C-131/80
ECLI:EU:C:1981:97
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JUDGMENT OF 7. 5. 1981 — CASE 131/80
calculate the pension rights which have by virtue of supplementary voluntary been acquired by an official in his insurance with the national insurance country of origin and which he has been institution, it must nevertheless exclude obliged to forfeit by reason of his voluntary contributions paid by the entering the service of one of the person concerned after the termination Communities, the pension rights retained of his national employment.
In Case 131/80,
GERHARD WILL, an engineer and an official of the Commission of the European Communities, resident in Luxembourg, with an address for service at the Chambers of his Counsel, Victor Biel of the Luxembourg Bar, 18A Rue des Glacis, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jörn Pipkorn, a member of its Legal Department, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for
(1) Annulment of the Commission decision of 11 December 1978 determining the number of years' pensionable service credited to the applicant pursuant to Article 102 of the Staff Regulations of the ECSC:
(2) A declaration that the Commission is obliged to credit the applicant with several years' pensionable service not taken into consideration in the said decision,
T H E C O U R T (First Chamber)
composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,
Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
WILL v COMMISSION
JUDGMENT
Facts and issues
The facts of the case, the course of The Staff Regulations of Officials of the the procedure and the conclusions, European Communities (hereinafter submissions and arguments of the parties referred to as "the 1968 Staff Regu- may be summarized as follows : lations") laid down by Regulation (EEC, Euratom, EAEC) N o 259/68 of the Council of 29 February 1968 (Official I — Facts and written p r o c e d u r e Journal, English Special Edition 1968 (I) p. 30), reproduces the above-mentioned 1. The applicant, born on 8 December Article 107 with some drafting changes 1915, was appointed as a probationary (first paragraph of Article 2, No 17). It official by the High Authority of the retains however Article 102 (2) of the ECSC on 15 October 1956. H e has ECSC Staff Regulations for those continued to serve first with the High officials who, like the applicant, were Authority and thereafter with the recruited according to the provisions of Commission since that date without the 1956 ECSC Regulations (third interruption. paragraph of Article 2 of Regulation N o 259/68). In accordance with the transitional The relevant provisions of Article 102 (2) provisions of Title VIII of the Staff of the ECSC Staff Regulations are in the Regulations of Officials of the ECSC of following terms : 1 January 1962 (hereinafter referred to as "the ECSC Staff Regulations") and of "(a) An official to whom these Staff Article 48 of Annex VIII to those regu- Regulations have been applied in lations he was included in the accordance with these transitional Communities' pension scheme with effect provisions and who furnishes from 15 October 1956. evidence of having been obliged by reason of his entering the service of By decision of the appointing authority the Community to forfeit in whole of 11 December 1978 the provisions of or in part the pension rights which Article 107 of the Staff Regulations of have accrued to him in his country the European Communities and of of origin and of being unable to Article 102 (2) of the ECSC Staff Regu- obtain the actuarial equivalent of lations were applied to the applicant, such rights shall be credited, for the who was awarded by the same decision a purposes of his retirement pension credit of three years one month and in the Community and without fifteen days in addition to his payment of arrears of contributions, Community pension rights. with annual contributions corre- sponding to the number of years of pensionable service accrued in his 2. Article 102 (2) subparagraphs (a) country of origin. to (f) of the ECSC Regulations corresponded to Article 107 of the EEC (b) The number of years of pensionable and the EAEC Staff Regulations as set service thus credited shall be out in Regulation N o 31 (EEC), 11 determined by the appointing (EAEC) of 18 December 1961 (Official authority of the institution to which Journal, English Special Edition 1959- the official belongs after receiving 1962, p. 135). the opinion of the Staff Regulations
JUDGMENT OF 7. 5. 1981 — CASE 131/80
