Eva Fingruth v Caisse de pension des employés privés (129/87)

Contents

Judgment of the Court (Sixth Chamber)5 October 1988^noteIn Case 129/87REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour de cassation of the Grand-Duchy of Luxembourg for a preliminary ruling in the action pending before that court betweenEva Decker, née Fingruth, an official of the European Parliament, residing in ArlonandCaisse de pension des employés privés (Pension fund for private employees), LuxembourgTHE COURT (Sixth Chamber)composed of: O. Due, President of Chamber, T. Koopmans, K. Bahlmann, C. N. Kakouris and T. F. O'Higgins, Judges,Avocate General: M. DarmonRegistrar: D. Louterman, Administratorafter considering the observations submitted on behalf ofE. Decker, by A. Bonn, avocat,the Caisse des employés privés, by F. Entringer, avocat,the Luxembourg Government, by G. Schroeder and E. Ewen, Agents,the United Kingdom, by S. J. Hay, of the Treasury Solicitor's Department,the Commission of the European Communities by H. Etienne, Agent,having regard to the Report for the Hearing and further to the hearing on 3 Mayafte r hea ri ng the Opinion of the Advocate General delivered at the sitting on 5 July 1988,gives the following

Judgment

1By order of 9 April 1987, which was received at the Court on 21 April 1987 the Cour de cassation of the Grand Duchy of Luxembourg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 11 (2) of Annex VIII of Regulation No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (Official Journal, English Special Edition 1968 (I), p. 30, hereinafter referred to as ‘the Staff Regulations’).

2The question was raised in proceedings between Mrs Eva Decker, née Fingruth, an official of the European Parliament, the plaintiff in the main proceedings, and the Caisse de pension des employés privés (Pension fund for private employees), Luxembourg, (hereinafter referred to as ‘the Fund’), the defendant in those proceedings.

3Prior to her establishment as an official of the European Parliament on 1 April 1981 Mrs Decker had been employed in the private sector in Luxembourg and had thereby acquired pension rights with the Fund.

4Mrs Decker made known her wish to have her pension rights transferred from the Luxembourg scheme to the Community scheme and the administration of the European Parliament requested the Fund to inform it of the exact sum of the contributions to be transferred. On 24 November 1981 the Parliament administration passed on to Mrs Decker the statement concerned and on the same day she sent a formal application to the administration of the Parliament for the transfer to the Community pension scheme of all of the contributions, which amounted to BFR 618192. The Parliament's administration did not pass on this request to the Fund until 17 May 1982, that is to say more than one year after Mrs Decker's establishment.

5On 2 June 1982 the Fund refused the transfer request on the ground that it had been made after the expiry of the period prescribed by national legislation. Article 18 of the Luxembourg Law of 16 December 1963 on the coordination of pension schemes, as amended by the Law of 14 March 1979, provides that the transfer request must be made within one year from the official's establishment, tailing which it will not be admitted.

6The case was brought before all the courts having jurisdiction in the matter and the Cour de cassation finally decided to stay the proceedings pending a ruling by the Court of Justice on the following question:‘Does Article 11 (2) of Annex VIII to the Staff Regulations of Officials and Other Servants of the European Communities, as laid down by Regulation No 259/68 of the Council of 29 February 1968, which provides no time-limit for the lodging of a request for the transfer of pension rights by an official entering the service of the Communities, restrain a Member State, when enacting implementing measures in domestic law to give effect to that Community provision, from restricting the exercise by the official of his rights by imposing a time-limit on the lodging of the request for the transfer and by penalizing noncompliance with that time-limit by forfeiture of his rights?’

7Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the provisions of national and Community law in question, the course of the procedure and the observations submitted to the Court winch are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8The plaintiff in the main proceedings argues that Article 11 (2) of Annex VIII to the Staff Regulations does not allow a national legislature to set a time-limit for the submission of requests to transfer pension rights. Such a time-limit is prejudicial to an individual right conferred on officials by a provision of Community law.

