1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 MAY 1980 GERHARD WILL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION OF THE COMMISSION DATED 11 DECEMBER 1978 BY WHICH THE PROVISIONS OF ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC ( HEREINAFTER REFERRED TO AS ' ' THE ECSC STAFF REGULATIONS ' ' ) WERE APPLIED TO THE APPLICANT AND THE NUMBER OF YEARS ' PENSIONABLE SERVICE TO BE CREDITED TO HIM UNDER THOSE PROVISIONS WAS DETERMINED .
2 THE SAID ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS WHOSE WORDING CORRESPONDS SUBSTANTIALLY TO THAT OF ARTICLE 107 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ), PROVIDES THAT AN OFFICIAL WHO FURNISHES EVIDENCE OF HAVING BEEN OBLIGED BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY TO FORFEIT IN WHOLE OR IN PART THE PENSION RIGHTS WHICH HAVE ACCRUED TO HIM IN HIS COUNTRY OF ORIGIN AND OF BEING UNABLE TO OBTAIN THE ACTUARIAL EQUIVALENT OF SUCH RIGHTS SHALL BE CREDITED , FOR THE PURPOSES OF HIS RETIREMENT PENSION IN THE COMMUNITY WITH ANNUAL CONTRIBUTIONS CORRESPONDING TO THE NUMBER OF YEARS OF PENSIONABLE SERVICE ACCRUED IN HIS COUNTRY OF ORIGIN . THE SAME ARTICLE PROVIDES THAT THE NUMBER OF YEARS OF PENSIONABLE SERVICE THUS CREDITED SHALL BE DETERMINED BY THE APPOINTING AUTHORITY OF THE INSTITUTION TO WHICH THE OFFICIAL BELONGS AFTER RECEIVING THE OPINION OF THE STAFF REGULATIONS COMMITTEE AND THAT IT SHALL NOT EXCEED EITHER THE NUMBER OF YEARS OF ACTUAL SERVICE WHICH IT WILL BE POSSIBLE FOR THE OFFICIAL TO COMPLETE UP TO THE AGE OF 65 YEARS , OR HALF THE NUMBER OF YEARS OF SERVICE WHICH UPON HIS ATTAINING THE AGE OF 65 YEARS WOULD BE REQUIRED FOR HIM TO COMPLETE 35 YEARS OF PENSIONABLE SERVICE .
3 THE APPLICANT ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE ECSC ON 15 OCTOBER 1956 . BEFORE THAT DATE HE WAS EMPLOYED BY THE GERMAN MUTUAL INSURANCE FUND FOR WORKERS IN STEEL FOUNDRIES AND ROLLING-MILLS ( HUTTEN- UND WALZWERKS-BERUFSGENOSSENSCHAFT HEREINAFTER REFERRED TO AS ' ' THE BERUFSGENOSSENSCHAFT ' ' ), A BODY INCORPORATED UNDER PUBLIC LAW AS DEFINED BY GERMAN LEGISLATION . FROM 1 JUNE 1953 HE HAD THE STATUS OF AN OFFICIAL ; HIS REMUNERATION WAS THEREFORE SUBJECT TO DEDUCTION OF PENSION CONTRIBUTIONS PURSUANT TO THE GERMAN CIVIL SERVICE LAW . PREVIOUSLY FROM 1 MARCH 1951 HE HAD WORKED FOR THE SAME BODY AS A CLERICAL EMPLOYEE WITHIN THE MEANING OF THE GERMAN CLERICAL STAFF LAW ( ANGESTELLTENVERSICHERUNGSGESETZ ); SINCE HE WAS NOT SUBJECT TO THE COMPULSORY PENSION INSURANCE SCHEME SET UP BY THAT LAW BECAUSE OF THE AMOUNT OF HIS REMUNERATION HE PAID VOLUNTARY CONTRIBUTIONS TO THE FEDERAL INSURANCE OFFICE FOR CLERICAL STAFF ( BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE , HEREINAFTER REFERRED TO AS ' ' THE CLERICAL INSURANCE OFFICE ' ' ).
