Judgment_paragraph 2. · 35/81

2.In its defence, the Commission emphasizes that although in the notice concerning the applicant's taking up of his duties he is described as an official that in no way affects the essentially insecure nature of his engagement before the Staff Regulations entered into force. Far from being a formal clause, the reminder contained in the letter of 3 December 1958 on the right to terminate unilaterally contracts of employment for an indefinite period corresponds to the intention of the parties not to create as between themselves any definitive legal relationship before the institution of the Staff Regulations and the Conditions of Employment referred to in Article 212 of the Treaty (cf. judgments of 15 July 1960, Joined Cases 43, 45 and 48/59 Lachmüller [1960] ECR 463 and of 14 December 1961, Case 12/61 Gorter [1961] ECR 271). The Staff Regulations made no provision for the automatic reengagement by the institutions of members of staff recruited by them before the Staff Regulations entered into force. Moreover, that is immediately apparent from the wording of Article 102 of the Staff Regulations. The establishment to which this article relates is an expression of the transition from one legal situation to another. A servant previously recruited under a contractual relationship on a provisional basis, obtains as a result and at the time of his establishment, the benefit of the Staff Regulations and the resulting security of employment. To underline that transition and break with the past, Article 104 of the Staff Regulations, which has been repealed, laid down that in order for the Staff Regulations to be applied to him the person concerned had to waive the benefit of the terms of his contract; the waiver had to be signed by him on his becoming established, as was done by the applicant. As the Court observed in its judgment of 4 April 1973 in Case 31/72 Angelini [1973] ECR 410, such a waiver might properly relate to the rights arising under the earlier contract, including acquired rights, and is moreover entailed, except where there is a provision to the contrary, by the transition from a contractual relationship to one governed by the Staff Regulations. The previous contract is taken into account only in so far as this is expressly provided for by the Staff Regulations and to that extent alone. The applicant is therefore quite mistaken in maintaining that he enjoyed, without interruption, the status of a public official and consequently security of employment.The question whether the periods of service completed by established officials under Article 102 of the Staff Regulations should be taken into account for the purpose of calculating their years of pensionable service under the Community scheme is expressly regulated by a transitional provision, Article 48 of Annex VIII to the Staff Regulations. Thus the applicant must undoubtedly be credited with the period from 26 October 1958 to 31 December 1961 for the purpose of calculating his pension.Establishment as an official, which entails the application to him of the Staff Regulations, must not be confused with entry into the service of the Community. First, establishment always follows entry into the service, if only after completion of the probationary period (Article 34 (1) of the Staff Regulations) and, secondly, whilst establishment confers on the servant the status of an official appointed on a permanent basis, it is possible to enter the service of the Communities in different capacities, either on a contractual basis or as a probationary official. There is no reason to attribute to the terms “official” and “establishment”, as used in Article 11 (2) of Annex VIII to the Staff Regulations, any meaning other than that which they have everywhere else in the Staff Regulations.As regards the discrimination, which is alleged to result from the interpretation of Article 11 (2), between officials to whom the Staff Regulations are applied by virtue of Article 102 and other officials, the Commission recalls that the dispute does not concern the taking into account, for the purpose of calculating the applicant's Community pension, of the years of service completed with the Communities in the period preceding the entry into force of the Staff Regulations but only those years preceding his entry into service, in the form of a number of additional years of pensionable service corresponding to the amount transferred. The transfer of pension rights was provided for by the Staff Regulations and is thus a new benefit enjoyed by servants established pursuant to Article 102 only from the date on which the Staff Regulations entered into force. The Commission takes the view that their position is no different from that of officials in a comparable situation, but is in fact even more favourable than theirs. In the case of a member of the temporary staff recruited as a probationary official who subsequently becomes established, the number of additional years of pensionable service granted in respect of the period preceding his entry into the service of the Communities is calculated in exactly the same manner as it is for servants to whom Article 102 is applied. In both cases, the amount transferred is converted into a notional pension and then into years of pensionable service under the Staff Regulations on the basis of the annual basic salary corresponding to the grade on establishment. A member of the temporary staff cannot claim that that grade and salary are the same as they were on the date of his entry into service as a member of the temporary staff. In view of the obligation to complete a probationary period (from which servants brought in under the Staff Regulations have been exempted), he is even credited, all other things being equal, with slightly fewer years of pensionable service. The position of a member of the local staff or of the auxiliary staff who becomes a probationary official and subsequently an established official, is virtually indistinguishable. Although, in both cases, the number of years of pensionable service under the Staff Regulations is determined by reference to the annual basic salary corresponding to the grade on establishment, the reason for this is that it makes sense to transfer pension rights only from the time when, as a result of his establishment, the official obtains the security of employment which characterizes the system embodied in the Staff Regulations. To permit, in the case of servants established under Article 102, the number of years of pensionable service to be calculated on the basis of their annual basic salary on the date of their entry into service would be to discriminate in their favour.Alternatively, the defendant objects that the mention, on the form entitled “Application for the repayment of pension rights”, of 1 October 1958 as the date of the applicant's establishment may in no way be regarded as a decision of the appointing authority within the meaning of the last subparagraph of Article 90 (2) of the Staff Regulations. The reasons for this are three in number and are that the decision in question was not taken by the appointing authority, that is to say by the Commission, that it was not accompanied by a statement of the reasons on which it was based and that it was not notified to the applicant since the form was returned by the administration to the sender, the Luxembourg Fund. Furthermore, the purpose of that form was not to convey a Commission decision, but merely to obtain certain information to assist the Luxembourg Fund. The mention of the date 1 October 1958 on that form had no bearing on the decision concerning the transfer of pension rights or on the decision to grant the applicant rights under the Community pension scheme. To begin with, it did not lead to any adjustment of the amount transferred as compared to that specified in the statement of account of 26 March 1980 drawn up by the Luxembourg Fund and, secondly, the Commission has not taken any decision crediting the applicant with a greater number of years of pensionable service under the Staff Regulations by taking into account the date of 1 October 1958, since the proposal to grant him rights under the Community pension scheme, annexed to the Director of Personnel's note of 17 April 1980, was not withdrawn and replaced by another proposal.