Maria Celant and Others v European Commission (118/82, 119/82, 120/82, 121/82, 122/82, 123/82)

B —Substance

The applicants base their applications on alleged infringement of the Treaty and of the rules of law relating to its implementation inasmuch as the application by analogy of Article 11 (2) of Annex VIII to the Staff Regulations is inappropriate in their case, infringement of the principle of non-discrimination and misuse of powers; in their reply they put forward “additional considerations” based on the Commission's application of a weighting factor.The Commission considers all the submissions to be unfounded.Application by analogy of Article 11 (2) of Annex VIII to the Staff RegulationsThe applicants maintain that the application to their case by analogy of Article 11 (2) of Annex VIII to the Staff Regulations is unlawful.(a) That provision governs a situation which is different from theirs in substance. Its wording and spirit show that it was obviously intended to take into account as far as possible periods of work completed otherwise than in the service of the Communities. The applicants, on the other hand, were employed by the Communities themselves.The application of Article 11 (2) is without justification either in law or, in a wider sense, in equity.(b) If the Commission found that there was a lacuna and felt the need to have recourse to analogy the latter should have been drawn not with previous employment outside the Community, in which the Commission has no responsibility, but with employment as an official in the Community. The position of former local and establishment staff is almost identical to that of auxiliary staff since in both cases the employment is with the Commission; the principles expounded by the Court in its judgment of 1 February 1979 in Case 17/78 (Deshormes v Commission [1979] ECR 189) are thus applicable. Moreover, the Commission takes into account for the purposes of the pension the whole period spent as an auxiliary in all cases where the official has performed during the period for which he was an auxiliary the same duties as those entrusted to him in the department in which he has subsequently been established. As regards former local and establishment staff there is no doubt that they continue to perform in their new capacity the same duties as they carried out in the past.(c) Objections concerning the financing of the providence scheme in relation to previous employment cannot be accepted.The Commission is responsible for the share of the financing for which the employer is liable. It is, moreover, required to take part in financing the pension schemes for its own officials; finally contributions charged on the salary of former local and establishment staff appear to be in no way less — quite the contrary — than the portion of the salary of established offficials paid into the Community pension scheme.Neither the relative shares nor the amount of the contributions can therefore justify the measures adopted by the Commission.It is also necessary to emphasize that recognition of all the previous years of pensionable service of the applicants would in no way have conferrred on them an unfair financial advantage over those who had been affiliated to the Community pension scheme from the beginning. The contributions paid by the applicants to the Istituto Nazionale were higher than those paid under the Community scheme, the proportion paid by the institution to the Istitutio Nazionale was not less than that paid for its own established officials, and transfer of the actuarial equivalent to the Commission would put it in the same position as it would have been if it had assumed responsibility for local and establishment staff as regards social security from the beginning.The reciprocity between the respective obligations and rights of the parties is practically the same as in the relationship between the Commission and established officials.(d) In their reply the applicants claim that Regulation No 2615/76 is unlawful in so far as the contested measures were adopted in implementation of it and in so far as it provides that service completed as establishment or local staff is recognized only for the purpose of accumulating sufficient years of pensionable service to entitle the employee to a pension.(e) The judgment of the Court of 1 April 1971 in Case 54/70 (Landra v Com mission [1971] ECR 311), cited by the Commission, is irrelevant to the present case: at issue here is not the overlapping of two pension schemes, but an option for a single Community insurance scheme. Moreover, the applicants' affiliation to an insurance scheme other than the Community scheme is attributable to the institutions alone and the Commission cannot hold against the applicants a situation which it has itself created.The Commission is of the opinion that in the present case it has merely applied the law and followed the case-law of the Court.(a) The provision in Regulation No 2615/76 to the effect that only the years of service completed by staff as temporary staff are to be taken into account for the purpose of calculating the years of pensionable service to be counted in computing the Community pension applies the basic principle governing the whole Community social security scheme defined in Article 83 of the Staff Regulations. The latter establishes a close correlation between the acquisition of the retirement pension and the financing by the person concerned of the fund created for the purpose of paying the pension.(b) According to the judgment in the Landra case contributions to a scheme outside the Communities cannot automatically give rise to the acquisition of Community pension rights and pension rights acquired in the case of staff subject to the Conditions of Employment of Other Servants before their establishment can be recognized only in respect of temporary staff, who unlike other staff have been affiliated to the Community social security scheme and have contributed to the Community pension fund since their engagement.The judgment in the Deshormes case was given in a context completely different from that of the present case.(c) The application in the present case of Article 11 (2) of Annex VIII to the Staff Regulations is consistent with the decision in the Landra case. The result of that application must be that the amount transferred is credited to the employee in years of pensionable service calculated according to the rules and subject to the restrictions normally applied by the Communities. Any additional charge on the Community budget in order to allow complete assimilation of the previous period of service if the actuarial equivalent proved inadequate would have no legal justification, would constitute a breach of the principle of mutuality on which the whole Community social security scheme is based and, in the final analysis, would give those concerned an unfair financial advantage.If the social security schemes are to be properly managed, there must of necessity be a correlation between the' contributions paid and the pension payable. In that respect it must be emphasized that although the contributions paid to the pension fund of the Istituto Nazionale both by the Community institutions and by their staff exceeded for a short time those provided for by the Community social security scheme, they did so only when expressed as a percentage of the gross salary and not in absolute terms; the decisive factor in calculating the years of pensionable service to be taken into account for the purpose of the Community pension, however, is the total amount of the actuarial equivalent credited with the Istituto Nazionale and transferred to the pension fund of the EEC.Moreover, the mechanism for converting the actuarial equivalent of pension rights previously acquired into years of pensionable service to be taken into account for the purpose of the Community pension certainly does not always have disadvantageous results for those concerned; the result depends in each case on the weight attached to the value of the various factors involved in making the conversion (the amount transferred, age, grade on establishment, and so on).(d) The objection that Regulation No 2615/76 is unlawful is a new issue raised during the proceedings in breach of Articles 38 and 42 of the Rules of Procedure and is therefore inadmissible.In any event no legal argument has been adduced in support of the objection and the regulation in question merely implements the fundamental principle of the Community social security scheme as defined in Article 83 of the Staff Regulations.