9On the other hand the defendant in the main proceedings considers that Article 11 (2) of Annex VIII to the Staff Regulations does not preclude the setting of such a time-limit which is justified by administrative necessity. That point of view is shared by the Luxembourg Government and the United Kingdom. Although it acknowledges that Member States are entitled to set a time-limit, the Commission submits that the expiry of the time-limit may not be relied on as a bar to the claim or an official whose choice has been expressed to his institution within the period but has not been passed on in good time to the national authorities by that institution because of administrative delays.

10It should be noted at the outset that, as the Court held in its judgment of 20 October 1981 in Case 137/80 (Commission v Belgium [1981] ECR 2393), Article 11 (2) of Annex VIII to the Staff Regulations is mandatory and directly applicable in all the Member States, which are therefore required to adopt all appropriate measures to implement that provision, whether they be general or particular.

11It follows from this distribution of responsibilities that Member States must be recognized as having the right to prescribe a certain period within which Community officials who wish to transfer their pension rights to the Community scheme must submit their requests, in order to avoid uncertainties regarding their affiliation in the matter of insurance, as the abovementioned governments and the Commission have rightly pointed out.

12As regards the length of such a period, one year from the date of the official's establishment, as laid down by the Luxembourg legislation, must be held to be consistent with the purpose of Article 11 (2) of Annex VIII to the Staff Regulations since that period offers the official a sufficiently long time for reflection to enable him properly to make his decision.

13In order to give a helpful reply to the national court in the specific context of the main proceedings it is, however, necessary to consider whether the expiry of the period in question may be relied on as against an official who has submitted his transfer request to his Community institution within the period prescribed by national legislation, in conformity with an administrative practice which had been established between that institution and the competent national authority, when the request was not passed on by the responsible department of the Community institution until after the expiry of that period.

14It is apparent from the documents before the Court that the competent Luxembourg authority had acknowledged that the transfer request was to be passed on to it via the relevant department of the institution. The Parliament had initially contacted the Fund to ascertain the sum of Mrs Decker's pension rights with a view to having those rights transferred to the Community scheme and the Fund had subsequently sent to the Parliament a statement of Mrs Decker's transferable contributions.

15In such circumstances, and notwithstanding the existence of a time-limit for the exercise of the entitlement to transfer the pension rights, the competent national authority is, by reason of the legitimate expectation on the part of the Community official which has thus been created, obliged to guarantee that the transfer entitlement can be effectively exercised if the official concerned takes the necessary initiative within the time-limit. It follows that the expiry of such a time-limit may not be relied on as against a Community official whose transfer request was submitted within the period prescribed by national legislation to his Community institution, in conformity with the abovementioned administrative practice, where the fact that that period expired was beyond his control.

16Consequently the answer given to the question referred by the national court must be that Article 11 (2) of Annex VIII to the Staff Regulations must be interpreted as not precluding a Member State from providing that request to transfer pension rights are to be submitted within one year, failing which they will not be admitted. However, the national authorities may not rely on the expiry of such a period as against a Community official who has submitted his transfer request to his Community institution within the period prescribed by national legislation when the submission of the transfer request through that Community institution was in conformity with an administrative practice which had been established in regard to this matter between the Community institution and the competent national authority.

Costs

17The costs incurred by the Government of the Grand Duchy of Luxembourg, by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

Operative part

On those grounds,THE COURT (Sixth Chamber),in answer to the question referred to it by the Cour de cassation of the Grand Duchy of Luxembourg by order of 9 April 1987, hereby rules: Article 11 (2) of Annex VIII to the Staff Regulations must be interpreted as not precluding a Member State from providing that requests to transfer pension rights are to be submitted within one year, failing which they will not be admitted. However, the national authorities may not rely on the expiry of such a period as against a Community official who has submitted his transfer request to his Community institution within the period prescribed by national legislation when the submission of the transfer request through that Community institution was in conformity with an administrative practice which had been established with regard to this matter between the Community institution and the competent national authority.

Delivered in open court in Luxembourg on 5 October 1988.