANCE , THE SUBJECT-MATTER OF CASE 133/73 WHICH , FOLLOWING A SETTLEMENT , WAS REMOVED FROM THE REGISTER OF THE COURT BY AN ORDER OF 28 MAY 1975 .

2 IN THE COURSE OF THE NEGOTIATION OF THE ABOVEMENTIONED SETTLEMENT THE AGENT OF THE COMMISSION ADDRESSED TO THE APPLICANT ' S LAWYER A LETTER DATED 1 APRIL 1974 TO WHICH WAS ANNEXED A DRAFT SETTLEMENT WHICH , ACCORDING TO THE LETTER , ' HAS YET TO BE SIGNED BY MR A . BORSCHETTE , MEMBER OF THE COMMISSION ' , TOGETHER WITH A STATEMENT OF ACCOUNT CONCERNING THE APPLICANT ' S PENSION .

THAT ACCOUNT INCLUDED A REDUCTION IN THE APPLICANT ' S PENSION RIGHTS PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 49 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS IN PROPORTION TO THE SUMS WHICH HE HAD WITHDRAWN BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS , THAT IS , 1 JANUARY 1962 , FROM HIS ACCOUNT UNDER THE TEMPORARY JOINT PROVIDENT SCHEME WHICH FORMED THE SUBJECT-MATTER OF STAFF MEMORANDUM NO 16-470/58-F ISSUED BY THE COMMISSION AND WHICH HE HAD USED TO MAINTAIN HIS PENSION RIGHTS IN HIS COUNTRY OF ORIGIN .

3 THE CALCULATION OF THAT PROPORTIONAL REDUCTION OF THE APPLICANT ' S PENSION RIGHTS BECAME THE SOLE POINT AT ISSUE BETWEEN THE PARTIES IN THE COURSE OF THE NEGOTIATIONS UNDERTAKEN WITH A VIEW TO A SETTLEMENT AND IT IS THE SOLE POINT OF SUBSTANCE IN THE PRESENT PROCEEDINGS .

THAT POINT MUST BE RESOLVED ON THE BASIS OF THE AIMS AND OF THE WORDING OF THE SAID STAFF MEMORANDUM NO 16 AND OF THE FIRST PARAGRAPH OF ARTICLE 49 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS .

4 THE SAID STAFF MEMORANDUM NO 16 PROVIDED INTER ALIA AS FOLLOWS :

' CONCERNING : SOCIAL SECURITY AND PROVIDENT SCHEME

PENDING THE ADOPTION IN THE STAFF REGULATIONS OF PROVISIONS APPLICABLE TO THE STAFF WITH REGARD TO SOCIAL SECURITY THE COMMISSION HAS ESTABLISHED A MUTUAL INSURANCE SCHEME WHICH IS TO OPERATE ON THE FOLLOWING BASES :

. . .

. . .

PENSIONS

A - PENDING THE ESTABLISHMENT OF A PENSION SCHEME A PROVIDENT FUND SHALL BE SET UP TO WHICH OFFICIALS SHALL BE BOUND TO CONTRIBUTE FROM THE DATE WHEN THEY TAKE UP THEIR DUTIES .

THIS PROVIDENT FUND SHALL BE FINANCED BY :

- A CONTRIBUTION OF 7.5 % DEDUCTED EACH MONTH FROM THE SALARY OF OFFICIALS ;

- A PAYMENT BY THE INSTITUTION AMOUNTING TO 15 % OF THE SALARY .

. . .

THE PROVIDENT FUND SHALL MAINTAIN AN INDIVIDUAL ACCOUNT IN THE NAME OF EACH OFFICIAL IN WHICH THERE SHALL BE ENTERED :

- ON THE CREDIT SIDE , THE CONTRIBUTIONS OF THE OFFICIAL AND OF THE INSTITUTION TOGETHER WITH THE ANNUAL COMPOUND INTEREST ;

- ON THE DEBIT SIDE , ANY PAYMENTS MADE BY THE INSTITUTION IN ORDER TO MAINTAIN THE OFFICIAL ' S PENSION RIGHTS IN HIS FORMER ADMINISTRATION OR INSTITUTION TOGETHER WITH THE AMOUNT DEDUCTED TO COVER THE RISK OF DEATH .