Committee provided for in Article (a) The applicant's last employer before 10. It shall not exceed: he entered the service of the High — The number of years of actual Authority was the Hütten- und service which it will be possible Walzwerks-Berufsgenossenschaft (mutu- for the official to complete up al insurance fund for workers in steel to the age of 65 years; foundries and rolling mills, hereinafter referred to as "the Berufsgenossen- — Half the number of years of schaft"), a body incorporated under service which upon his attaining public law with a pension scheme which the age of 65 years would be corresponds to the provisions of the required for him to complete 35 Federal Civil Service Law (Bundesbeam- years of pensionable service. tengesetz). (c) An official to whom the foregoing Initially from 1 March 1951 to 31 May provisions apply shall pay to the 1953, the applicant worked there as Community a portion of the sums a clerical employee within the mean- paid to him in settlement of his ing of the Clerical Staff Insurance pension rights in his country of Law (Angestellten-Versicherungsgesetz). origin which do not correspond to During that period the applicant was not the actuarial equivalent of those subject to the compulsory pension rights; that proportion should be insurance scheme because his annual equal to the ratio between the remuneration exceeded the ceiling for number of years' pensionable compulsory membership in force at the service with which he is credited by time. The Berufsgenossenschaft did not the Community and the number therefore have to pay a contribution for of years of pensionable service that period to the Federal Insurance forfeited by him in his country of Office for Clerical Staff (the Bundes- origin". versicherungsanstalt für Angestellte — hereinafter referred to as "the Clerical The Commission adopted on 2 July 1969 Insurance Office").
The applicant general implementing provisions for however himself paid 17 optional contri- Article 107 of the 1968 Staff Regulations butions to that office during that period. and Article 102 (2) of the ECSC Staff Regulations. They were published in the For a second period from 1 June 1953 to Courrier du Personnel [Staff Courier] 31 October 1956, the applicant was N o 77 of 29 June 1969, pp. 601 et seq. employed as technical supervisor under Following this publication the applicant conditions of the staff rules of the requested on 10 November 1969 Berufsgenossenschaft and under the rules compensation for the pension rights applicable to the civil service in which he had been obliged to forfeit by accordance with the provisions of the reason of his entering the service of the Federal Civil Service Law.
During that Community. period, the applicant was not subject to the compulsory pension insurance Investigations were then made both by scheme provided for in Article 11 (1) of the administration and by the applicant the Clerical Staff Insurance Law, because in order to calculate those pension rights he could expect to receive a civil which the applicant had lost and those servant's pension. However, since he which he had retained before entering ceased his activities with the Berufs- the service of the High Authority. genossenschaft on 31 October 1956 before the expiry of the qualifying period
3. At the end of its investigations the of ten years provided for by German civil Commission carried out the calculation service law, he could not be awarded any on the following basis. civil service pension. In these circum-
WILL v COMMISSION
stances the Berufsgenossenschaft was Finally a conversion coefficient was required by Article 9 of the Clerical Staff applied to this number of years to Insurance Law to insure the applicant convert it into the actuarial equivalent, retroactively for the period between 1 taking account of factors such as age, June 1953 and 31 October 1956. sex and so on. This operation gave the result of three years, one month and fifteen Over the same period the applicant days. himself made 29 voluntary contributions
to the Clerical Insurance Office. Since This was the number of years of his former employer had insured him pensionable service which the decision of retroactively for this period, these 11 December 1978 set as the credit to voluntary contributions correspond to which the applicant was entitled pursuant additional insurance contributions in to Article 102 of the ECSC Staff Regu- accordance with Article 2 (15) of the lations. Clerical Staff Pension Reform Law of 23 February 1957 (Angestelltenversi- 4.
This decision was communicated to cherungs-Neuregelungsgesetz, BGBl. I, the applicant by letter of 11 December p. 980). Of these 29 voluntary contri- 1978 requesting him to set any objections butions 13 were paid while the applicant out in writing within a period of three was employed by the Berufsgenossen- months. schaft and the others in December 1957. The applicant set out his views after two successive extensions of the time-limit in (b) On the basis of these factors the a note of 25 June 1979.
