Court of Justice of the European Communities (including Court of First Instance Decisions)

Officials - Pensions - Pension rights acquired before entering the service of the Communities - Transfer to the Community scheme - Submission of the request - Time-limit - Not enforceable against members of the temporary staff
( Staff Regulations, Annex VIII; Art . 11 ( 2 ); Conditions of Employment of Other Servants, Article 39 ( 2 ) )

Having regard to the basic difference between the situation of an official under the Staff Regulations and the contractual position of a member of the temporary staff, a provision adopted in order to give effect to Article 11 ( 2 ) of Annex VIII to the Staff Regulations which lay down the period within which officials must submit requests for the transfer to the Community pension scheme of rights acquired before entering the service of the Communities may not, without contravening the principle of legal certainty, be applied to members of the temporary staff in the absence of any specific provision dealing with their particular situation .

In Case 124/87
Giovanna Gritzmann-Martignoni, a member of the temporary staff of the Joint Research Centre in Ispra, represented by Giuseppe Marchesini, an advocate at the Italian Court of Cassation, with an address for service in Luxembourg at the Chambers of Victor Biel, 18 A rue des Glacis,
applicant,
Commission of the European Communities, reprsented by its Legal Adviser Giuliano Marenco, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg,
defendant,
ACTION for the annulment of the Commission' s memorandum dated 20 May 1986 refusing the applicant' s request for transfer to the Community scheme of pension rights acquired prior to her appointment as a member of the temporary staff,
THE COURT ( First Chamber )
composed of : G . Bosco, President of Chamber, R . Joliet and F . Schockweiler, Judges,
Advocate General : C . O . Lenz
Registrar : B . Pastor, Administrator
having regard to the Report for the Hearing and further to the hearing on 20 April 1988,
after hearing the opinion of the Advocate General delivered at the sitting on 4 May 1988,
gives the following
Judgment

1 By an application lodged at the Court Registry on 9 April 1987, Giovanna Gritzmann-Martignoni, a member of the temporary staff at the Joint Research Centre in Ispra, brought an action for the annulment of the Commission' s decision contained in its memorandum of 20 May 1986, refusing the applicant' s request for the transfer to the Community pension scheme of the actuarial equivalent of her national pension rights .
2 Such transfer is provided for in Article 11 ( 2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities ( hereinafter referred to as the "Staff Regulations "). Under that provision, an official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking has the right, on becoming established with the Communities, to pay to them either the actuarial equivalent of retirement pension rights previously acquired by him or the sums repaid to him on leaving his former post .
3 The general provisions for giving effect to this article, adopted under Article 110 of the Staff Regulations, stipulated in their original version, which entered into force on 1 July 1969, that the request for such transfer had to be made, on pain of losing the right to do so, within a period of six months from the date of notification of the official' s establishment . Following the deletion on 4 February 1972 of the words "on pain of losing the right to do so", the current version, dated 16 March 1977, of the general provisions for giving effect to Article 11 ( 2 ) states that the request must be made not later than six months after either the date of notification of the establishment of the official or the date on which transfer becomes possible .
4 In the Staff Courier of 14 June 1978, the Commission informed officials affiliated to the Istituto nazionale italiano della previdenza sociale ( INPS ) that the transfer of their pension rights to the Community pension scheme was henceforth possible under the terms of an agreement entered into by INPS and the European Community . The Commission pointed out in the notice that in accordance with the applicable provisions requests had to be submitted within a period of six months from the date of publication of the notice . The same information was sent to officials and members of the temporary staff serving at the Joint Research Centre in Ispra in a memorandum dated 13 July 1978 from the head of Personnel and Administration Division at the Centre .
5 On 6 June 1985, the applicant, who was engaged as a member of the temporary staff in October 1976, submitted a request seeking a proposal for the transfer to the Community pension scheme of her pension rights acquired under the Italian national scheme .
6 By a memorandum of 2 August 1985, the head of the Financial and Administrative Rights Division of the Commission' s Directorate-General for Personnel and Administration replied to her that under the general provisions for giving effect to Article 11 ( 2 ) of Annex VIII to the Staff Regulations her request should have reached the Commission before 31 December 1978; however, a decision adopted by the Commission on 12 December 1984 allowed officials who had submitted requests after the expiry of the time-limit to benefit from the application of Article 11, except that any increase in capital occurring after the date of establishment would not be taken into account . Accordingly, a transfer proposal drawn up on the basis of that Commission decision would be sent to the applicant in due course .
7 By a memorandum dated 20 May 1986, the Director for Administration of the Commission informed the applicant that the memorandum of 2 August 1985 was based on an erroneous interpretation of the Commission' s decision of 12 December 1984 and that, consequently, her request could not be granted because the time-limit had expired .
8 In support of her action for the annulment of the Commission' s decision contained in the memorandum of 20 May 1986 the applicant alleges a breach of the principle of protection of legitimate expectations and of the general provisions for giving effect to Article 11 ( 2 ), claiming in particular that the period within which a request for transfer may be lodged does not constitute a limitation period .
9 The Commission disputes the arguments advanced and submits that the action should be dismissed .
10 Reference is made to the Report for the Hearing for a more detailed account of the facts, the procedure, and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
11 It is not necessary to rule on the question whether or not the period laid down by the general provisions for giving effect to Article 11 ( 2 ) is to be regarded as being in the nature of a limitation period; it must be determined whether that time-limit may be applied to members of the temporary staff .
12 Both Article 11 ( 2 ) of Annex VIII to the Staff Regulations and the general provisions adopted for giving effect to it refer only to officials and contain no specific provisions relating to members of the temporary staff .
13 In accordance with Article 39 ( 2 ) of the Conditions of Employment of Other Servants of the European Communities ( hereinafter referred to as the "Conditions of Employment "), a member of the temporary staff is entitled to a retirement pension "as provided for in Title V, Chapter 3 of the Staff Regulations and Annex VIII to the Staff Regulations", and under Article 103 of the Conditions of Employment, "the general provisions for giving effect to the Staff Regulations, referred to in Article 110 of those regulations, shall apply to servants covered by these Conditions of Employment where by virtue of these Conditions of Employment the provisions of the said Regulation apply to those servants ."
14 Although by virtue of that general reference the provisions for giving effect to the Staff Regulations which govern the situation of officials are also applicable to members of the temporary staff, they can apply only if the situation under consideration is the same or at least comparable .
15 With regard more particularly to the question of the period within which requests for transfer must be made, Article 11 ( 2 ) of Annex VIII to the Staff Regulations and the general provisions adopted in order to give effect to that article fix that period, as a rule, by reference to the date of the official' s establishment, that is to say, as from the date on which he was definitively appointed to a permanent post in one of the Community institutions .
16 No such situation exists in the case of members of the temporary staff, who are employed only for a fixed period or, if they are employed for an indefinite period, may at any time have their contract of employment brought to an end .
17 To equate the commencement of the contract of employment of a member of the temporary staff with the establishment of an official would be to ignore the fundamental difference which exists between these two events and the legal consequences which they entail . A member of the temporary staff, who does not enjoy the guarantee of stability of employment inherent in the position of an official, governed as it is by the Staff Regulations, is not in a position to assess in the short term whether it is in his interests to request that his national rights be transferred to the Community pension scheme . Since he is exposed to the possibility that his employment with the Communities might cease, thus entailing a return to the national scheme, and does not know whether he will manage to obtain pension rights in the Community scheme, a member of the temporary staff, may hesitate to take a final decision, at least as long as he has not completed the period necessary under the Community scheme for acquiring pension rights . Such hesitation appears to be legitimate, even though Article 11 ( 1 ) of Annex VIII to the Staff Regulations enables him, should he return to the national scheme, to transfer to it the actuarial equivalent of his pension rights acquired under the Community scheme, since these successive transfers can be a source of uncertainty for the employee concerned .
18 Having regard to this basic difference between the situation of an official under the Staff Regulations and the system based on contract to which a member of the temporary staff is subject, it is not possible purely and simply to transpose the provisions governing the situation of the former to that of the latter without contravening the principle of legal certainty .
19 Consequently, the provisions laying down the period within which officials must submit requests for a transfer of pension rights may not be applied to members of the temporary staff in the absence of any specific provision dealing with their particular situation .
20 Nor, moreover, could a specific period be laid down for members of the temporary staff serving in Ispra by means of the notice dated 13 July 1978 from the head of personnel at the Joint Research Centre, informing officials and members of the temporary staff that they could obtain the transfer to the Community pension scheme of their national pension rights and fixing a six-month period for the submission of requests . Such an official has no autonomous rule-making power, since the Staff Regulations, like the Conditions of Employment, provide only for general implementing provisions to be adopted by the Institutions .
21 The Commission also argued that it is not possible to accept a request for transfer too long after the date on which the member of the temporary staff was employed without infringing the principle of equal treatment, since, in accordance with the method for calculating pension rights agreed with INPS, the rights of the beneficiary are determined at the date on which the transfer is carried out . The result would be that a person who made a late application would gain an advantage as regards his definitive pension rights under the Community scheme in relation to a person who made his request immediately after being employed . This objection cannot be upheld or lead to a different conclusion . It is for the Commission to adopt appropriate measures to ensure equal treatment in the implementation of the Staff Regulations and the Conditions of Employment .
22 It follows from the foregoing that the Commission' s decision contained in its memorandum of 20 May 1986 refusing the applicant' s request for a transfer of her pension rights on the ground that it was out of time must be annulled .

Costs
23 Under Article 69 ( 2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . Since the Commission has failed in its submissions it must be ordered to pay the costs .

On those grounds,
THE COURT ( First Chamber )
hereby :
( 1 ) Annuls the Commission' s decision contained in its memorandum of 20 May 1986 refusing the applicant' s request for the transfer to the Community pension scheme of the actuarial equivalent of her national pension rights;
( 2 ) Orders the Commission to pay the costs .