AT THE TIME WHEN THE PENSION SCHEME IS SET UP THE AMOUNT IN THE INDIVIDUAL ACCOUNTS SHALL BE TRANSFERRED TO THE PENSION FUND IN ACCORDANCE WITH DETAILED RULES TO BE ESTABLISHED AT THAT TIME .

UNTIL THEN , IF AN OFFICIAL LEAVES THE SERVICE OF THE COMMUNITY FOR A REASON OTHER THAN DEATH BEFORE THE PENSION SCHEME IS ESTABLISHED HE SHALL BE ENTITLED TO REIMBURSEMENT OF THE SUM STANDING TO THE CREDIT OF HIS ACCOUNT WITH THE PROVIDENT FUND , INCLUDING INTEREST . '

5 THE FIRST PARAGRAPH OF ARTICLE 49 OF ANNEX VIII TO THE STAFF REGULATIONS , WHICH FORMS PART OF THE TRANSITIONAL PROVISIONS OF CHAPTER 8 OF THAT ANNEX , READS AS FOLLOWS :

' WHERE AN OFFICIAL HAS EXERCISED HIS OPTION TO WITHDRAW FROM HIS ACCOUNT WITH THE TEMPORARY JOINT PROVIDENT SCHEME OF THE INSTITUTIONS OF THE COMMUNITIES SUMS WHICH HE WAS REQUIRED TO CONTRIBUTE IN HIS COUNTRY OF ORIGIN IN ORDER TO MAINTAIN HIS PENSION RIGHTS THERE , HIS PENSION RIGHTS SHALL , IN RESPECT OF THE PERIOD WHEN HE WAS A MEMBER OF THE TEMPORARY PROVIDENT SCHEME , BE REDUCED IN PROPORTION TO THE SUMS WITHDRAWN FROM HIS ACCOUNT . '

6 IT IS CLEAR FROM THE ABOVEMENTIONED STATEMENT OF ACCOUNT THAT WHEN THE COMMISSION EFFECTED THE CALCULATION IN ACCORDANCE WITH THAT PROVISION IT TOOK INTO CONSIDERATION THE CREDIT BALANCE STANDING TO THE ACCOUNT AT 31 DECEMBER 1961 , WHICH CONSISTED OF THE CONTRIBUTIONS PAID BY THE APPLICANT AND BY THE INSTITUTION WHICH EMPLOYED HIM , BUT DID NOT TAKE INTO CONSIDERATION THE INTEREST ON THOSE SUMS .

7 HOWEVER , SINCE THE COMMISSION HAS RAISED A SERIES OF OBJECTIONS CONCERNING THE ADMISSIBILITY OF THE APPLICATION IT IS APPROPRIATE FIRST OF ALL TO SET OUT THE CIRCUMSTANCES WHICH GAVE RISE TO THE DISPUTE WHICH FORMS THE SUBJECT-MATTER OF THE PRESENT PROCEEDINGS .

8 THE APPLICANT ' S LAWYER , IN A SERIES OF LETTERS ADDRESSED TO THE COMMISSION AND BEARING DATES BETWEEN 17 APRIL 1974 AND 7 MARCH 1975 , DISPUTED THIS METHOD OF CALCULATION , MAINTAINING THAT ACCOUNT SHOULD HAVE BEEN TAKEN OF THE ENTIRE CREDIT BALANCE IN QUESTION , INCLUDING INTEREST .

THE LEGAL DEPARTMENT OF THE COMMISSION , IN ITS REPLY OF 12 MARCH 1975 TO THIS LAST LETTER , OBSERVED IN PARTICULAR THAT PAYMENT OF THE SUMS DUE TO THE APPLICANT BY WAY OF PENSION RIGHTS AS FROM 1 JANUARY 1975 COULD BE EFFECTED ONLY ON CONDITION THAT THE COMMISSION ADOPTED A DECISION FORMALLY AGREEING TO THE SETTLEMENT CONCLUDED AND STATED THAT THE AGENT OF THE COMMISSION WOULD DISCUSS THE PROPORTIONAL REDUCTION WITH THE ADMINISTRATION AND THAT THE APPLICANT ' S LAWYER WOULD BE NOTIFIED IMMEDIATELY OF THE RESULT .