In particular he Commission took as accrued pension criticized the fact that "reckonable rights which the applicant had been periods prior to entry into service" obliged to forfeit the rights relating to ("nützliche Vordienstzeiten") had not his period of service with the been included in the lost years, H e also Berufsgenossenschaft from 1 March 1951 criticized the fact that the rights retained to 14 October 1956 namely five years with the Clerical Insurance Office on the seven months and thirteen days, in so far basis of voluntary insurance had been as such rights did not correspond to taken into consideration. rights in respect of the same period retained as against the Clerical Insurance By a letter dated 13 August 1979 the
Office. Head of the Individual Rights and Privileges Division of the Directorate This basis of assessment of five years General of Personnel and Administration seven months and fifteen days was of the Commission elucidated the calcu- multiplied by a coefficient of 0.8322 to lation without modifying it. On 6 take account of rights which the November 1979 the applicant made a applicant retained as against the Clerical complaint. After the expiry of the time Insurance Office as a result of the for a reply provided for in Article 90 (2) contributions paid to that institution as of the 1968 Staff Regulations, the non-compulsory insurance. The amount applicant made this application on 30 of the coefficient was based on a May 1980. fictitious calculation carried out by the Clerical Insurance Office and sent to the The Commission decided on 24 June Commission by letter of 28 August 1976. 1980 to refuse the complaint expressly. As a result of this coefficient the number The decision refusing it was of years of pensionable service which communicated by letter of 4 September could be credited was reduced to four 1980 and received by the applicant on years eight months and five days. 19 September.
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Upon hearing the report of the Judge- The defendant contends that the Court Rapporteur and the views of the should: Advocate General the Court (First Chamber) decided to open the oral 1. Dismiss the application as unfounded; procedure without any preparatory inquiry. 2. Order the applicant to pay the costs.
III — Submissions and argu- II — C o n c l u s i o n s of t h e p a r t i e s m e n t s of t h e p a r t i e s
The applicant claims that the Court (a) Credits for periods prior to entry into should: service
The applicant submits that under the 1. Declare the implied rejection of his provisions of Article 116 a of the Federal complaint of 6 November 1979 Civil Service Law of 14 July 1953 certain unlawful and annul it; periods prior to employment must be taken into consideration in order to 2. Rule that the defendant is bound to calculate the years of pensionable service credit the applicant with study periods to be credited. This relates in particular as a result of the retroactive effect to periods of study. The said provisions of the Bundesbeamtenrahmengesetz were inserted by the Federal Civil Service [Federal Civil Service Outline Law] of Outline Law of 1 July 1957 with 1 July 1957 which inserted Article retroactive effect to 1 September 1953. 116 a (in the Federal Civil Service Hence at the date of entry into force Law); of the new provision, the applicant was still in the service or the Berufsgenossenschaft. Because of the 3. Confirm that the Commission has no retroactivity of the new Law he was claim to payment of sums which have entitled to the benefits conferred by it so accrued to the plaintiff by way of that the corresponding periods must be voluntary insurance contributions; taken into account in order to calculate his lost pension rights. Finally, the 4. Alternatively, confirm that the applicant points out in his reply that he is implementing provisions adopted by requesting a credit of five years, five the Commission are incompatible with months and three days. This number Article 102 of the ECSC Staff Regu- corresponds to the maximum number of lations and therefore inapplicable; years to which he would be entitled accordingly, declare them unlawful in under Article 102 (2) (b) of the ECSC so far as they might confer on the Staff Regulations as applied by the administration a claim to sums Commission in the contested decision. accrued by virtue of voluntary insurance contributions; The defendant stresses that the pension rights which accrued to the applicant with his previous employer must be 5. Refer the matter back to the assessed in the light of the national Commission for a new calculation of measures in force when the applicant had the plaintiff's entitlement to be made; to forfeit them (Article 102 (2) (a) of the ECSC Staff Regulations; Article 7 (1) of 6. Order the defendant to pay the costs. the general implementing provisions).
