C-54/70

JUDGMENT OF 1. 4. 1971 — CASE 54/70 LANDRA v COMMISSION

CELEX: 61970CJ0054
Datum: 1971-04-01
Källa: eur-lex.europa.eu

THE COURT (Second Chamber) composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges, Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

1. The facts and procedure may be summarized as follows: On 4 October 1965 the applicant was engaged by the High Authority of the ECSC as a member of the auxiliary staff. He continued in this capacity until 30 September 1968. In accordance with Article 70 of the Conditions of Employment of Other Servants of the Communities (hereinafter referred to as the Conditions of Employment) he was affiliated during this period to the Caisse de pension des employés privés (Pension fund for employees in the private sector), a Luxembourg organization. Since 1 October 1968 he has been in the service of the Commission as an official. In a letter dated 18 December 1969 the applicant requested the Assistant Director-General for Personnel and Administration to confirm that in pursuance of Article 3 (c) of Annex VIII to the Staff Regulations of Officials, his entire period of service on the auxiliary staff would be taken into account in calculating the years of pensionable service which he has acquired or will acquire for the purposes of his retirement pension. In a letter dated 2 April 1970 the defendant informed him that the provision applicable in this instance was not Article 3 but Article 11 (2) of Annex VIII to the Staff Regulations. The applicant was therefore asked to indicate whether his request was to be regarded as based on the said Article 11. On 30 April 1970 the applicant submitted a request under Article 90 of the Staff Regulations of Officials for the provisions of the abovementioned Article 3 to be applied in his favour. This request was received by the competent branch of the Commission on 5 May 1970, but as no reply was made thereto, the applicant lodged the present application on 28 August 1970.

2. Upon hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General the Court (Second Chamber) decided to open the oral procedure without holding any preliminary enquiry. The parties presented oral argument at the hearing on 4 February 1971. The Advocate-General delivered his opinion at the hearing on 4 March 1971.

II — Conclusions of the parties

The applicant claims that the Court should:

rule that Article 3(c) of Annex VIII to the Staff Regulations applies to the applicant's periods of service on the auxiliary staff of the Communities;

accordingly, vary the Commission's implied decision of rejection which followed the representations through official channels received on 5 May 1970;

rule that Article 11 (2) of Annex VIII to the Staff Regulations is inapplicable;

rule that the Commission of the European Communities shall bear the costs of the action.

The defendant contends that the Court should:

dismiss the application in its entirety as unfounded;

order the applicant to pay the costs.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

The sole issue in this case is whether, in calculating the years of pensionable service acquired by the applicant for the purposes of his retirement pension, the defendant is entitled or is even obliged to take account of his period of service on the auxiliary staff of the ECSC.

In this connexion the applicant puts forward the following principal considerations:

a) The refusal to apply in his favour Article 3 (c) of Annex VIII to the Staff Regulations is contrary to the wording of that provision. This provision in fact requires the consideration of ‘periods of service in any other capacity in accordance with the Conditions of Employment … , provided that the servant concerned has paid his share of the pension contribution in respect of such periods of service’. The ‘capacities’ referred to by those Conditions of Employment are those of temporary staff, auxiliary staff, local staff and special advisers. The abovementioned provision therefore applies to each of these categories of staff, in view of the fact that the phrase ‘the pension contribution in respect of such periods of service’ covers all the contributions imposed on these categories by the Conditions of Employment in question.

b) The defendant's attitude is also contrary to the spirit of the Staff Regulations which provide in Article 48 of Annex VIII that: ‘If an official so requests, his pension rights shall, notwithstanding any provisions to the contrary in the Staff Regulations, be computed from the date on which he entered the service of an institution of one of the three European Communities in any capacity whatever’. In order to reach a proper understanding of the scope of this provision it has to be remembered that under the scheme established in the ECSC Staff Regulations of 1956 the auxiliary staff — for whom no provision was made by the Staff Regulations but who were nevertheless recruited in large numbers by the institutions — alone had not been affiliated to the Community provident scheme. On the other hand, according to the first paragraph of Article 48 of Annex VIII to the Staff Regulations of 1962, officials to whom this scheme had applied were automatically affiliated to the new Communities pension scheme. As regards the auxiliary staff who became officials by virtue of the transitional provisions of these Staff Regulations, the second paragraph of the same article entitles them, ‘by payment in instalments, to buy in the pension rights for which [they] had been unable to contribute’, that is, to affiliate themselves ex tunc to the Community pension scheme. If there is to be no discrimination between, first, those members of the auxiliary staff who were established before or at the time of the entry into force of the Staff Regulations of 1962 and, secondly, those who were established subsequently, the latter must be acknowledged to have a similar right.