THE COMMISSION SUBSEQUENTLY NOTIFIED THE APPLICANT OF A ' NOTICE OF ASSESSMENT ' DATED 18 APRIL 1975 CONCERNING HIS PENSION RIGHTS ' SUBJECT TO THE CONDITION THAT ( THE SETTLEMENT ) IS FORMALLY APPROVED BY THE COMMISSION ' .

IT IS CLEAR FROM THAT NOTICE THAT THE COMMISSION , IN CALCULATING THE PROPORTIONAL REDUCTION OF THE APPLICANT ' S PENSION RIGHTS , DID NOT TAKE INTO ACCOUNT THE INTEREST STANDING TO THE CREDIT OF HIS ACCOUNT UNDER THE TEMPORARY PROVIDENT SCHEME .

THE COMMISSION , IN A LETTER OF 10 JUNE 1975 , NOTIFIED THE APPLICANT ' S LAWYER THAT IT WAS STILL A FORMAL REQUIREMENT THAT A DECISION BE ADOPTED RECOGNIZING THE APPLICANT ' S PENSION RIGHTS AND THAT , WITH REGARD TO THE CALCULATION OF THE SAID RIGHTS , THE ADMINISTRATION WOULD COMMUNICATE WITH THE APPLICANT DIRECT .

ON 20 JUNE 1975 THE DIRECTOR OF PERSONNEL AT THE COMMISSION ADOPTED A ' DECISION ' ( ' VERFUGUNG ' ) WHEREIN THE APPLICANT ' S PENSION RIGHTS WERE ACKNOWLEDGED WITH EFFECT FROM 1 JANUARY 1975 .

THE APPLICANT , BY A LETTER OF 21 AUGUST 1975 , REQUESTED THE COMMISSION TO REVIEW THE CALCULATION OF THE RATE OF PENSION APPEARING IN THE NOTICE OF ASSESSMENT OF 18 APRIL 1975 AND CLAIMED , WITH REGARD TO THE PROPORTIONAL REDUCTION OF HIS PENSION RIGHTS FOR THE PERIOD BEFORE THE STAFF REGULATIONS CAME INTO FORCE , THAT THE CONTRIBUTIONS AND INTEREST MUST BE TAKEN INTO ACCOUNT WHEN CONSIDERING THE SUMS DEDUCTED FROM HIS CREDIT BALANCE UNDER THE TEMPORARY PROVIDENT SCHEME .

FURTHERMORE , THE APPLICANT STATED THAT HIS LETTER WAS TO BE CONSIDERED , IF THE CIRCUMSTANCES SO REQUIRED , AS REQUESTING THE APPOINTING AUTHORITY TO TAKE A DECISION RELATING TO HIM WITHIN THE CONTEXT OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS .

SINCE THE APPLICANT RECEIVED NO REPLY TO HIS LETTER , ON 15 MARCH 1976 HE SUBMITTED TO THE COMMISSION A COMPLAINT TO THE SAME EFFECT AS THE ABOVEMENTIONED REQUEST .

ON 9 AUGUST 1976 THE COMMISSION CONFIRMED THE IMPLIED DECISION REJECTING THE REQUEST OF 21 AUGUST 1975 AND DISMISSED THE CLAIMS SET OUT BY THE APPLICANT IN HIS LETTER OF 15 MARCH 1976 .

9 THE APPLICANT LODGED AN APPLICATION , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 30 SEPTEMBER 1976 , IN WHICH HE CLAIMS THE ANNULMENT OF THE DECISION OF REJECTION OF 9 AUGUST 1976 AND FURTHER REQUESTS THE COURT TO ORDER THE COMMISSION , IN CALCULATING THE APPLICANT ' S PENSION RIGHTS FOR THE PERIOD WHEN HE WAS A MEMBER OF THE TEMPORARY JOINT PROVIDENT SCHEME WHICH EXISTED BEFORE THE STAFF REGULATIONS CAME INTO FORCE , TO TAKE INTO CONSIDERATION THE AMOUNT CREDITED TO HIS ACCOUNT UNDER THE SAID SCHEME AT THE TIME WHEN THE STAFF REGULATIONS ENTERED INTO FORCE .