WILL v COMMISSION
Since he had not completed the provisions of the 1968 Staff Regulations qualifying period of ten years' service in which deal only with pension rights. accordance with Article 106 of the Civil Service Law the applicant neither Even supposing that what was under acquired nor lost any right to receive a consideration was not an assignment but civil service pension when he entered the a factor of the calculation, it is service of the Community. H e had nevertheless the case that the amounts of simply had prospects of a pension or an voluntary contributions paid in order to expectancy which would only have be covered by a supplementary insurance crystallized into a substantive right if the scheme would involve a reduction in the applicant had remained in the service of number of years of pensionable service the Berufsgenossenschaft and if the risk credited to the applicant. had only occurred after the end of the qualifying period or for reasons of The defendant's proposition that not incapacity for work. only pension rights should be taken into account but also rights which the The period during which the applicant applicant may have acquired by way of was qualifying for a civil service pension voluntary contributions cannot be based covered solely the period during which on the wording of Article 102 of the he was actually in the service of the ECSC Staff Regulations or Article 107
Berufsgenossenschaft. Periods prior to of the 1968 Staff Regulations. Article 4 the entry into service were not taken into of the general implementing provisions consideration (Art. 116 (1) (3) of the has no effect on the interpretation of Civil Service Law), because those periods those provisions since it came into effect were not part of the qualifying period only in 1969; it cannot have any mentioned in the aforesaid Article 106. retroactive effect. The same applies to the study period within the meaning of Article 116 a of According to the applicant the scheme
the Law. Moreover the provisions of for crediting years of pensionable service Article 116 a were inserted into the Civil is quite distinct from payment by an Service Law with effect from 1 official of voluntary contributions since September 1953 only by the Civil Service schemes of non-compulsory insurance Outline Law of 1 July 1957. It applied cannot be assimilated to pension only to civil servants and those treated as schemes. such who were actually employed when it came into force; it did not therefore The defendant points out first that the affect the applicant, who ceased his decision of the appointing authority of employment with the Berufsgenossen- 11 December 1978 does not relate in any schaft from 31 October 1956 that is to way to an "assignment" of pension rights say before the coming into force of the in respect of the Clerical Insurance
said provisions. Office. For the defendant the question is (b) The inclusion in the calculation of whether it is entitled in applying Article voluntary contributions 102 (2) of the ECSC Staff Regulations and Article 107 of the 1968 Staff Regu- The applicant submits that the defendant lations to take into consideration, in is not entitled to an assignment of order to calculate the value of the lost benefits paid by the Clerical Insurance pension rights to be made good, pension Office in respect of voluntary contri- rights maintained after an official's entry
butions. Such an assignment could not into service with the Commission, even if apply to contributions which do not by such rights are in part based on their very nature fall under the voluntary contributions.
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The defendant's own view is that nothing more than make specific the account must be taken not only of rights legal consequences resulting from the actually accrued relating to a period of provisions of the Staff Regulations employment before entry into service themselves, in particular where they with the Communities, but also of those specify that for the calculation of lost which have not accrued to the official, pension rights to be made by the but which he may have obtained by Community pension scheme retained payment of voluntary contributions. This pension rights based on voluntary contri- conclusion follows first from the actual butions are to be taken into wording of Article 107 of the 1968 Staff consideration. Regulations and Article 102 (2) of the ECSC Staff Regulations. Secondly it Moreover the taking into consideration would not be in accordance with the of voluntary contributions does not cause purpose of the rules in question, which is the applicant any injury since the only to grant compensation for a deficit in right denied to him is that of being pension which cannot be covered in any compensated for a pension deficit which other way, to grant such benefits in cases does not exist. in which there is no such deficit (as is the case with the applicant) or where it is the official's own fault (as in the case where IV — Oral procedure an official does not take advantage of the possibility of paying voluntary contri- At the sitting on 5 February 1981 the butions). parties presented oral argument. For these reasons the implementing The Advocate General delivered his provisions, in particular at Article 4, do opinion at the sitting on 2 April 1981.
Decision
1 By application lodged at the Court Registry on 30 May 1980 Gerhard Will, an official of the Commission of the European Communities, brought an action for annulment of the decision of the Commission dated 11 December 1978 by which the provisions of Article 102 (2) of the Staff Regulations of Officials of the ECSC (hereinafter referred to as "the ECSC Staff Regu- lations") were applied to the applicant and the number of years' pensionable service to be credited to him under those provisions was determined.
