9

After finding that the decisions rejecting the complaints lacked any independent significance and that, consequently, the action had to be regarded as being directed only against the second proposals (paragraphs 32 and 33 of the judgment under appeal), the Civil Service Tribunal examined the admissibility of the action, which was disputed by the Commission, and held that it was admissible. Paragraphs 37 to 55 of the judgment under appeal, which deal with this question, are worded as follows: ‘37 It should be noted first of all that the system for the transfer of pension rights, as set out in Article 11(2) of Annex VIII to the Staff Regulations, seeks, by enabling the European Union scheme to be coordinated with the national schemes, to facilitate movement from national employment, whether public or private, and also from international employment, to the European Union administration and thus to ensure that the Union has the best possible chance of being able to choose qualified staff who already possess suitable experience (order of 9 July 2010 in Joined Cases C‑286/09 and C‑287/09 Ricci, paragraph 28 and the case-law cited). 38 In that context, the General Court held in particular that proposals concerning additional pensionable years sent to officials for agreement are “decisions” which have a double effect: first of preserving for the official concerned, in the original legal system, the amount of pension rights he acquired in the national pension scheme and, secondly, of ensuring that, in the European Union legal order and subject to the fulfilment of certain additional conditions, those rights are taken into account in the European Union pension scheme (judgment of 18 December 2008 in Joined Cases T‑90/07 P and T‑99/07 P Belgium and Commission v Genette, paragraph 91 and the case-law cited). 39 The Tribunal also, for its part, has held that proposals concerning additional pensionable years constitute unilateral acts which do not call for any other measure on the part of the competent institution and which adversely affect the official concerned. If that were not so those acts would, as such, not be open to challenge before the courts or, at least, could not be the subject of a complaint or an action until a later decision was taken, at an unspecified date, by an authority other than the appointing authority. That analysis does not respect either the right of officials to effective judicial protection or the requirements of legal certainty inherent in the rules on time-limits laid down in the Staff Regulations (order of 10 October 2007 in Case F‑17/07 Pouzol v Court of Auditors, paragraphs 52 and 53). 40 Lastly, that line of authority was also upheld by the judgment of 11 December 2012 in Case F‑122/10 Cocchi and Falcione v Commission (which is currently under appeal before the General Court, Case T‑103/13 P, paragraphs 37 to 39), in which the Tribunal held that the proposal concerning additional pensionable years was an act adversely affecting the official concerned. 41 It is therefore clear from the case-law cited in paragraphs 38 to 40 above that the proposal concerning additional pensionable years which the competent services of the Commission submit for an official’s agreement, during the various stages of the administrative procedure described in paragraph 35 above, is a unilateral act, separable from the procedural framework in which it is taken, adopted under circumscribed powers attributed ex lege to the institution, since it stems directly from the individual right which Article 11(2) of Annex VIII to the Staff Regulations confers expressly on officials and other servants when they enter the service of the European Union. 42 The exercise of those circumscribed powers requires the Commission to draw up a proposal concerning additional pensionable years which is based on all the relevant data which it is required to obtain from the national or international authorities concerned specifically in the context of close coordination and sincere cooperation between these authorities and the Commission services. Such a proposal, therefore, cannot be regarded as the manifestation of a “mere intention” of the service of the institution to provide information to the official concerned, pending receipt of his agreement followed by receipt of the capital sum enabling the institution to credit the additional years of pensionable service. On the contrary, such a proposal constitutes the necessary commitment on the part of the institution to proceed correctly in implementing effectively the official’s right to transfer of his pension entitlements which he has exercised in submitting his request for transfer. The transfer of the updated capital sum to the European Union pension scheme, for its part, constitutes the honouring of a separate obligation incumbent on the national or international authorities, which is necessary in order to carry out in full the procedure for the transfer of pension rights to the European Union pension scheme. 43 Thus, the exercise of circumscribed powers in the implementation of Article 11(2) of Annex VIII to the Staff Regulations requires the Commission to employ all necessary diligence in order to enable an official who has requested the application of Article 11(2) of Annex VIII to the Staff Regulations to give his agreement to the proposal concerning additional pensionable years in full knowledge of the facts, both as regards the data required in order to calculate the number of additional pensionable years for purposes of the Staff Regulations to be credited and as regards the rules governing, “at the date of application for a transfer”, the method for such calculation, as expressly stated in Article 11(2) of Annex VIII to the Staff Regulations, which provides that the institution in which the official serves is to “determine” by means of general implementing provisions “the number of years of pensionable service” with which he is to be credited, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer. 44 It is clear from all the foregoing that a proposal concerning additional pensionable years is an act adversely affecting the legal situation of an official who has made a request for transfer of his pension rights. 