JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

15 December 1998

Case T-233/97

Folmer Bang-Hansen

v

Commission of the European Communities

‛Officials — Transfer of pension rights — Article 11 (2) of Annex VIII to the Staff Regulations’

Full text in French II-1889

Application for:

annulment of the Commission's decision of 16 October 1996 providing that the time-limit for transferring pension rights is to be calculated separately for each transfer and refusing the applicant's request for aggregation of transfers from Andels-Pensionsforeningen and the Juristernes og Økonomernes Pensionskasse.

Decision:

Annulment.

Abstract of the Judgment

The applicant entered the service of the Commission on 1 September 1973.

He had previously worked in Denmark, where he had paid contributions to two Danish pension funds: from 1 February 1966 to 1 November 1968, to Andels-Pensionsforeningen, and from 1 November 1968 to 1 September 1973, to the Juristernes og Økonomernes Pensionskasse.

On 6 March 1996 the applicant submitted a request for the transfer to the Communities of the retirement pension rights acquired by him in Denmark. The Commission sent the applicant a proposal for the transfer of amounts corresponding to the contributions paid to the Juristernes og Økonomernes Pensionskasse. In that proposal, the conversion of the transferable amount resulted in a number of years of pensionable service which was greater than the number of years during which the applicant had been a member of that Danish pension fund. Consequently, the surplus part of that amount could not be used as the basis for establishing a supplement to his Community retirement pension. The supplement proposed in the present case corresponded to a period of four years and ten months, and the amount to be reimbursed totalled DKK 135467.44.

Because of the meagreness of the rights acquired in respect of his contributions to Andels-Pensionsforeningen, the applicant requested the Commission to calculate his pension rights on the basis of an aggregation of the amounts transferred by each of the two funds.

By decision of 16 October 1996, the Commission informed the applicant that the time-limit to be taken into account for the transfer of the pension rights was to be calculated separately in respect of each transfer. It was not therefore possible to aggregate the amounts transferred.

The applicant lodged a complaint, and subsequently brought proceedings on account of infringement of Article 11(2) of Annex VIII to the Staff Regulations of officials of the European Communities (‘the Staff Regulations’).

Law

The system provided for by Article 11(2) of Annex VIII to the Staff Regulations is intended to facilitate movement from national employment to the Community administration and thus to ensure that the Communities have the best possible chance of being able to choose qualified staff who already possess suitable experience (paragraph 30).

See: 137/80 Commission v Belgium [1981] ECR 2393, para. 11

For the purposes of calculating the Community retirement pension, that transfer system must take into account all of the rights acquired under the national scheme, regardless of the fact that the official concerned may have contributed to different, non-complementary schemes (paragraph 31).

In the present case, it is only possible to take into consideration all of the rights acquired if the amounts of the transfers — each of which, although emanating from two different funds, establishes the amount of the actuarial equivalent to which it relates — are added together in order to determine the number of years of pensionable service to be taken into account and the resulting supplement (paragraph 36).

That aggregation does not in any way result in an interference with the powers of the national authorities. It constitutes a different operation, taking place after the actuarial equivalent has been calculated, and therefore forms part of the conversion of the assets transferred into years of pensionable Community service which the Community administrative authorities are required to carry out (paragraph 38).

Consequently, the contested decision must be annulled (paragraph 45).

Operative part:

The Commission's decision of 16 October 1996, providing that the time-limit for transferring pension rights is to be calculated separately for each transfer and refusing the applicant's request for aggregation of transfers from Andels-Pensionsforeningen and the Juristernes og Økonomernes Pensionskasse, is annulled.