C-54/70
ECLI:EU:C:1971:36
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JUDGMENT OF THE COURT (SECOND CHAMBER) 1 APRIL 19711
Luigi Landra v Commission of the European Communities
Case 54/70
Summary
I. Officials — Pension scheme — Contributions to a scheme outside the Com munities — Automatic acquisition of Community pension rights — Impossibility (Staff Regulations of Officials of the EC, Article 83)
2. Officials —Pension scheme — Calculation of years of pensionable service — Period of service of the individual concerned on the auxiliary staff — Considera tion of such period — Impossibility (Staff Regulations of Officials of the EC, Annex VIII, Article 3)
1. Unless a clear exception is laid down be interpreted as meaning that an contributions to a scheme outside the official may claim that in calculating Communities cannot automatically the years of pensionable service ac give rise to the acquisition of Com quired for the purposes of his retire munity pension rights. ment pension the institution shall take into account his period of service as 2. Article 3 (c) of Annex VIII to the a member of the auxiliary staff of Staff Regulations of Officials must not the Communities.
In Case 54/70
LUIGI LANDRA, an official of the Commission of the European Communities, residing at 25 boulevard Prince-Henri, Luxembourg, represented by Robert Krieps, Advocate of the Luxembourg Bar, assisted by Jean Bour, Advocate of the same Bar, with an address for service in Luxembourg at the office of the said Advocates, 5 rue C.-M.-Spoo,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boule vard Royal,
defendant,
1 — Language of the Case : French.
JUDGMENT OF 1. 4. 1971 — CASE 54/70
Application for the annulment of the implied decision of the defendant refusing to take account of the applicant's period of service on the auxiliary staff in calculating his years of pensionable service for the purposes of his retirement pension;
THE COURT (Second Chamber)
composed of: A. Trabucchi, President of Chamber, P. Pescatore and H. Kutscher (Rapporteur), Judges,
Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure entire period of service on the auxiliary staff would be taken into account in 1. The facts and procedure may be calculating the years of pensionable ser summarized as follows: vice which he has acquired or will On 4 October 1965 the applicant was acquire for the purposes of his retire engaged by the High Authority of the ment pension. In a letter dated 2 April ECSC as a member of the auxiliary staff. 1970 the defendant informed him that He continued in this capacity until 30 the provision applicable in this instance September 1968. In accordance with was not Article 3 but Article 11 (2) of Article 70 of the Conditions of Employ Annex VIII to the Staff Regulations. ment of Other Servants of the Com The applicant was therefore asked to munities (hereinafter referred to as the indicate whether his request was to be Conditions of Employment) he was regarded as based on the said Article affiliated during this period to the Caisse 11. On 30 April 1970 the applicant de pension des employés privés (Pension submitted a request under Article 90 of fund for employees in the private the Staff Regulations of Officials for sector), a Luxembourg organization. the provisions of the abovementioned Since 1 October 1968 he has been in Article 3 to be applied in his favour. the service of the Commission as an This request was received by the com official. petent branch of the Commission on 5 In a letter dated 18 December 1969 the May 1970, but as no reply was made applicant requested the Assistant thereto, the applicant lodged the present Director-General for Personnel and application on 28 August 1970. Administration to confirm that in pur 2. Upon hearing the report of the suance of Article 3 (c) of Annex VIII Judge-Rapporteur and the opinion of the to the Staff Regulations of Officials, his Advocate-General the Court (Second
LANDRA v COMMISSION
Chamber) decided to open the oral (a) The refusal to apply in his favour procedure without holding any pre Article 3 (c) of Annex VIII to the Staff liminary enquiry. Regulations is contrary to the wording The parties presented oral argument at of that provision. This provision in fact the hearing on 4 February 1971. requires the consideration of 'periods of The Advocate-General delivered his service in any other capacity in accord opinion at the hearing on 4 March 1971. ance with the Conditions of Employ ment . . . , provided that the servant concerned has paid his share of the II — Conclusions of the par
ties pension contribution in respect of such periods of service'. The 'capacities' re ferred to by those Conditions of Em The applicant claims that the Court should: ployment are those of temporary staff, auxiliary staff, local staff and special ad — rule that Article 3(c) of Annex VIII visers. The abovementioned provision to the Staff Regulations applies to therefore applies to each of these cate the applicant's periods of service on gories of staff, in view of the fact that the auxiliary staff of the Commun the phrase 'the pension contribution in
ities; respect of such periods of service' — accordingly, vary the Commission's covers all the contributions imposed on implied decision of rejection which these categories by the Conditions of followed the representations through Employment in question. official channels received on 5 May (b) The defendant's attitude is also con 1970; trary to the spirit of the Staff Regula — rule that Article 11 (2) of Annex VIII tions which provide in Article 48 of to the Staff Regulations is inapplic Annex VIII that: If an official so re