4 WHEN HE ENTERED THE SERVICE OF THE COMMUNITY , THE APPLICANT HAD NOT COMPLETED THE QUALIFYING PERIOD OF 10 YEARS ' SERVICE PROVIDED FOR IN THE GERMAN CIVIL SERVICE LAW AS A CONDITION FOR THE GRANT OF A PENSION . IN THESE CIRCUMSTANCES , THE BERUFSGENOSSENSCHAFT WAS REQUIRED PURSUANT TO THE CLERICAL STAFF INSURANCE LAW TO INSURE THE APPLICANT RETROACTIVELY FOR THE PERIOD DURING WHICH HE HAD BEEN AN OFFICIAL . IT COMPLIED WITH THIS REQUIREMENT BY PAYING TO THE CLERICAL INSURANCE OFFICE AN AMOUNT CALCULATED BY REFERENCE TO THE PENSION FOR THAT PERIOD . THE APPLICANT FOR HIS PART PAID VOLUNTARY CONTRIBUTIONS TO THE SAID OFFICE DURING THE SAME PERIOD AND AFTER HIS ENTRY INTO THE SERVICE OF THE COMMUNITIES .
5 IT APPEARS FROM A LETTER OF THE CLERICAL INSURANCE OFFICE TO THE COMMISSION DATED 26 AUGUST 1976 THAT IT CONSIDERS THAT THE VOLUNTARY CONTRIBUTIONS PAID BY THE APPLICANT BOTH DURING HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT AND AFTER THE TERMINATION OF THAT EMPLOYMENT ARE TO BE CONSIDERED AS INSURANCE CONTRIBUTIONS SUPPLEMENTARY TO THE RETROACTIVE INSURANCE TAKEN OUT BY THE BERUFSGENOSSENSCHAFT ON THE APPLICANT ' S BEHALF .
6 IN THE CONTESTED DECISION THE COMMISSION CREDITED THE APPLICANT WITH YEARS OF PENSIONABLE SERVICE UNDER ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS . THE DECISION ON THE ONE HAND DETERMINES THE MAXIMUM OF YEARS OF PENSIONABLE SERVICE TO BE CREDITED UNDER THOSE PROVISIONS AT 5 YEARS , 5 MONTHS AND 3 DAYS , AND ON THE OTHER HAND FIXES THE NUMBER OF YEARS OF PENSIONABLE SERVICE ACTUALLY CREDITED AT 3 YEARS , 1 MONTH AND 15 DAYS .
7 AS TO THE AMOUNT OF THE MAXIMUM , THE APPLICATION REFERS TO A PERIOD OF 15 YEARS AND 18 DAYS WHICH OUGHT TO BE TAKEN INTO CONSIDERATION BUT THIS ALLEGATION WHICH IS UNSUPPORTED BY ANY EXPLANATIONS WAS NOT PURSUED AFTER THE EXPLANATIONS WHICH THE COMMISSION GAVE IN THIS RESPECT IN ITS DEFENCE .
8 ON THE OTHER HAND THE NUMBER OF YEARS OF PENSIONABLE SERVICE CREDITED IS DISPUTED BY THE APPLICANT FOR TWO REASONS . FIRST THE COMMISSION TOOK AS THE BASIS OF ITS CALCULATION THE WRONG NUMBER OF YEARS OF SERVICE , FAILING TO TAKE ACCOUNT OF THE PERIODS OF STUDY UNDERTAKEN BY THE APPLICANT BEFORE HE ENTERED THE SERVICE OF THE BERUFSGENOSSENSCHAFT . SECONDLY , THE COMMISSION OUGHT NOT TO HAVE TAKEN INTO ACCOUNT HIS VOLUNTARY INSURANCE CONTRIBUTIONS PAID TO THE CLERICAL INSURANCE OFFICE .
9 ACCORDING TO THE SCHEDULE TO THE DECISION UNDER REVIEW , IT WAS BASED ON THE FOLLOWING CALCULATION SO AS TO ARRIVE AT THE CREDIT OF 3 YEARS , 1 MONTH AND 15 DAYS ; ( A ) IT TOOK AS A BASIS FOR THE CALCULATION THE PERIOD DURING WHICH THE APPLICANT WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , THAT IS TO SAY 5 YEARS , 7 MONTHS AND 13 DAYS ; ( B)A COEFFICIENT OF 0.8332 WAS APPLIED TO THIS PERIOD SO AS TO TAKE ACCOUNT OF THE VOLUNTARY INSURANCE WHICH THE APPLICANT TOOK OUT WITH THE CLERICAL INSURANCE OFFICE ; ( C)A COEFFICIENT OF CONVERSION WAS THEN APPLIED SO AS TO GIVE THE ACTUARIAL EQUIVALENT OF THE PERIOD SO OBTAINED .
