Opinion of Mr Advocate General Lenz delivered on 5 July 1989. - Marilena Bonazzi-Bertottilli and others v Commission of the European Communities. - Officials - Retirement pension - Transfer to the Communities of pension rights acquired previously - Calculation of the actuarial equivalent. - Joined cases 75/88, 146/88 and 147/88.



European Court reports 1989 Page 03599



Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - Facts of the case

1 . The three joined cases in which I am giving my views today concern the transfer of the applicants' pension entitlements acquired under the Italian social-insurance scheme to the pension scheme of the European Communities pursuant to Article 11 of Annex VIII to the Staff Regulations . ( 1 )

2 . The transfer became possible after the applicants had become ( 2 ) officials or other servants ( 3 ) of the Communities, and after the conclusion on 2 March 1978 of an agreement between the Commission and the Istituto Nazionale della Previdenza Sociale ( the "INPS "). The Commission made available to the members of staff concerned forms issued by the INPS, which had to be lodged with a specific department of the Commission within a six-month period laid down in a Commission memorandum of 13 June 1978 and expiring in December 1978 . Using this procedure the applicants ( amongst others ) expressed their interest in having their pension rights transferred .

3 . The Commission informed the applicants ( 4 ) of the number of years of pensionable service with the Communities which corresponded to their national entitlements . ( 5 ) At the same time they were requested to state within one month whether they wished to have their Italian actuarial equivalents transferred . The applicants gave their consent . ( 6 ) At the same time ( 7 ) or shortly afterwards, ( 8 ) however, they added a reserve concerning the computation of the actuarial equivalent .

4 . They did so because they maintained - and continue to maintain - that the INPS fixed the actuarial equivalent too low, namely in accordance with a table of 1964, whereas reference should properly have been made to the table attached to the Decree of 19 February 1981 . The use of the 1981 table would have led to the granting of more years of pensionable service . ( 9 )

5 . They lodged complaints to that effect, dated 10 August, 30 October and 26 October 1987 . Since the complaints remained unanswered, they then brought actions before the Court of Justice on 9 March and 1 August 1988, seeking the annulment of the decisions of 12 May and 22 and 24 July 1987, and reassessment of the period of pensionable service based on a different actuarial equivalent .

6 . For a fuller account of the facts of the case and the submissions of the parties, reference is made to the Report for the Hearing .

B - Opinion

7 . 1 . As observed above, the only issue raised by the applicants concerns the question whether the actuarial equivalent of their national pension rights was correctly calculated by the INPS, namely by reference to the appropriate table laid down to give effect to the Italian Law of 1962 .

8 . The Commission objected that the INPS calculations could not be attributed to it; it could not be held liable for measures adopted under national law by independent national institutions .

9 . In effect, this is tantamount to contending that the application is inadmissible, because the view thereby expressed is that the sole claim made by the applicants is not admissible in proceedings against the Commission challenging a measure which the Commission has adopted in accordance with Article 11 of Annex VIII to the Staff Regulations on the basis of information communicated by the Italian social security institution .

10 . The tacit implication is, no doubt, that the application of national law by a national institution must be contested in national judicial proceedings, which may then give rise to a request for a preliminary ruling under Article 177 of the EEC Treaty if the case calls for an interpretation of the agreement concluded between the Commission and the INPS .

11 . I do not, however, propose to accept that view - and not only because it may no longer be possible to commence proceedings before a national court, or because there would at least be considerable delay in resolving a question which relates to an agreement entered into by the Community .

12 . Greater importance attaches to two further considerations . First, it is undeniable that the applicants have had direct contact only with the Commission; indeed, the provisions implementing the aforesaid Article 11 ( reproduced in the Staff Courier of 19 October 1977 ) provide that applications are to be addressed to a specific department of the Commission . Accordingly, the applicants were not the direct recipients of any national decisions which they could have challenged, but only of Community acts based on information communicated by the INPS .

13 . It is also clear that, as a party to the agreement concluded with the INPS, the Commission is involved in its application and must adopt some attitude to it . Had the Commission reached the conclusion that the INPS was basing itself on a misinterpretation, it would have had to point this out in accordance with its duty to have regard for the welfare of officials, and would thus have had to ensure the correct application even of national law . That was in fact the object of the applicants' complaints, which called for the calculations to be returned to the INPS for amendment . If the Commission did not agree to do so - as may be inferred from its failure to answer the complaints - the only conclusion must be that it endorsed the INPS' s interpretation of the agreement, as it has indeed expressly acknowledged .

14 . It may therefore be said without qualification that the measures which the Commission adopted under Article 11 of Annex VIII to the Staff Regulations are based on a definite view which it holds on the interpretation of the agreement concluded with the INPS .

15 . Viewed in that light there is nothing out of the ordinary in the fact that in contesting the decisions adopted by the Commission the applicants objected that the acts leading to those decisions, namely the calculation of the actuarial equivalents, were vitiated because they were inconsistent with the agreement .