able; — rule that the Commission of the quests, his pension rights shall, not withstanding any provisions to the con European Communities shall bear the costs of the action. trary in the Staff Regulations, be com puted from the date on which he entered The defendant contends that the Court the service of an institution of one of should: the three European Communities in any — dismiss the application in its entirety capacity whatever'. as unfounded; In order to reach a proper understand — order the applicant to pay the costs. ing of the scope of this provision it has to be remembered that under the scheme III — Submissions and argu established in the ECSC Staff Regula ments of the parties tions of 1956 the auxiliary staff—for whom no provision was made by the The submissions and arguments of the Staff Regulations but who were never parties may be summarized as follows: theless recruited in large numbers by The sole issue in this case is whether, the institutions—alone had not been in calculating the years of pensionable affiliated to the Community provident service acquired by the applicant for scheme. On the other hand, according to
the purposes of his retirement pension, the first paragraph of Article 48 of the defendant is entitled or is even Annex VIII to the Staff Regulations of obliged to take account of his period of 1962, officials to whom this scheme had service on the auxiliary staff of the applied were automatically affiliated to ECSC. the new Communities pension scheme. In this connexion the applicant puts As regards the auxiliary staff who be forward the following principal consider came officials by virtue of the transi ations: tional provisions of these Staff Regula-
JUDGMENT OF 1. 4. 1971 — CASE 54/70
tions, the second paragraph of the same Regulations obliges the defendant to article entitles them, 'by payment in in take automatically into consideration the stalments, to buy in the pension rights periods in dispute, the applicant de for which [they] had been unable to clares that he is prepared to pay into contribute', that is, to affiliate themselves the Community pension fund the sum ex tunc to the Community pension which he obtains from the Luxembourg scheme. If there is to be no discrimina fund, as increased by the difference be tion between, first, those members of tween the sum which he would have the auxiliary staff who were established paid had he been affiliated to the Com before or at the time of the entry into munity scheme from the beginning and force of the Staff Regulations of 1962 that which he has in fact paid into that and, secondly, those who were estab
fund. Such a method corresponds to the lished subsequently, the latter must be procedure suggested by Articles 11 and acknowledged to have a similar right. 48 of the said Annex VIII. (c) To take into account the earlier The defendant puts forward the follow affiliation to another pension fund cor ing main considerations: responds to the demands of fairness and (a) By the phrase 'pension contribution social justice. Far from sanctioning an in respect of such periods of service' exceptional solution, it represents a con Article 3 of Annex VIII to the Staff cept which is becoming the rule in Com Regulations refers solely to the contri munity and international law.
In sup butions paid to the pension scheme of port of this statement the applicant re the Communities, as laid down by fers to: Article 83 of the Staff Regulations in — Articles 117 and 118 of the EEC relation to officials, and by Articles 39 Treaty; and 41 of the Conditions of Employ — the bilateral agreements in social ment in relation to temporary servants. security matters concluded between Under the system established in the the Member States as well as the Staff Regulations, far from constituting Community regulations adopted on a gratuitous benefit, the acquisition of this subject; a retirement pension is linked to the payment of the contributions provided — Regulation No 5/63/Euratom and for in the pension scheme of the Com No 100/63/EEC of 10 July 1963
munities. Contributions paid into funds which was adopted pursuant to outside the Communities cannot there Article 83(3) of the Staff Regulations fore automatically give rise to rights to of Officials by the Councils of the a Community pension. In this connex EEC and the ECSC, as well as by ion the defendant refers to: the former Committee of Presidents of — Article 83 of the Staff Regulations; the ECSC (OJ No 130 of 24.8.1963, — Articles 36, 38 and 49 of Annex p. 2301).
VIII to the Staff Regulations; (d) Article 11(2) of Annex VIII to the — Articles 39 to 41 of the Conditions Staff Regulations does not apply to the of Employment; applicant, because: — Article 112 of the 'General Rules of — this provision requires the individual the Community' and Article 3 of concerned to have entered the ser Annex II to the Provisional Staff vice of the Communities as an official; Regulations, both of which applied — it assumes that the pension rights to the servants of the ECSC before previously acquired were so acquired the entry into force of the Staff in government administrations or or Regulations of 1956. ganizations outside the Communities.