45 That conclusion is also supported by the following considerations. 46 In the first place, codifying previous practice in clauses contained in proposals of additional pensionable years, Article 8 of the 2011 GIP now expressly provides that the agreement which the official is requested to give to the proposal concerning additional years of pensionable service, once given, is “irrevocable”, confirming an earlier practice which was written into clauses contained in proposals concerning additional years of pensionable service. However, the irrevocable nature of the official’s agreement once given is justified only if the Commission, for its part, has submitted to the person concerned a proposal whose content has been calculated and put forward with all due care and which is binding on the Commission in so far as it obliges it to carry out the transfer process on that basis where the person concerned gives his agreement. 47 Secondly, the proposal concerning additional pensionable years is made, in principle, on the basis of a method of calculation which is the same as the one applying at the time when the European Union pension scheme receives in full the capital sum definitively transferred by the national or international fund holding the funds. 48 The most that might change between the date of the proposal concerning additional pensionable years and the date of receipt of the capital sum definitively transferred is the amount of the sum concerned, as the amount of the transferable capital sum updated to the date of the request for transfer may be different from the amount of the capital sum on the date on which it is actually transferred, because of fluctuations in exchange rates, for example. Even in the latter case, which can only affect capital transfers expressed in currencies other than the euro, the method of calculation applied to both amounts is the same. 49 Thirdly, the Commission’s argument that only the decision on additional years of pensionable service adopted after receipt of the capital transferred adversely affects the official concerned clearly conflicts with the purpose of the administrative procedure for the transfer of pension rights. The purpose of that procedure is specifically to enable the official concerned to decide, in full knowledge of the facts and before the capital sum corresponding to all his contributions is definitively transferred to the European Union pension scheme, whether it is more advantageous for him to combine his previous pension rights with those he acquires as a European Union official or, on the other hand, to preserve his rights in the national legal system (see Belgium and Commission v Genette, paragraph 91). In accordance with the Commission’s approach, the official concerned would be obliged to challenge the method whereby the Commission services calculated the number of additional pensionable years to which he is entitled only after the national or international pension fund making the transfer has definitively transferred the capital sum to the Commission, which would amount in practice to destroying the very essence of the official’s right under Article 11(2) of Annex VIII to the Staff Regulations to choose whether to transfer his pension rights or keep them in the original national or international pension fund. 50 Fourthly and lastly, it cannot be argued that, as the Commission contends, the proposals concerning additional pensionable years are only preparatory acts, on the ground that Article 11(2) of Annex VIII to the Staff Regulations requires the number of additional pensionable years to be calculated “on the basis of the capital transferred”. 51 In that regard, it should be noted first of all that it is clear from the wording of Article 11(2) of Annex VIII to the Staff Regulations that the institution concerned is to “determine” the number of years of pensionable service initially “by means of general implementing provisions”, “taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer” and that it then is to take into account the number of years of pensionable service thus determined to be credited under the European Union pension scheme “on the basis of the capital transferred”. 52 That wording is supported by Article 7 of the 2004 GIP and Article 7 of the 2011 GIP. Paragraph 1 of each of those articles provides that the number of pensionable years to be taken into account is to be calculated “on the basis of the transferable amount of the pension rights acquired … minus the amount of capital appreciation between the date on which the transfer application is registered and the date of the actual transfer”. 53 Article 7(2) of the 2004 GIP, in common with the 2011 GIP, states that the number of years of pensionable service to be taken into account “is to be calculated … on the basis of the transferred amount”, according to the mathematical formula laid down in the first indent of Article 7(2). 54 It is therefore clear from the abovementioned provisions that proposals concerning additional pensionable years are to be calculated on the basis of the transferable amount on the date of registration of the transfer, as notified by the competent national or international authorities to the Commission services, minus where appropriate the amount of capital appreciation between the date on which the transfer application is registered and the date of the actual transfer, and that that difference in monetary terms should not be borne by the European Union pension scheme. 55 It follows from all the above considerations that the second proposals concerning additional pensionable years are an act adversely affecting the officials concerned and that the claims for annulment are therefore admissible.’