16 . 2 . Section ( B)1 of the agreement with the INPS provides - as I mentioned earlier - that the actuarial equivalent is to be calculated in accordance with tables drawn up in order to give effect to Article 13 of the Law of 12 August 1962 which are in force on the date of the "presentazione della domanda di trasferimento ". It further provides that the transfer is not effected until the official concerned has expressed his consent, which he must do within 90 days of the communication by the INPS to the Commission of the amount to be transferred .

17 . In the main, the applicants claim that it is possible to speak of an application for transfer only when a definitive wish to proceed with the transfer has been expressed following the communication of the amount concerned ( in the present case, the consents to the decisions of 12 May, 22 and 24 July 1987 ). One basis for that view is the fact that it was not until that moment that it was possible to apply under Article 42 of the Conditions of Employment ( for payments to be made in order to constitute or maintain pension rights in the country of origin ), once an agreement to that end had been concluded with the INPS on 22 April 1980 .

18 . In the alternative, in the event that the expression of interest in the questionnaire which was to be returned by December 1978 should be considered significant, the applicants argue that the relevant date must be that of receipt of the questionnaires by the actual addressee, namely the national insurance institution, or at least their dispatch to that institution ( which means - according to the INPS receipt stamp on the forms - 13 December 1984 or 12 March 1983, or the dates of the covering letters, namely 6 December 1984 and 7 March 1983 ). Accordingly, there is absolutely no question of consulting the table laid down by the 1964 decree, and reference must clearly be made to the table laid down by the 1981 decree, with its higher coefficients .

19 . In my view, neither the applicants' main claim nor their alternative submission is correct .

20 . ( a ) The first point is readily demonstrated on the basis of the wording of the agreement . The procedure to which the applicants refer is dealt with in Section ( B)2, and this section - unlike Section ( B)1 - does not speak of an application but of a confirmation (" conferma "). In so far as the agreement makes the formal request the determining factor for the application of national law, emphasis can clearly not be laid on the definitive decision of the person concerned regarding the calculation of his years of pensionable service, for which a different term altogether is used .

21 . Furthermore, it is clear that the applicants' view is not quite logical . In the Commission' s memoranda ( the dates of which are mentioned above ) concerning the calculation of years of pensionable service, provision was made for those concerned to give their consent within one month, and it was provided ( having regard to the 90-day period laid down in Section ( B)2 of the agreement ) that the relevant sums would actually be transferred shortly afterwards ( namely by 30 June, 30 September and 1 October 1987 ). Since the applicants gave their consent on 25 May 1987, 24 August 1987 and 7 August 1987 respectively, there would hardly have been sufficient time prior to the anticipated transfer for the files to be returned to the INPS for recalculation of their entitlements on the basis of the current table giving effect to the Law of 12 August 1962 . This too shows that the contention that the word "application" as used in the agreement means the definitive consent by the persons concerned to the transfer of their pension rights to the Community cannot be upheld .

22 . ( b ) The alternative claim that the decisive date was that of the dispatch to the INPS of the forms which those concerned were required to fill in ( and in which no more than an interest in the transfer of pension rights to the Community was expressed ), or that of the receipt of those documents by the INPS is refuted - and the Commission' s view that the decisive moment was the commencement of the transfer procedure in 1978 is supported - by the very wording of Article 11 of Annex VIII to the Staff Regulations, which was applied to the applicants by analogy . Since Article 11 provides that an official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking has the right, on becoming established as a Community official, to pay certain sums to the Communities, the inference is that the transfer of pension rights must be seen as being as closely connected as possible with the acquisition of the status of official; expressed in broader terms - in view of the application of Article 11 to cases such as the present ones - such a transfer must be as closely connected as possible with the moment at which ( following the adoption of Regulation No 2615/76 and the conclusion of the agreement with the INPS ) it became feasible . It is difficult to reconcile that conclusion with reference to points in time which are relatively remote from that moment and which were partly determined by the vicissitudes of the work-load borne by the competent department of the Commission ( as we were told, the competent department of the Commission had to process 800 applications from Ispra alone, and this, added to the other functions performed by that department, resulted in considerable delays in the forwarding of the applications to the INPS ).

23 . The correctness of that appraisal is also borne out by the implementing provisions adopted by the Commission, which show that they were influenced by the object of the agreement as perceived by both contracting parties . It is clear that the initial expression of interest is to be regarded as the decisive point of departure ( even if it does not amount to a final decision to have the actuarial equivalent transferred ), and it is important to note that this interest had to be expressed by December 1978 - in other words, shortly after the introduction of the possibility of transferring national insurance entitlements to the Community . It is also relevant in this context that reference is made to an "application" ( see the memorandum of 13 July 1978 ) and that the measures published in the Staff Courier of 19 October 1977 for the implementation of Article 11 of Annex VIII to the Staff Regulations cite as the addressee of the applications a department of the Commission which had to be contacted within the permitted period .

