JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

12 October 2010

Case F-49/09

Eberhard Wendler

v

European Commission

(Civil service — Officials — Retirement pension — Payment of pension — Obligation to open a bank account in country of residence — Freedom to provide services — Plea involving a matter of public policy — Principle of equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Mr Wendler, a former Commission official, seeks annulment of the decision ordering him to notify the Commission of the details of a bank account in his country of residence for payment of his retirement pension.

Held: The applicant’s action is dismissed. The applicant is ordered to bear his own costs and to pay the costs of the Commission. The Council of the European Union, intervener for the Commission, is ordered to bear its own costs.

Summary

Officials — Pensions — Retirement pension — Payment

(Staff Regulations, Annexes VII, Art. 17, and VIII, Art. 45, third para.)

Retired officials and officials in active service are treated differently as regards the payment of amounts due. Whereas, under the third paragraph of Article 45 of Annex VIII to the Staff Regulations, all benefits paid to pensioners residing in the European Union must be paid into a bank in the Member State of residence, the equivalent rule for officials in active service laid down in Article 17(1) of Annex VII to the Staff Regulations, according to which amounts due to officials in active service are to be paid at the place where they carry out their duties, allows for two variations. First, Article 17(2) of Annex VII to the Staff Regulations makes it possible for officials in active service to have part of their remuneration – that is, the amount of the education allowance actually received for a dependent child attending an education establishment in another Member State and the amounts corresponding to regular payments to all other persons residing in the relevant Member State to whom the official provides evidence of having an obligation by virtue of a decision of the courts or the competent administrative authority – transferred by their institution of employment to another Member State. Second, and irrespective of the possibilities offered by Article 17(2) of Annex VII to the Staff Regulations, Article 17(4) entitles officials in active service to request a regular transfer of the amounts due, up to 25% of their basic salary, without application of any correction coefficient, to a Member State other than that in which they carry out their duties.

That difference in treatment between retired officials and officials in active service cannot, however, result in unlawful discrimination, since the two categories of officials are in objectively different situations. Whereas retired officials are free to choose their country of residence, officials in active service are required by Article 20 of the Staff Regulations to reside in the place where they are employed or at no greater distance therefrom as is compatible with the proper performance of their duties. Thus, with the exception of those who are employed in the Member State of which they are nationals, officials in active service are presumed to have ties in at least two separate Member States, the Member State of which they are nationals and the Member State in which they are employed. Retired officials, on the other hand, having the freedom to choose where they reside, cannot rely on that presumption, even if, out of personal choice, they may reside in a Member State other than that of which they are nationals, and, if they retired before 1 May 2004, benefit from the correction coefficient applicable to that country of residence.

(see paras 43-44)