10 THE APPLICANT CONTESTS FIRST THE BASIS OF CALCULATION INDICATED AT ( A ). HE DOES NOT DENY THAT HE HAD ACTUALLY COMPLETED THE PERIOD TO WHICH THE DECISION REFERS AT THE TIME AT WHICH HE LEFT HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT IN 1956 . IN HIS VIEW HOWEVER THE PERIOD TAKEN AS A BASIS FOR CALCULATION SHOULD HAVE INCLUDED NOT ONLY THE ACTUAL DURATION OF EMPLOYMENT BUT ALSO THE PERIODS OF STUDY PRIOR TO THE EMPLOYMENT WHICH ACCORDING TO THE APPLICABLE GERMAN LEGISLATION ARE TO BE TAKEN INTO CONSIDERATION IN ORDER TO CALCULATE YEARS OF PENSIONABLE SERVICE .
11 IN SUPPORT OF THIS SUBMISSION THE APPLICANT CLAIMS THAT A GERMAN LAW OF 1 JULY 1957 INSERTED IN THE FEDERAL CIVIL SERVICE LAW A NEW ARTICLE 116A ACCORDING TO WHICH PERIODS OF STUDY PRIOR TO EMPLOYMENT ARE TO BE TAKEN INTO CONSIDERATION IN ORDER TO CALCULATE YEARS OF PENSIONABLE SERVICE . THAT LAW OF 1957 HAD RETROACTIVE EFFECT TO 1 SEPTEMBER 1953 AT WHICH DATE THE APPLICANT WAS STILL IN THE EMPLOYMENT OF THE BERUFSGENOSSENSCHAFT . THEREFORE THE SCHEME PROVIDED FOR IN THE LAW WAS MADE RETROACTIVELY APPLICABLE TO HIS SITUATION ; THIS SCHEME THEREFORE CAUSED PENSION RIGHTS TO ACCRUE TO HIM WHICH HE WAS OBLIGED TO FORFEIT BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY .
12 THE COMMISSION REJECTS THIS ARGUMENT . IT SUBMITS THAT ACCORDING TO ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS , THE CREDITING OF YEARS OF PENSIONABLE SERVICE CAN APPLY ONLY TO YEARS OF SERVICE WHICH HAVE ACCRUED TO THE OFFICIAL IN HIS COUNTRY OF ORIGIN AND THAT THE WORDING MUST BE INTERPRETED TO MEAN THAT THE ' ' ACCRUED ' ' YEARS OF SERVICE MUST ACTUALLY HAVE ACCRUED AT THE TIME WHEN THE OFFICIAL WAS OBLIGED TO FORFEIT HIS RIGHTS . THIS INTERPRETATION IS SUPPORTED BY THE GENERAL IMPLEMENTING PROVISIONS RELATING TO ARTICLE 107 OF THE STAFF REGULATIONS AND ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS , WHICH WERE ADOPTED BY THE COMMISSION ON 2 JULY 1969 AND PUBLISHED IN THE COURRIER DU PERSONNEL ( STAFF COURIER ) OF 29 JULY 1969 ( NO 77 , P . 601 ). ARTICLE 7 OF THE GENERAL PROVISIONS EXPRESSLY MAKES THE CREDIT DEPEND ON THE NATIONAL PENSION SCHEME AS IT APPLIED TO THE OFFICIAL ' ' AT THE MOMENT WHEN HE WAS OBLIGED TO FORFEIT THESE RIGHTS ' ' .
13 THE COMMISSION ' S SUBMISSION MUST BE ACCEPTED . CREDITS FOR YEARS OF PENSIONABLE SERVICE PROVIDED FOR IN ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS AND IN ARTICLE 107 OF THE STAFF REGULATIONS ARE INTENDED TO PROVIDE WITHIN THE FRAMEWORK OF THE COMMUNITY PENSION SCHEME SOME COMPENSATION FOR PENSION RIGHTS WHICH THE OFFICIAL HAD ALREADY ACQUIRED BUT WHICH HE WAS OBLIGED TO FORFEIT BY REASON OF HIS APPOINTMENT BY ONE OF THE COMMUNITIES . THE RIGHTS WHICH HE IS OBLIGED TO FORFEIT ARE THOSE WHICH HE HAS ACQUIRED AT THE TIME OF THE TERMINATION OF HIS PREVIOUS DUTIES ; SUBSEQUENT NATIONAL LEGISLATION CANNOT HAVE THE EFFECT OF MODIFYING FOR THE PURPOSE OF DETERMINING SUCH COMPENSATION THE CALCULATION OF THE RIGHTS WHICH HE HAD ACQUIRED AT THAT TIME .