THE APPLICANT , IN HIS REPLY , SUBMITTED AS AN ALTERNATIVE CLAIM , IN CASE THE COURT SHOULD CONCUR WITH CERTAIN RESERVATIONS EXPRESSED BY THE COMMISSION CONCERNING THE FORM OF HEAD 2 OF HIS CONCLUSIONS , A NEW VERSION OF THAT HEAD REQUESTING THE COURT TO RULE THAT FOR THE PURPOSE OF CALCULATING THE APPLICANT ' S PENSION RIGHTS FOR THE PERIOD WHEN HE WAS A MEMBER OF THE TEMPORARY JOINT PROVIDENT SCHEME OF THE COMMUNITIES CONSIDERATION MUST BE TAKEN OF THE AMOUNT CREDITED TO HIS ACCOUNT UNDER THE SAID SCHEME AT THE TIME WHEN THE STAFF REGULATIONS ENTERED INTO FORCE .

10 SINCE THE OBJECTIONS RAISED AGAINST THE ADMISSIBILITY OF THE APPLICATION ARE CLOSELY LINKED TO THE SUBMISSIONS PUT FORWARD BY THE PARTIES , FOR WHICH REASON THE COURT DECIDED , BY AN ORDER OF 19 JANUARY 1977 , TO CONSIDER THE OBJECTIONS TOGETHER WITH THE SUBSTANCE , THE SUBSTANCE OF THE CASE MUST BE CONSIDERED FIRST .

11 THE SYSTEM ESTABLISHED UNDER STAFF MEMORANDUM NO 16 WAS A PROVISIONAL SCHEME ' PENDING THE ADOPTION IN THE STAFF REGULATIONS OF PROVISIONS APPLICABLE TO THE STAFF WITH REGARD TO SOCIAL SECURITY ' .

IN FACT THAT SCHEME DID NOT MAKE PROVISION FOR THE PAYMENT OF A PENSION BUT MERELY PROVIDED THAT AN OFFICIAL WHOSE SERVICE WITH THE COMMUNITY TERMINATED FOR A REASON OTHER THAN DEATH BEFORE THE PENSION SCHEME WAS ESTABLISHED WOULD BE ENTITLED TO REIMBURSEMENT OF THE SUMS STANDING TO THE CREDIT OF HIS ACCOUNT WITH THE PROVIDENT FUND , INCLUDING INTEREST .

FURTHERMORE , IT IS CLEAR FROM THE WORDING OF STAFF MEMORANDUM NO 16 THAT THE RULES THEREBY LAID DOWN WERE INTENDED TO FACILITATE THE TRANSITION TO THE PENSION SCHEME UNDER THE STAFF REGULATIONS BY ACCUMULATING CERTAIN FINANCIAL RESOURCES NECESSARY TO THE ESTABLISHMENT OF THAT SCHEME WHICH WERE TO BE TRANSFERRED TO THE PENSION FUND IN ACCORDANCE WITH DETAILED RULES TO BE LAID DOWN ON THE ENTRY INTO FORCE OF THE STAFF REGULATIONS .

HOWEVER , PURSUANT TO THE TEMPORARY PROVIDENT SCHEME , ACCOUNT WAS TAKEN OF THE FACT THAT AT THE TIME IN QUESTION CERTAIN SERVANTS WISHED TO MAINTAIN THEIR PENSION RIGHTS WITH THEIR FORMER ADMINISTRATION OR INSTITUTION AND FOR THIS PURPOSE THEY WERE OBLIGED TO CONTINUE TO PAY THE APPROPRIATE CONTRIBUTIONS .

THE SAID SCHEME THEREFORE PERMITTED THOSE SERVANTS , BY DEBITING THEIR ACCOUNT KEPT BY THE PROVIDENT FUND , TO PAY THOSE CONTRIBUTIONS IN ORDER TO MAINTAIN THEIR PENSION RIGHTS .

