Case C-227/04 P: Appeal brought on 2 June 2004 by Marie-Luise Lindorfer against the judgment delivered on 18 March 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-204/01 between M.-L. Lindorfer and Council of the European Union
Date: 2004-07-24
Institutions: Court of Justice
Subjects: Council of the European Union, European official, General Court (EU), action for annulment (EU), equal treatment, free movement of workers, transfer of pension rights

C 190/10

EN

Official Journal of the European Union

24.7.2004

Appeal brought on 2 June 2004 by Marie-Luise Lindorfer
against the judgment delivered on 18 March 2004 by the
Fifth Chamber of the Court of First Instance of the Euro-
in Case T-204/01 between M.-L.
pean Communities

Lindorfer and Council of the European Union

(Case C-227/04 P)

(2004/C 190/17)

An appeal against the judgment delivered on 18 March 2004
by the Fifth Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-204/01 between M.-L. Lindorfer
and Council of the European Union was brought before the
Court of Justice of the European Communities on 2 June 2004
by Marie-Luise Lindorfer, represented by G. Vandersanden and
L. Levi.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of the

European Communities in Case T-204/01;

— consequently, uphold the applicant's claims at first instance

and, accordingly;

— annul the defendant's decision of 3 November 2000 fixing
at 5 years, 5 months and 8 days the number of years of
pensionable service to be taken into account for the appli-
cant's Community pension following the transfer of her
pension rights acquired in Austria prior to her entry into
the service of the European Communities and, in so far as
necessary, annul the Council decision, dated 31 May 2001,
to reject the applicant's complaint of 2 February 2001;

— order the defendant to fix again, on an amended legal basis
devoid of all illegality, the years of pensionable service to
be taken into account
the applicant's Community
pension following the transfer of her pension rights
acquired in Austria;

for

— order the defendant

to pay the costs incurred at

first

instance and in the appeal.

Pleas and main arguments

The Court of First Instance has infringed Article 141 EC and
Article 10(4)(b) of the general implementing provisions (1) and
breached the principle of non-discrimination and the duty to
provide reasons.

By considering that the Council was entitled to take account, in
the conversion formula, of actuarial factors related to the age
and sex of the official, the Court disregarded the principle of
non-discrimination, in particular in so far as it concerns equal
treatment between men and women.
In connection with a
formula for transferring pension rights acquired in one scheme
level – to the Community scheme, the Court
– at national

endorsed the taking into consideration of a factor which makes
a distinction between workers according to their sex and treats
female workers less favourably and justified use of such a
formula on budgetary grounds. Furthermore, the Court disre-
garded its obligation to provide a statement of reasons by
failing to answer the applicant's argument seeking to demon-
strate that the budget would not be put out of balance by
account being taken of an actuarial factor when transferring
the years-served to the Communities pensions scheme.

The Court did not take a position on the validity of the exis-
tence of two possible choices, each intended to implement
Article 11(2) of Annex VIII to the Staff Regulations, albeit in
different ways, which took account of the date of transfer of
pension rights on the one hand or of the date on which the
official was established. Moreover, by focusing only on the
basic salary of the official upon retirement and by failing to
examine,
in addition, the number of years served, the Court
failed to answer the applicant's argument and failed to fulfil its
obligation to provide reasons.

The Court came to erroneous conclusions in law with respect
to the facts, in particular those put forward as examples by the
applicant. Even supposing that fluctuations in national curren-
cies are the result of circumstances extraneous to the Commu-
nities, that in no way exonerates them from ensuring that they
observe the principle of non-discrimination, in particular in so
far as concerns their staff, nor from laying down, in accordance
with that principle, the rules for transferring to the Community
pensions scheme the pension rights acquired in a national
scheme. That means, specifically, that the Council cannot use
conversion rate formulas which do not observe the principle pf
non-discrimination. However, it has been proved that that is
the case. Indeed, there is no difference between the amounts
transferred initially from a national pension scheme, in terms
of the principle of non-discrimination, irrespective of whether
they come from a ‘week-currency’ country or from a ‘strong-
currency’ country. First, the Court found that the manner in
which such amounts were treated varied according to the
status of the country concerned and that transfers from ‘week-
currency’ countries were treated more favourably. Finally, the
Court failed to examine, and thus to show, in what way such
differentiated treatment is objectively justified. The fact that it
is the result of circumstances outwith the control of
the
Communities does not constitute such justification since it is
there were to be two
the Council which decided that
approaches and it is again itself which decides to whom to
apply them.

(1) Decision of the Council of 13 July 1992