24 . A further point which should not be overlooked in this context is that employees interested in the proposal did not deal with the INPS directly but only with their employer . This, too, strongly suggests - in so far as the issue is the time of presentation of the applications - that the decisive factor is the request to the Commission and not the forwarding of the applicants' forms, over which they had no further control .

25 . That is, furthermore, consistent with the judgment in Case 129/87, ( 10 ) to which the defendant referred in the oral procedure, in which the Court ruled that it was sufficient for the application to have been received by the competent Community institution within the permitted period . The applicants, for their part, can hardly derive any decisive arguments from their reference to the judgment in Case 124/87 . ( 11 ) Although one of the claims made in the present case is that the time-limits laid down in the Commission' s implementing provisions do not apply to "other servants" within the meaning of the Community staff rules ( which appears to mean that if they submit their applications later they are entitled to avail themselves of the national conversion tables which subsequently entered into force ), it must not be forgotten that in that judgment the Court explicitly indicated that measures adopted by the Commission ( which might extend to an appropriate amendment of the agreement ) were essential in order to avoid that risk of unequal treatment .

26 . ( c ) It must therefore be concluded that the INPS and the Commission were right to consider that the "presentazione della domanda" within the meaning of the agreement meant the initial expression of interest to the Commission, and therefore that only the tables contained in the 1964 Decree, which were still in force in 1978, could be of relevance to the applicants .

27 . 3 . Having reached that conclusion I do not need to dwell at any length on the applicants' second claim, in which they complain that the view taken by the Commission is attributable solely to the desire to avoid disparities in the treatment of employees according to the date of receipt of the forms by the INPS - for which the Commission was responsible - even though the conception of the agreement, in conjunction with the implementing provisions adopted by the Commission, is such that differences of that kind are sometimes unavoidable if the national legal situation changes in the course of the six-month period allowed for applications .

28 . We have already seen that the interpretation of the agreement on which the INPS and the Commission base themselves is, for various reasons, a correct one and that it is therefore immaterial whether the Commission is open to criticism on account of the delays in transmitting the application forms . We have also observed that all the applications for the transfer of pension rights were subject to the time-limit which expired in December 1978 and that it cannot be assumed that applications were forwarded to the INPS before 1981, thereby preventing those concerned from relying in any circumstances on the tables in the Italian Decree of 1981 .

29 . Accordingly, it can only be concluded that there is no question of the Commission' s interpretation of the agreement being influenced by any extraneous considerations whatever, so that the applicants' second claim is also unsuccessful .

C - Conclusion

30 . 4 . All these considerations lead to the conclusion that criticism of the Commission' s decisions fixing the periods of pensionable service for the applicants is misplaced . Consequently, neither their applications to the Court for annulment nor their applications for a declaration can be granted ( which leaves open the question whether the Court of Justice may in some circumstances give declaratory judgments such as the applicants have requested ).

31 . I therefore propose that the Court of Justice should hold as follows :

( 1 ) The applications are dismissed .

( 2 ) The parties shall bear their own costs .

(*) Original language : German .

( 1 ) These entitlements were acquired :

( i ) by the applicant in Case 75/88 during 14 years of employment as an employee at a nuclear installation;

( ii ) by the applicant in Case 146/88 during six years of employment in a private undertaking and two years as a local official;

( iii ) by the applicant in Case 147/88 during 10 years of employment in a private undertaking and 10 years as a local official and employee at a nuclear installation .

( 2 ) See Council Regulation No 2615/76 of 21 October 1976, OJ L 299, 29.10.1976, p . 1 .

( 3 ) Within the meaning of the conditions of employment of other servants of the European Communities .

( 4 ) Memoranda of 12 May 1987, Case 75/88; of 22 July 1987, Case 146/88; and of 24 July 1989, Case 147/88 R .

( 5 ) In Case 75/88 : five years, one month and 24 days; in Case 146/88 : one year, seven months and five days; and in Case 147/88 : six years, seven months and 29 days .

( 6 ) Memoranda of 25 May, 24 August and 3 August 1987 .

( 7 ) In Case 75/88 .

( 8 ) In Cases 146 and 147/88 .

( 9 ) In Case 75/88 : 12 years, five months and 19 days; in Case 146/88 : five years, two months and 19 days; and in Case 147/88 : 13 years and 12 days .

( 10 ) Judgment of 5 October 1988 in Case 129/87 Eva Fingruth v Caisse de pension des employés privés, Luxembourg (( 1988 )) ECR 6121 .

( 11 ) Judgment of 29 June 1988 in Case 124/87 G . Gritzmann-Martignoni v Commission (( 1988 )) ECR 3491 .