Only to the extent to which the pro (e) Should the Court not accept that visions of the Staff Regulations provide Article 3 of Annex VIII to the Staff specially for the repayment into the
LANDRA v COMMISSION
Community pension scheme of contri the service of one of the Commun butions paid earlier into a national pen ities', appearing in this provision, sion scheme can officials acquire rights may not be interpreted as referring under the Community scheme corres solely to those individuals who be ponding to the amounts for which they came officials at the beginning of had not made any direct contributions. their career in the Communities. It The Conditions of Employment contain simply refers to the consequences of no provision regarding the auxiliary an individual's becoming an official. staff similar to Article 40 whereby any — The argument based on the fact that periods of service on the temporary the rights referred to by the appli staff are to be taken into account for cant have been acquired in the ser the purpose of calculating pension rights vice of the Communities is also irrele when a temporary servant is recruited vant. The important factor is that, as an official. in accordance with the Community (b) The applicant fails to appreciate the provisions (Article 70 of the Con scope and aim of Article 48 of Annex ditions of Employment), the appli VIII to the Staff Regulations. cant has been affiliated to a national This provision only applies to officials pension fund. Furthermore, it is diffi to whom the Staff Regulations apply as cult to refuse to apply Article 11 a result of the transitional provisions, to an official who has previously had as is shown by the phrase 'notwith certain links with the Communities standing any provisions to the con when it is applied to officials who trary in the Staff Regulations', which are recruited directly from outside. is synonymous with 'as an exception to (e) The applicant's offer to pay into the all the rules contained in the Staff Community pension fund the amounts Regulations'.
As the exception thus con to which he has referred is based on a firms the rule, Article 48 is calculated mistaken interpretation of the Article 3 to refute the applicant's argument. in dispute. Neither this article nor any The 'auxiliaries' on whom the ECSC other provision in the Staff Regulations had to rely before the entry into force provides for a method of funding such of the Staff Regulations of 1962—and as that considered by the applicant. Al who should not be confused with the though certain provisions (Articles 4, auxiliaries referred to by the Conditions 48 and 49 of Annex VIII to the Staff of Employment—did not form part of Regulations and the fourth paragraph of the staff governed by the Staff Regula Article 40 of the Conditions of Em tions of 1956, with the result that the ployment) enable certain payments to transitional provisions of the Staff Regu be made a posteriori, after which Article lations of 1962 (cf. Article 93 thereof) 3 of Annex VIII applies, they only con did not provide for their establishment. cern transitional or exceptional situ As a result, Article 48 does not con
ations. Moreover, the aim of such pay cern them. ments is precisely to ensure either that (c) It is unnecessary to check whether all the contributions provided for in the the applicant's description of the pro pension scheme of the Communities are visions of the Treaty and the systems of paid for or that a sum corresponding social security is correct. It is sufficient to these contributions is transferred to to note that the scheme advocated by this scheme. the applicant is not that provided for The applicant's proposal disregards in the Staff Regulations. Articles 11 and 48 of Annex VIII to (d) The applicant is perfectly entitled the Staff Regulations.
Article 48 is not to request the application of Article 11 applicable to him (see above, under (b)). (2) of Annex VIII: Article 11 applies to cases in which the — The phrase An official who enters pension rights are not determined by
JUDGMENT OF 1. 4. 1971 — CASE 54/70
applying Article 3 of that Annex, but to the individual concerned from the by the conversion of the actuarial pension fund of another organization, equivalent or of the fixed sum repaid that is, by a different method.
Grounds of judgment
1 The application seeks the annulment of the implied decision of the Com mission rejecting the applicant's request for his period of service on the auxiliary staff of the Communities to be taken into account in calculating the years of pensionable service which he has acquired for the purposes of his retirement pension.
2 The applicant considers that he is entitled to have the above period taken into account under Article 3 (c) of Annex VIII to the Staff Regulations of Officials.
3 Under Article 2 of the Annex: Ά retirement pension shall be payable on the basis of the total number of years of pensionable service acquired by the official'.
4 Under Article 3 of the same Annex: 'For the purpose of calculating years of pensionable service within the meaning of Article 2, the following shall be taken into account: (a) ... (b) ... (c) ... periods of service in any other capacity in accordance with the Conditions of Employment of Other Servants of the Communities'—hereinafter referred to as the 'Conditions of Employ ment' 'provided that the servant concerned has paid his share of the pension contribution in respect of such periods of service'.
5 The applicant maintains that the phrase 'pension contribution in respect of such period of service' includes contributions paid by the auxiliary staff of the Communities to non-Community social security schemes; such contribu tions are in fact 'provided for' by Article 70 of the Conditions of Employ ment.
6 Notwithstanding the wording of Article 3 (c) this interpretation does not withstand a systematic examination of the provisions concerning the pension scheme for Community servants.
7 The reason for this is that, by providing that 'Benefits paid under this pension scheme shall be charged to the budget of the Communities' and that 'Officials shall contribute one third of the cost of financing this pension scheme', Article 83 of the Staff Regulations of Officials establishes a close correlation between the acquisition of the retirement pension and the financing, by the individual concerned, of the fund created for the purposes of paying such pension.