14 THE SAME APPLIES WHERE NATIONAL LEGISLATION WHICH COMES INTO EFFECT AFTER THE TERMINATION OF NATIONAL EMPLOYMENT HAS A RETROACTIVE EFFECT TO A DATE PRIOR TO THAT TIME . THE OFFICIAL CANNOT BE DEEMED TO HAVE FORFEITED PENSION RIGHTS BY REASON OF HIS ENTERING THE SERVICE OF ONE OF THE COMMUNITIES WHEN THOSE RIGHTS HAVE NOT ACCRUED TO HIM AT THE ACTUAL TIME AT WHICH HE CEASES TO PURSUE HIS PREVIOUS EMPLOYMENT .
15 IT FOLLOWS THAT THE FIRST HEAD OF THE APPLICANT ' S CLAIMS IS UNFOUNDED .
16 THE APPLICANT FURTHER DISAGREES WITH THE APPLICATION IN THE CONTESTED DECISION OF A COEFFICIENT OF 0.8332 TO THE NUMBER OF YEARS DURING WHICH HE WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , SO AS TO TAKE ACCOUNT OF THE VOLUNTARY INSURANCE WITH THE CLERICAL INSURANCE OFFICE . IN HIS VIEW , TO TAKE INTO ACCOUNT VOLUNTARY CONTRIBUTIONS IS EQUIVALENT TO CONFISCATING AN OFFICIAL ' S SAVINGS AND IS IN ANY CASE CONTRARY TO THE WORDING AND TO THE PURPOSE OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS .
17 THE COMMISSION SUBMITS THAT IT IS ENTITLED TO TAKE PENSION RIGHTS WHICH THE OFFICIAL HAS RETAINED AFTER ENTRY INTO SERVICE WITH THE COMMISSION INTO CONSIDERATION IN ORDER TO CALCULATE THE VALUE OF LOST PENSION RIGHTS WHICH ARE TO BE MADE GOOD IN ACCORDANCE WITH THE SAID PROVISIONS , EVEN IF THOSE RIGHTS ARE BASED IN PART ON VOLUNTARY CONTRIBUTIONS . THE PURPOSE OF THE RULES APPLICABLE IS TO GRANT COMPENSATION FOR A DEFICIT IN PENSION WHICH CANNOT BE MADE GOOD IN ANY OTHER WAY SO THAT IT IS NOT APPROPRIATE TO GRANT THESE BENEFITS WHERE THERE IS NO SUCH DEFICIT .
18 MOREOVER THE COMMISSION POINTS OUT THAT ARTICLE 4 OF THE GENERAL IMPLEMENTING PROVISIONS MENTIONED ABOVE PROVIDES EXPRESSLY THAT PENSION RIGHTS WHICH THE OFFICIAL HAS BEEN OBLIGED TO FORFEIT ARE RETIREMENT PENSION RIGHTS UNDER A ' ' STATUTORY OR CONTRACTUAL ' ' PENSION SCHEME .
19 THE APPLICANT REPLIES THAT THE SAID ARTICLE 4 IS BASED ON AN INCORRECT INTERPRETATION OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS AND ARTICLE 107 OF THE STAFF REGULATIONS ; HE THEREFORE REQUESTS THE COURT TO DECLARE THE SAID ARTICLE 4 NULL AND VOID .
20 IT APPEARS FROM THE FILE THAT THE VOLUNTARY CONTRIBUTIONS PAID BY THE APPLICANT TO THE CLERICAL INSURANCE OFFICE AMOUNTED TO 46 , OF WHICH 17 WERE PAID DURING THE PERIOD WHEN THE APPLICANT WORKED AS A CLERICAL OFFICER OF THE BERUFSGENOSSENSCHAFT ( 1951 TO 1953 ), 13 DURING THE PERIOD WHEN HE HAD THE STATUS OF AN OFFICIAL WITH THAT INSTITUTION ( 1953 TO 1956 ), AND 16 AFTER THE TERMINATION OF HIS EMPLOYMENT IN DECEMBER 1957 . A COMPARISON OF THE APPLICABLE GERMAN LEGISLATION WITH THE INFORMATION IN THE FILE SHOWS THAT THESE 16 VOLUNTARY CONTRIBUTIONS , WHILST PAID AFTER THE TERMINATION OF EMPLOYMENT , WERE INTENDED TO COVER INSURANCE PERIODS BETWEEN 1 JANUARY 1955 AND THE TERMINATION OF EMPLOYMENT AS SUPPLEMENTARY CONTRIBUTIONS WITHIN THE MEANING OF THE CLERICAL STAFF PENSION REFORM LAW OF 23 OCTOBER 1957 ( ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ ).
21 IT SHOULD BE RECALLED MOREOVER THAT THE BERUFSGENOSSENSCHAFT TOOK OUT INSURANCE RETROACTIVELY FOR THE APPLICANT FOR THE PERIOD DURING WHICH HE HAD THE STATUS OF A GERMAN CIVIL SERVANT ( 1953 TO 1956 ) BY PAYING AN AMOUNT REPRESENTING THE PENSION CALCULATION FOR THAT PERIOD TO THE CLERICAL INSURANCE OFFICE , WHICH CONSIDERS THAT THE VOLUNTARY CONTRIBUTIONS MADE BY THE APPLICANT MUST BE TREATED IN THE SAME WAY AS SUPPLEMENTARY INSURANCE CONTRIBUTIONS WITHIN THE MEANING OF GERMAN LAW .
22 IN THESE CIRCUMSTANCES THE COMMISSION WAS ENTITLED TO TAKE INTO ACCOUNT , IN ORDER TO CALCULATE THE PENSION RIGHTS WHICH THE APPLICANT WAS OBLIGED TO FORFEIT WITHIN THE MEANING OF ARTICLE 102 ( 2 ) OF THE ECSC STAFF REGULATIONS BY REASON OF HIS ENTERING THE SERVICE OF THE COMMUNITY , THE PENSION RIGHTS RETAINED BY VIRTUE OF VOLUNTARY INSURANCE WITH THE CLERICAL INSURANCE OFFICE . IN THIS RESPECT THE COMMISSION HAS THEREFORE CORRECTLY INTERPRETED THE SAID ARTICLE 102 ( 2 ); CONSEQUENTLY ARTICLE 4 OF THE GENERAL IMPLEMENTING PROVISIONS IS NOT INCOMPATIBLE WITH THE PROVISIONS OF THE ECSC STAFF REGULATIONS .
23 THE COURT HOWEVER CONSIDERS THAT THE 16 VOLUNTARY CONTRIBUTIONS WHICH THE APPLICANT PAID AFTER THE TERMINATION OF HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT SHOULD BE TREATED DIFFERENTLY . IT APPEARS FROM THE CONSIDERATIONS SET OUT THAT THE DATE TO BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING LOST AND RETAINED PENSION RIGHTS SO AS TO MAKE SUCH RIGHTS GOOD WITHIN THE FRAMEWORK OF THE COMMUNITY PENSION SCHEME IS THE DATE AT WHICH THE OFFICIAL TERMINATES HIS PREVIOUS EMPLOYMENT IN ORDER TO ENTER THE SERVICE OF ONE OF THE COMMUNITIES .
24 THE COMMISSION WAS NOT THEREFORE ENTITLED TO TAKE INTO ACCOUNT THE VOLUNTARY CONTRIBUTIONS WHICH THE APPLICANT PAID AFTER HIS ENTRY INTO THE SERVICE OF THE COMMUNITY PURSUANT TO NATIONAL LEGISLATION WHICH CAME INTO EFFECT AFTER THAT DATE .
25 IT FOLLOWS FROM THE FOREGOING THAT THE CONTESTED DECISION MUST BE ANNULLED TO THE EXTENT TO WHICH THE APPLICATION OF THE COEFFICIENT OF 0.8332 TO THE PERIOD OF 5 YEARS , 7 MONTHS AND 13 DAYS OF PENSIONABLE SERVICE , CORRESPONDING TO THE PERIOD DURING WHICH THE APPLICANT WAS EMPLOYED BY THE BERUFSGENOSSENSCHAFT , REPRESENTS THE RETENTION OF THE APPLICANT ' S PENSION RIGHTS BASED ON THE PAYMENT OF 16 VOLUNTARY CONTRIBUTIONS WHICH HE MADE TO THE CLERICAL INSURANCE OFFICE AFTER THE TERMINATION OF HIS EMPLOYMENT WITH THE BERUFSGENOSSENSCHAFT .
26 THE REMAINDER OF THE APPLICATION MUST BE REJECTED .