2 The said Article 102 (2) of the ECSC Staff Regulations whose wording corresponds substantially to that of Article 107 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as "the Staff Regulations"), provides that an official who furnishes evidence of having been obliged by reason of his entering the service of the Community to forfeit in whole or in part the pension rights which have accrued to him in his country of origin and of being unable to obtain the actuarial equivalent of such rights shall be credited, for the purposes of his retirement pension in
WILL v COMMISSION
the Community with annual contributions corresponding to the number of years of pensionable service accrued in his country of origin. The same article provides that the number of years of pensionable service thus credited shall be determined by the appointing authority of the institution to which the official belongs after receiving the opinion of the Staff Regulations Committee and that it shall not exceed either the number of years of actual service which it will be possible for the official to complete up to the age of 65 years, or half the number of years of service which upon his attaining the age of 65 years would be required for him to complete 35 years of pensionable service.
3 The applicant entered the service of the High Authority of the ECSC on 15 October 1956. Before that date he was employed by the German Mutual Insurance Fund for workers in steel foundries and rolling-mills (Hütten- und Walzwerks-Berufsgenossenschaft hereinafter referred to as "the Berufs- genossenschaft"), a body incorporated under public law as defined by German legislation. From 1 June 1953 he had the status of an official; his remuneration was therefore subject to deduction of pension contributions pursuant to the German Civil Service Law. Previously from 1 March 1951 he had worked for the same body as a clerical employee within the meaning of the German Clerical Staff Law (Angestelltenversicherungsgesetz); since he was not subject to the compulsory pension insurance scheme set up by that Law because of the amount of his remuneration he paid voluntary contri- butions to the Federal Insurance Office for Clerical Staff (Bundesversiche- rungsanstalt für Angestellte, hereinafter referred to as "the Clerical Insurance Office").
4 When he entered the service of the Community, the applicant had not completed the qualifying period of 10 years' service provided for in the German Civil Service Law as a condition for the grant of a pension. In these circumstances, the Berufsgenossenschaft was required pursuant to the Clerical Staff Insurance Law to insure the applicant retroactively for the period during which he had been an official. It complied with this requirement by paying to the Clerical Insurance Office an amount calculated by reference to the pension for that period. The applicant for his part paid voluntary contributions to the said office during the same period and after his entry into the service of the Communities.
5 It appears from a letter of the Clerical Insurance Office to the Commission dated 26 August 1976 that it considers that the voluntary contributions paid by the applicant both during his employment with the Berufsgenossenschaft and after the termination of that employment are to be considered as insurance contributions supplementary to the retroactive insurance taken out by the Berufsgenossenschaft on the applicant's behalf.
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6 In the contested decision the Commission credited the applicant with years of pensionable service under Article 102 (2) of the ECSC Staff Regulations. The decision on the one hand determines the maximum of years of pensionable service to be credited under those provisions at 5 years, 5 months and 3 days, and on the other hand fixes the number of years of pensionable service actually credited at 3 years, 1 month and 15 days.
7 As to the amount of the maximum, the application refers to a period of 15 years and 18 days which ought to be taken into consideration but this allegation which is unsupported by any explanations was not pursued after the explanations which the Commission gave in this respect in its defence.
8 On the other hand the number of years of pensionable service credited is disputed by the applicant for two reasons. First the Commission took as the basis of its calculation the wrong number of years of service, failing to take account of the periods of study undertaken by the applicant before he entered the service of the Berufsgenossenschaft. Secondly, the Commission ought not to have taken into account his voluntary insurance contributions paid to the Clerical Insurance Office.
9 According to the schedule to the decision under review, it was based on the following calculation so as to arrive at the credit of 3 years, 1 month and 15 days;
(a) It took as a basis for the calculation the period during which the applicant was employed by the Berufsgenossenschaft, that is to say 5 years, 7 months and 13 days;
(b) A coefficient of 0.8332 was applied to this period so as to take account of the voluntary insurance which the applicant took out with the Clerical Insurance Office;
(c) A coefficient of conversion was then applied so as to give the actuarial equivalent of the period so obtained.