c) To take into account the earlier affiliation to another pension fund corresponds to the demands of fairness and social justice. Far from sanctioning an exceptional solution, it represents a concept which is becoming the rule in Community and international law. In support of this statement the applicant refers to:

Articles 117 and 118 of the EEC Treaty;

the bilateral agreements in social security matters concluded between the Member States as well as the Community regulations adopted on this subject;

Regulation No 5/63/Euratom and No 100/63/EEC of 10 July 1963 which was adopted pursuant to Article 83(3) of the Staff Regulations of Officials by the Councils of the EEC and the ECSC, as well as by the former Committee of Presidents of the ECSC (OJ No 130 of 24.8.1963, p. 2301).

d) Article 11(2) of Annex VIII to the Staff Regulations does not apply to the applicant, because:

this provision requires the individual concerned to have entered the service of the Communities as an official;

it assumes that the pension rights previously acquired were so acquired in government administrations or organizations outside the Communities.

e) Should the Court not accept that Article 3 of Annex VIII to the Staff Regulations obliges the defendant to take automatically into consideration the periods in dispute, the applicant declares that he is prepared to pay into the Community pension fund the sum which he obtains from the Luxembourg fund, as increased by the difference between the sum which he would have paid had he been affiliated to the Community scheme from the beginning and that which he has in fact paid into that fund. Such a method corresponds to the procedure suggested by Articles 11 and 48 of the said Annex VIII.

The defendant puts forward the following main considerations:

a) By the phrase ‘pension contribution in respect of such periods of service’ Article 3 of Annex VIII to the Staff Regulations refers solely to the contributions paid to the pension scheme of the Communities, as laid down by Article 83 of the Staff Regulations in relation to officials, and by Articles 39 and 41 of the Conditions of Employment in relation to temporary servants. Under the system established in the Staff Regulations, far from constituting a gratuitous benefit, the acquisition of a retirement pension is linked to the payment of the contributions provided for in the pension scheme of the Communities. Contributions paid into funds outside the Communities cannot therefore automatically give rise to rights to a Community pension. In this connexion the defendant refers to: Only to the extent to which the provisions of the Staff Regulations provide specially for the repayment into the Community pension scheme of contributions paid earlier into a national pension scheme can officials acquire rights under the Community scheme corresponding to the amounts for which they had not made any direct contributions. The Conditions of Employment contain no provision regarding the auxiliary staff similar to Article 40 whereby any periods of service on the temporary staff are to be taken into account for the purpose of calculating pension rights when a temporary servant is recruited as an official.

Article 83 of the Staff Regulations;

Articles 36, 38 and 49 of Annex VIII to the Staff Regulations;

Articles 39 to 41 of the Conditions of Employment;

Article 112 of the ‘General Rules of the Community’ and Article 3 of Annex II to the Provisional Staff Regulations, both of which applied to the servants of the ECSC before the entry into force of the Staff Regulations of 1956.

b) The applicant fails to appreciate the scope and aim of Article 48 of Annex VIII to the Staff Regulations. This provision only applies to officials to whom the Staff Regulations apply as a result of the transitional provisions, as is shown by the phrase ‘notwithstanding any provisions to the contrary in the Staff Regulations’, which is synonymous with ‘as an exception to all the rules contained in the Staff Regulations’. As the exception thus confirms the rule, Article 48 is calculated to refute the applicant's argument. The ‘auxiliaries’ on whom the ECSC had to rely before the entry into force of the Staff Regulations of 1962 — and who should not be confused with the auxiliaries referred to by the Conditions of Employment — did not form part of the staff governed by the Staff Regulations of 1956, with the result that the transitional provisions of the Staff Regulations of 1962 (cf. Article 93 thereof) did not provide for their establishment. As a result, Article 48 does not concern them.

c) It is unnecessary to check whether the applicant's description of the provisions of the Treaty and the systems of social security is correct. It is sufficient to note that the scheme advocated by the applicant is not that provided for in the Staff Regulations.

d) The applicant is perfectly entitled to request the application of Article 11 (2) of Annex VIII:

The phrase ‘An official who enters the service of one of the Communities’, appearing in this provision, may not be interpreted as referring solely to those individuals who became officials at the beginning of their career in the Communities. It simply refers to the consequences of an individual's becoming an official.

