Judgment of the Court (Sixth Chamber) of 5 October 1988. - Eva Fingruth v Caisse de pension des employés privés. - Reference for a preliminary ruling: Cour de cassation - Grand Duchy of Luxembourg. - Transfer of official's pension rights to the Community scheme. - Case 129/87.



European Court reports 1988 Page 06121



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Officials - Pension - Pension rights acquired before entry into the service of the Communities - Transfer to the Community scheme - Obligations of the Member States - Adoption of measures enabling the transfer to take place - Detailed rules - Period allowed for submission of the request - Cannot be raised as a bar to a request submitted within the period to the Community institution in accordance with an administrative practice

( Staff Regulations of Officials, Annex VIII, Art . 11 ( 2 ) )

Summary

Since it is a provision of a regulation, Article 11 ( 2 ) of Annex VIII to the Staff Regulations is mandatory and directly applicable in all the Member States, which are therefore required to adopt measures, general or special, to enable officials to use their right under that provision to transfer to the Community pension scheme the rights acquired under the national pension scheme .

Member States must be recognized as having the right to prescribe a certain period within which officials must submit their request for transfer, failing which the request will not be admitted . As regards its duration, a period such as that of one year from establishment is in conformity with the purpose of the provision of the Staff Regulations in question since it offers the official concerned a sufficiently long time for reflection to enable him properly to make his decision .

However, an official' s request may not be barred as out of time if, before the expiry of the period, he submitted his request to the Community institution by which he is employed in accordance with an administrative practice which has been established between that institution and the competent national authority, thereby giving rise to a legitimate expectation on his part .

Parties

In Case 129/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour de cassation of the Grand-Duchy of Luxembourg for a preliminary ruling in the action pending before that court between

Eva Decker, née Fingruth, an official of the European Parliament, residing in Arlon

and

Caisse de pension des employés privés ( Pension Fund for private employees ), Luxembourg

on the interpretation of Article 11 ( 2 ) of Annex VIII to Regulation ( EEC, Euratom, ECSC ) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission ( Official Journal, English Special Edition 1968 ( I ), p . 3O ),

THE COURT ( Sixth Chamber )

composed of : O . Due, President of Chamber, T . Koopmans, K . Bahlmann, C . N . Kakouris and T . F . 0' Higgins, Judges,

Avocate General : M . Darmon

Registrar : D . Louterman, Administrator

after considering the observations submitted on behalf of

E . Decker, by A . Bonn, avocat,

the Caisse des employés privés, by F . Entringer, avocat,

the Luxembourg Government, by G . Schroeder and E . Ewen, Agents,

the United Kingdom, by S . J . Hay, of the Treasury Solicitor' s Department,

the Commission of the European Communities by H . Etienne, Agent,

having regard to the Report for the Hearing and further to the hearing on 3 May 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 5 July 1988,

gives the following

Judgment

Grounds

1 By order of 9 April l987, which was received at the Court on 21 April 1987, the Cour de cassation of the Grand Duchy of Luxembourg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 11 ( 2 ) of Annex VIII of Regulation No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission ( Official Journal, English Special Edition 1968 ( I ), p . 30, hereinafter referred to as the Staff Regulations ").

2 The question was raised in proceedings between Mrs Eva Decker, née Fingruth, an official of the European Parliament, the plaintiff in the main proceedings, and the Caisse de pension des employés privés ( Pension Fund for private employees ), Luxembourg, ( hereinafter referred to as "the Fund "), the defendant in those proceedings .

3 Prior to her establishment as an official of the European Parliament on 1 April 1981 Mrs Decker had been employed in the private sector in Luxembourg and had thereby acquired pension rights with the Fund .

4 Mrs Decker made known her wish to have her pension rights transferred from the Luxembourg scheme to the Community scheme and the administration of the European Parliament requested the Fund to inform it of the exact sum of the contributions to be transferred . On 24 November 1981 the Parliament administration passed on to Mrs Decker the statement concerned and on the same day she sent a formal application to the administration of the Parliament for the transfer to the Community pension scheme of all of the contributions, which amounted to BFR 618 192 . The Parliament' s administration did not pass on this request to the Fund until the 27 May 1982, that is to say more than one year after Mrs Decker' s establishment .

5 On 2nd June 1982 the Fund refused the transfer request on the ground that it had been made after the expiry of the period prescribed by national legislation . Article 18 of the Luxembourg Law of 16 December 1963 on the coordination of pension schemes, as amended by the Law of 14 March 1979, provides that the transfer request must be made within one year from the official' s establishment, failing which it will not be admitted .