LANDRA v COMMISSION
8 Therefore, unless a clear exception is laid down, contributions to a scheme outside the Communities cannot automatically give rise to the acquisition of Community pension rights; moreover, the acquisition of such rights might be wholly superfluous since it would be in addition to the years of pensionable service which the individual concerned has already been able to acquire within the context of such scheme.
9 Considered in its context, Article 3 of Annex VIII to the Staff Regulations of Officials may not be understood to lay down such an exception. Para graph (a) of this provision refers to officials in active employment, on second ment or on leave for military service, as regards whom the respective Articles 83 (2), 38 (e) and the second paragraph of Article 42 of the Staff Regulations lay down that they only acquire Community pension rights if they pay into the pension fund of the Communities the corresponding contributions.
10 Similar considerations apply to Article 3 (b) relating to officials who have non-active status or who have been retired in the interests of the service, as Article 37 of Annex VIII to the Staff Regulations provides that such an official 'shall continue to pay the contribution' to the pension scheme '... up to a maximum of five years as provided in Article 3'.
11 As regards paragraph (c) of this article it must be remembered that the second paragraph of Article 40 and Article 41 of the Conditions of Employ ment provide respectively that 'Any period of service on the temporary staff of one of the three European Communities shall be taken into account for the purpose of calculating years of pensionable service as provided for in Annex VIII to the Staff Regulations' and that, as regards the funding of this scheme, 'Article 83 of the Staff Regulations shall apply by analogy'.
12 As the Conditions of Employment contain no identical or similar provisions for the auxiliary staff it must be concluded that they are not referred in Article 3 (c) of Annex VIII to the Staff Regulations.
13 The applicant states that, in the light of the second paragraph of Article 48 of Annex VIII in particular, this interpretation is contrary to the spirit of the Staff Regulations. This paragraph provides 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'.
14 However, Article 48 comes under the 'transitional provisions' of Annex VIII and, according to its first paragraph, only applies to an Official to whom the Staff Regulations are applied pursuant to the transitional provisions' of that
JUDGMENT OF 1. 4. 1971 — CASE 54/70
Annex, that is, it refers to a situation which is quite different from that of servants who, like the applicant, have been engaged as auxiliaries under the Staff Regulations of 1962.
15 Moreover, the second paragraph of the same Article shows that, to the extent to which the official referred to therein has not contributed under the prev ious Community provident scheme, his earlier periods of service can only be taken into account provided that 'by payment in instalments, he is able to buy in the pension rights for which he had been unable to contribute', with the result that Article 48 confirms the principle of the close correlation between the contributions made and the years of pensionable service acquired.
16 In support of his argument the applicant again maintains that, contrary to the view held by the defendant, he cannot benefit from the provisions of Article 11 (2) of Annex VIII which enable certain officials to acquire additional years of pensionable service by paying certain sums to the Communities corres ponding to the rights which they have acquired in relation to non-Com munity pension funds.
17 According to the applicant, these provisions require the individual concerned first to have been an official since he entered the service of the Communities and, secondly, to have been in the service of a government administration or organization outside the Communities before being appointed an official therein.
18 Although the wording of Article 11 (2) of Annex VIII to the Staff Regula tions appears to confirm these arguments, the defendant has, however, rightly maintained that there is no justification for refusing to grant this facility to officials who, from before their appointment, have had certain links with the Communities, when they are applied to officials who are recruited directly from outside and who are clearly referred to by the provision in question.
19 Finally, in the course of the proceedings the applicant declared that should the Court not accept that Article 3 of Annex VIII is automatically applicable to him he was prepared to pay into the Community pension fund the sum which he would obtain from the Luxembourg fund to which he had been affiliated as a member of the auxiliary staff of the Communities, 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 this fund.
20 He maintains that this offer 'is only based upon a procedure suggested by Articles 11 and 48 of the same Annex VIII to the Staff Regulations'.
LANDRA v COMMISSION
21 However, no provision of the Staff Regulations provides for such a method of funding as that suggested by the applicant in order for the periods of service for which he has not contributed to the Community pension scheme to be taken into account.
22 In these circumstances, the present application must be dismissed as unfounded.
Costs
23 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
24 The applicant has failed in his submissions.
25 However, under the terms of Article 70 of the Rules of Procedure in pro ceedings by servants of the Communities institutions shall bear their own costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials, especially Articles 38, 42 and 83, and Articles 2, 3, 11, 37 and 48 of Annex VIII; Having regard to the Conditions of Employment of Other Servants of the Communities, especially Articles 40, 41 and 70; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;
THE COURT (Second Chamber)
hereby:
1. Dismisses the application as unfounded;
2. Orders the parties to bear their own costs.
Trabucchi Pescatore Kutscher
Delivered in open court in Luxembourg on 1 April 1971.
A. Van Houtte A. Trabucchi
Registrar President of the Second Chamber