SERVANTS WHO EXERCISED THAT OPTION OBTAINED AN ACTUAL AND QUANTIFIABLE ADVANTAGE .

12 ON THE OTHER HAND , THE PENSION SCHEME SET UP UNDER ARTICLE 77 OF THE STAFF REGULATIONS OF OFFICIALS TOGETHER WITH ARTICLE 2 OF ANNEX VIII PROVIDES THAT THE PENSION RIGHTS OF ALL OFFICIALS SHALL BE CALCULATED SOLELY ON THE BASIS OF THE NUMBER OF YEARS OF PENSIONABLE SERVICE ACQUIRED AND OF THE LAST BASIC SALARY .

UNDER ARTICLE 3 OF ANNEX VIII THE SOLE CRITERION FOR CALCULATING YEARS OF PENSIONABLE SERVICE ACQUIRED IS THE PERIOD OF SERVICE COMPLETED IN ONE OF THE COMMUNITY INSTITUTIONS .

CERTAIN ASPECTS OF THE CALCULATION OF THE PENSION RIGHTS OF OFFICIALS TO WHOM THE STAFF REGULATIONS APPLY PURSUANT TO THE TRANSITIONAL PROVISIONS CONTAINED IN CHAPTER 8 OF ANNEX VIII ARE GOVERNED IN PARTICULAR BY ARTICLES 48 AND 49 OF THAT ANNEX .

IN FACT THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 48 ESTABLISH THAT SUCH OFFICIALS ARE ENTITLED TO PENSION RIGHTS COMPUTED FROM THE DATE OF THEIR JOINING THE TEMPORARY JOINT PROVIDENT SCHEME OF THE INSTITUTIONS OF THE COMMUNITY .

13 IN ORDER TO ENSURE AN EQUITABLE TRANSITION FROM THE TEMPORARY PROVIDENT SCHEME TO THE PENSION SCHEME UNDER THE STAFF REGULATIONS IT WAS NECESSARY TO AVOID CREATING DISCRIMINATION BETWEEN OFFICIALS WHO , SINCE THEY HAD NOT EFFECTED WITHDRAWALS FROM THEIR ACCOUNT WITH THE TRANSITIONAL SCHEME IN ORDER TO MAINTAIN THEIR PENSION RIGHTS WITH THEIR FORMER ADMINISTRATION OR INSTITUTION , HAD NOT ALREADY OBTAINED A SPECIFIC BENEFIT , AND OFFICIALS WHO HAD EFFECTED SUCH WITHDRAWALS FROM THEIR ACCOUNT .

IN ORDER TO AVOID SUCH DISCRIMINATION IT WAS PROVIDED IN THE FIRST PARAGRAPH OF ARTICLE 49 THAT , WHERE AN OFFICIAL HAS EXERCISED HIS OPTION TO EFFECT WITHDRAWALS FROM HIS INDIVIDUAL ACCOUNT WITH THE TEMPORARY PROVIDENT SCHEME HIS PENSION RIGHTS UNDER THE STAFF REGULATIONS SHALL , IN RESPECT OF THE PERIOD WHEN HE WAS A MEMBER OF THE TEMPORARY PROVIDENT SCHEME , BE REDUCED IN PROPORTION TO THE SUMS WITHDRAWN .

IT IS CLEAR FROM THE FILE THAT IF THE INTEREST STANDING TO THE CREDIT OF AN INDIVIDUAL ACCOUNT WERE TAKEN INTO CONSIDERATION IN THE CALCULATION OF THE REDUCTION THIS WOULD CAUSE A DECREASE IN THE RATE OF REDUCTION AND , ACCORDINGLY , A GREATER NUMBER OF YEARS OF PENSIONABLE SERVICE ACQUIRED , WHICH WOULD IMPAIR THE TEMPORAL CRITERION OF THE PERIOD OF SERVICE COMPLETED WHICH GOVERNS THE CALCULATION OF THE YEARS OF PENSIONABLE SERVICE .