6 The case was brought before all the courts having jurisdiction in the matter and the Cour de cassation finally decided to stay the proceedings pending a ruling by the Court of Justice on the following question :

"Does Article 11 ( 2 ) of Annex VIII to the Staff Regulations of Officials and Other Servants of the European Communities, as laid down by Regulation No 259/68 of the Council of 29 February 1968, which provides no time-limit for the lodging of a request for the transfer of pension rights by an official entering the service of the Communities, restrain a Member State, when enacting implementing measures in domestic law to give effect to that Community provision, from restricting the exercise by the official of his rights by imposing a time-limit on the lodging of the request for the transfer and by penalizing non-compliance with that time-limit by forfeiture of his rights?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the provisions of national and Community law in question, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 The plaintiff in the main proceedings argues that Article 11 ( 2 ) of Annex VIII to the Staff Regulations does not allow a national legislature to set a time-limit for the submission of requests to transfer pension rights . Such a time-limit is prejudicial to an individual right conferred on officials by a provision of Community law .

9 On the other hand, the defendant in the main proceedings considers that Article 11 ( 2 ) of Annex VIII to the Staff Regulations does not preclude the setting of such a time-limit which is justified by administrative necessity . That point of view is shared by the Luxembourg Government and the United Kingdom . Although it acknowledges that Member States are entitled to set a time-limit, the Commission submits that the expiry of the time-limit may not be relied on as a bar to the claim of an official whose choice has been expressed to his institution within the period but has not been passed on in good time to the national authorities by that institution because of administrative delays .

10 It should be noted at the outset that, as the Court held in its judgment of 20 October 1981 in Case 137/80 Commission v Belgium (( 1981 )) ECR 2393, Article 11 ( 2 ) of Annex VIII to the Staff Regulations is mandatory and directly applicable in all the Member States, which are therefore required to adopt all appropriate measures to implement that provision, whether they be general or particular .

11 It follows from this distribution of responsibilities that Member States must be recognized as having the right to prescribe a certain period within which Community officials who wish to transfer their pension rights to the Community scheme must submit their requests, in order to avoid uncertainties regarding their affiliation in the matter of insurance, as the abovementioned governments and the Commission have rightly pointed out .

12 As regards the length of such a period, one year from the date of the official' s establishment, as laid down by the Luxembourg legislation, must be held to be consistent with the purpose of Article 11 ( 2 ) of Annex VIII to the Staff Regulations since that period offers the official a sufficiently long time for reflection to enable him properly to make his decision .

13 In order to give a helpful reply to the national court in the specific context of the main proceedings it is, however, necessary to consider whether the expiry of the period in question may be relied on as against an official who has submitted his transfer request to his Community institution within the period prescribed by national legislation, in conformity with an administrative practice which had been established between that institution and the competent national authority, when the request was not passed on by the responsible department of the Community institution until after the expiry of that period .

14 It is apparent from the documents before the Court that the competent Luxembourg authority had acknowledged that the transfer request was to be passed on to it via the relevant department of the institution . The Parliament had initially contacted the Fund to ascertain the sum of Mrs Decker' s pension rights with a view to having those rights transferred to the Community scheme and the Fund had subsequently sent to the Parliament a statement of Mrs Decker' s transferable contributions .

15 In such circumstances, and notwithstanding the existence of a time-limit for the exercise of the entitlement to transfer the pension rights, the competent national authority is, by reason of the legitimate expectation on the part of the Community official which has thus been created, obliged to guarantee that the transfer entitlement can be effectively exercised if the official concerned takes the necessary initiative within the time-limit . It follows that the expiry of such a time-limit may not be relied on as against a Community official whose transfer request was submitted within the period prescribed by national legislation to his Community institution, in conformity with the abovementioned administrative practice, where the fact that that period expired was beyond his control .

16 Consequently the answer given to the question referred by the national court must be that Article 11 ( 2 ) of Annex VIII to the Staff Regulations must be interpreted as not precluding a Member State from providing that request to transfer pension rights are to be submitted within one year, failing which they will not be admitted . However, the national authorities may not rely on the expiry of such a period as against a Community official who has submitted his transfer request to his Community institution within the period prescribed by national legislation when the submission of the transfer request through that Community institution was in conformity with an administrative practice which had been established in regard to this matter between the Community institution and the competent national authority .

Decision on costs

Costs

17 The costs incurred by the Government of the Grand Duchy of Luxembourg, by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( Sixth Chamber ),

in answer to the question referred to it by the Cour de cassation of the Grand Duchy of Luxembourg by order of 9 April 1987, hereby rules :

Article 11 ( 2 ) of Annex VIII to the Staff Regulations must be interpreted as not precluding a Member State from providing that requests to transfer pension rights are to be submitted within one year, failing which they will not be admitted . However, the national authorities may not rely on the expiry of such a period as against a Community official who has submitted his transfer request to his Community institution within the period prescribed by national legislation when the submission of the transfer request through that Community institution was in conformity with an administrative practice which had been established with regard to this matter between the Community institution and the competent national authority .