The argument based on the fact that the rights referred to by the applicant have been acquired in the service of the Communities is also irrelevant. The important factor is that, in accordance with the Community provisions (Article 70 of the Conditions of Employment), the applicant has been affiliated to a national pension fund. Furthermore, it is difficult to refuse to apply Article 11 to an official who has previously had certain links with the Communities when it is applied to officials who are recruited directly from outside.

e) The applicant's offer to pay into the Community pension fund the amounts to which he has referred is based on a mistaken interpretation of the Article 3 in dispute. Neither this article nor any other provision in the Staff Regulations provides for a method of funding such as that considered by the applicant. Although certain provisions (Articles 4, 48 and 49 of Annex VIII to the Staff Regulations and the fourth paragraph of Article 40 of the Conditions of Employment) enable certain payments to be made a posteriori, after which Article 3 of Annex VIII applies, they only concern transitional or exceptional situations. Moreover, the aim of such payments is precisely to ensure either that all the contributions provided for in the pension scheme of the Communities are paid for or that a sum corresponding to these contributions is transferred to this scheme. The applicant's proposal disregards Articles 11 and 48 of Annex VIII to the Staff Regulations. Article 48 is not applicable to him (see above, under (b)). Article 11 applies to cases in which the pension rights are not determined by applying Article 3 of that Annex, but by the conversion of the actuarial equivalent or of the fixed sum repaid to the individual concerned from the pension fund of another organization, that is, by a different method.

Grounds of judgment

1. The application seeks the annulment of the implied decision of the Commission rejecting the applicant's request for his period of service on the auxiliary staff of the Communities to be taken into account in calculating the years of pensionable service which he has acquired for the purposes of his retirement pension.

2. The applicant considers that he is entitled to have the above period taken into account under Article 3 (c) of Annex VIII to the Staff Regulations of Officials.

3. Under Article 2 of the Annex: ‘A retirement pension shall be payable on the basis of the total number of years of pensionable service acquired by the official’.

4. Under Article 3 of the same Annex: ‘For the purpose of calculating years of pensionable service within the meaning of Article 2, the following shall be taken into account: (a) … (b) … (c) … periods of service in any other capacity in accordance with the Conditions of Employment of Other Servants of the Communities’ — hereinafter referred to as the ‘Conditions of Employment’ —, ‘provided that the servant concerned has paid his share of the pension contribution in respect of such periods of service’.

5. The applicant maintains that the phrase ‘pension contribution in respect of such period of service’ includes contributions paid by the auxiliary staff of the Communities to non-Community social security schemes; such contributions are in fact ‘provided for’ by Article 70 of the Conditions of Employment.

6. Notwithstanding the wording of Article 3 (c) this interpretation does not withstand a systematic examination of the provisions concerning the pension scheme for Community servants.

7. The reason for this is that, by providing that ‘Benefits paid under this pension scheme shall be charged to the budget of the Communities’ and that ‘Officials shall contribute one third of the cost of financing this pension scheme’, Article 83 of the Staff Regulations of Officials establishes a close correlation between the acquisition of the retirement pension and the financing, by the individual concerned, of the fund created for the purposes of paying such pension.

8. Therefore, unless a clear exception is laid down, contributions to a scheme outside the Communities cannot automatically give rise to the acquisition of Community pension rights; moreover, the acquisition of such rights might be wholly superfluous since it would be in addition to the years of pensionable service which the individual concerned has already been able to acquire within the context of such scheme.

9. Considered in its context, Article 3 of Annex VIII to the Staff Regulations of Officials may not be understood to lay down such an exception. Paragraph (a) of this provision refers to officials in active employment, on secondment or on leave for military service, as regards whom the respective Articles 83 (2), 38 (e) and the second paragraph of Article 42 of the Staff Regulations lay down that they only acquire Community pension rights if they pay into the pension fund of the Communities the corresponding contributions.