HOWEVER , HAVING REGARD TO THE AIMS OF THE FIRST PARAGRAPH OF ARTICLE 49 , THE CONSTITUENT FACTORS OF THE PROPORTION REFERRED TO THEREIN ARE , ON THE ONE HAND , THE SUMS WITHDRAWN FROM THE ACCOUNT WITH THE TEMPORARY JOINT PROVIDENT SCHEME AND , ON THE OTHER , THE TOTAL AMOUNT OF CONTRIBUTIONS PAID TO THE CREDIT OF THAT ACCOUNT .

IN FACT , ONLY THE CONTRIBUTIONS PAID TO THE PROVIDENT FUND ARE CAPABLE OF PROVIDING AN ACCURATE AND CONSTANT BASIS FOR THE PURPOSES OF EFFECTING THE NECESSARY COMPARISON , SINCE THE INTEREST REMAINING IN THE INDIVIDUAL ACCOUNT OF AN OFFICIAL AT THE TIME OF THE TRANSITION TO THE PENSION SCHEME UNDER THE STAFF REGULATIONS IS MERELY A SUM THE AMOUNT OF WHICH DEPENDS , ON THE ONE HAND , ON THE PATTERN OF THE PAYMENTS DEBITED TO THAT ACCOUNT AND , ON THE OTHER , ON THE INVESTMENT POLICY OF THE FUND .

FURTHERMORE , THIS FINDING IS CONFIRMED BY THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 48 , WHICH PROVIDES THAT WHERE AN OFFICIAL , DURING THE WHOLE OR PART OF HIS SERVICE PRIOR TO HIS ENTRY INTO THE SERVICE OF ONE OF THE COMMUNITY INSTITUTIONS , HAD NOT CONTRIBUTED UNDER THE PROVIDENT SCHEME , HE IS ENTITLED , BY PAYMENT IN INSTALMENTS , TO BUY IN THE PENSION RIGHTS FOR WHICH HE HAD BEEN UNABLE TO CONTRIBUTE .

IN FACT , AS STATED IN THAT PARAGRAPH : ' THE AMOUNTS CONTRIBUTED BY THE OFFICIAL , TOGETHER WITH THE CORRESPONDING AMOUNTS CONTRIBUTED BY THE INSTITUTION , SHALL BE DEEMED TO HAVE BEEN STANDING TO THE OFFICIAL ' S CREDIT UNDER THE TEMPORARY PROVIDENT SCHEME AT THE DATE OF THE ENTRY INTO FORCE OF THESE STAFF REGULATIONS ' .

IT IS CLEAR FROM THOSE PROVISIONS THAT , ON THE ONE HAND , THE PAYMENT OF CONTRIBUTIONS IS SUFFICIENT TO CONFER FULL PENSION RIGHTS WITHOUT THE NEED TO PAY INTEREST AND THAT , ON THE OTHER , THOSE RIGHTS ARE ACQUIRED WITHOUT THE FUND ' S BEING COMPENSATED FOR THE LOSS OF THE INVESTMENT INCOME FROM THE CONTRIBUTIONS WHICH IT WOULD HAVE RECEIVED IF THE CONTRIBUTIONS HAD BEEN PAID WITHIN THE PERIOD LAID DOWN IN STAFF MEMORANDUM NO 16 .

14 IT IS CLEAR FROM THE FOREGOING THAT , HAVING REGARD TO THE PRINCIPLES GOVERNING THE PENSION SCHEME ESTABLISHED BY THE STAFF REGULATIONS , IT MUST BE CONCLUDED THAT THE COMMISSION WAS JUSTIFIED IN REFUSING TO AMEND ITS CALCULATION OF THE PROPORTIONAL REDUCTION OF THE APPLICANT ' S PENSION AS DESIRED BY THE APPLICANT .

CONSEQUENTLY , THE APPLICANT ' S CLAIMS MUST BE DISMISSED AS UNFOUNDED .

15 IN THE CIRCUMSTANCES IT IS UNNECESSARY TO CONSIDER THE PRELIMINARY OBJECTIONS RAISED BY THE COMMISSION .

Decision on costs

COSTS

16 PURSUANT TO ARTICLE 62 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS .

NEVERTHELESS , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .