Luigi Landra v European Commission (54/70)

I —Facts and procedure

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:— 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.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.(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.

Costs