10. Similar considerations apply to Article 3 (b) relating to officials who have non-active status or who have been retired in the interests of the service, as Article 37 of Annex VIII to the Staff Regulations provides that such an official ‘shall continue to pay the contribution’ to the pension scheme ‘… up to a maximum of five years as provided in Article 3’.

11. As regards paragraph (c) of this article it must be remembered that the second paragraph of Article 40 and Article 41 of the Conditions of Employment provide respectively that ‘Any period of service on the temporary staff of one of the three European Communities shall be taken into account for the purpose of calculating years of pensionable service as provided for in Annex VIII to the Staff Regulations’ and that, as regards the funding of this scheme, ‘Article 83 of the Staff Regulations shall apply by analogy’.

12. As the Conditions of Employment contain no identical or similar provisions for the auxiliary staff it must be concluded that they are not referred in Article 3 (c) of Annex VIII to the Staff Regulations.

13. The applicant states that, in the light of the second paragraph of Article 48 of Annex VIII in particular, this interpretation is contrary to the spirit of the Staff Regulations. This paragraph provides that: ‘If an official so requests, (his) pension rights shall, notwithstanding any provisions to the contrary in the Staff Regulations, be computed from the date on which he entered the service of an institution of one of the three European Communities in any capacity whatever’.

14. However, Article 48 comes under the ‘transitional provisions’ of Annex VIII and, according to its first paragraph, only applies to an ‘official to whom the Staff Regulations are applied pursuant to the transitional provisions’ of that Annex, that is, it refers to a situation which is quite different from that of servants who, like the applicant, have been engaged as auxiliaries under the Staff Regulations of 1962.

15. Moreover, the second paragraph of the same Article shows that, to the extent to which the official referred to therein has not contributed under the previous Community provident scheme, his earlier periods of service can only be taken into account provided that ‘by payment in instalments, he is able to buy in the pension rights for which he had been unable to contribute’, with the result that Article 48 confirms the principle of the close correlation between the contributions made and the years of pensionable service acquired.

16. In support of his argument the applicant again maintains that, contrary to the view held by the defendant, he cannot benefit from the provisions of Article 11 (2) of Annex VIII which enable certain officials to acquire additional years of pensionable service by paying certain sums to the Communities corresponding to the rights which they have acquired in relation to non-Community pension funds.

17. According to the applicant, these provisions require the individual concerned first to have been an official since he entered the service of the Communities and, secondly, to have been in the service of a government administration or organization outside the Communities before being appointed an official therein.

18. Although the wording of Article 11 (2) of Annex VIII to the Staff Regulations appears to confirm these arguments, the defendant has, however, rightly maintained that there is no justification for refusing to grant this facility to officials who, from before their appointment, have had certain links with the Communities, when they are applied to officials who are recruited directly from outside and who are clearly referred to by the provision in question.

19. Finally, in the course of the proceedings the applicant declared that should the Court not accept that Article 3 of Annex VIII is automatically applicable to him he was prepared to pay into the Community pension fund the sum which he would obtain from the Luxembourg fund to which he had been affiliated as a member of the auxiliary staff of the Communities, as increased by the difference between the sum which he would have paid had he been affiliated to the Community scheme from the beginning and that which he has in fact paid into this fund.

20. He maintains that this offer ‘is only based upon a procedure suggested by Articles 11 and 48 of the same Annex VIII to the Staff Regulations’.

21. However, no provision of the Staff Regulations provides for such a method of funding as that suggested by the applicant in order for the periods of service for which he has not contributed to the Community pension scheme to be taken into account.

22. In these circumstances, the present application must be dismissed as unfounded.

Costs

23. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

24. The applicant has failed in his submissions.

25. However, under the terms of Article 70 of the Rules of Procedure in proceedings by servants of the Communities institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials, especially Articles 38, 42 and 83, and Articles 2, 3, 11, 37 and 48 of Annex VIII; Having regard to the Conditions of Employment of Other Servants of the Communities, especially Articles 40, 41 and 70; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; THE COURT (Second Chamber) hereby:

1 Dismisses the application as unfounded;

2 Orders the parties to bear their own costs.