10 The applicant contests first the basis of calculation indicated at (a). He does not deny that he had actually completed the period to which the decision refers at the time at which he left his employment with the
WILL v COMMISSION
Berufsgenossenschaft in 1956. In his view however the period taken as a basis for calculation should have included not only the actual duration of employment but also the periods of study prior to the employment which according to the applicable German legislation are to be taken into consideration in order to calculate years of pensionable service.
n In support of this submission the applicant claims that a German Law of 1 July 1957 inserted in the Federal Civil Service Law a new Article 116a according to which periods of study prior to employment are to be taken into consideration in order to calculate years of pensionable service. That Law of 1957 had retroactive effect to 1 September 1953 at which date the applicant was still in the employment of the Berufsgenossenschaft. Therefore the scheme provided for in the Law was made retroactively applicable to his situation; this scheme therefore caused pension rights to accrue to him which he was obliged to forfeit by reason of his entering the service of the Community.
12 The Commission rejects this argument. It submits that according to Article 102 (2) of the ECSC Staff Regulations, the crediting of years of pensionable service can apply only to years of service which have accrued to the official in his country of origin and that the wording must be interpreted to mean that the "accrued" years of service must actually have accrued at the time when the official was obliged to forfeit his rights. This interpretation is supported by the general implementing provisions relating to Article 107 of the Staff Regulations and Article 102 (2) of the ECSC Staff Regulations, which were adopted by the Commission on 2 July 1969 and published in the Courrier du personnel [Staff Courier] of 29 July 1969 (No 77, p. 601). Article 7 of the general provisions expressly makes the credit depend on the national pension scheme as it applied to the official "at the moment when he was obliged to forfeit these rights".
1 3 The Commission's submission must be accepted. Credits for years of pensionable service provided for in Article 102 (2) of the ECSC Staff Regu- lations and in Article 107 of the Staff Regulations are intended to provide within the framework of the Community pension scheme some compensation for pension rights which the official had already acquired but which he was obliged to forfeit by reason of his appointment by one of the Communities. The rights which he is obliged to forfeit are those which he has acquired at the time of the termination of his previous duties; subsequent national
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legislation cannot have the effect of modifying for the purpose of determining such compensation the calculation of the rights which he had acquired at that time.
1 4 The same applies where national legislation which comes into effect after the termination of national employment has a retroactive effect to a date prior to that time. The official cannot be deemed to have forfeited pension rights by reason of his entering the service of one of the Communities when those rights have not accrued to him at the actual time at which he ceases to pursue his previous employment.
15 It follows that the first head of the applicant's claims is unfounded.
16 The applicant further disagrees with the application in the contested decision of a coefficient of 0.8332 to the number of years during which he was employed by the Berufsgenossenschaft, so as to take account of the voluntary insurance with the Clerical Insurance Office. In his view, to take into account voluntary contributions is equivalent to confiscating an official's savings and is in any case contrary to the wording and to the purpose of Article 102 (2) of the ECSC Staff Regulations.
17 The Commission submits that it is entitled to take pension rights which the official has retained after entry into service with the Commission into consideration in order to calculate the value of lost pension rights which are to be made good in accordance with the said provisions, even if those rights are based in part on voluntary contributions. The purpose of the rules applicable is to grant compensation for a deficit in pension which cannot be made good in any other way so that it is not appropriate to grant these benefits where there is no such deficit.
18 Moreover the Commission points out that Article 4 of the general implementing provisions mentioned above provides expressly that pension rights which the official has been obliged to forfeit are retirement pension rights under a "statutory or contractual" pension scheme.
WILL v COMMISSION
19 The applicant replies that the said Article 4 is based on an incorrect interpretation of Article 102 (2) of the ECSC Staff Regulations and Article 107 of the Staff Regulations; he therefore requests the Court to declare the said Article 4 null and void.
20 It appears from the file that the voluntary contributions paid by the applicant to the Clerical Insurance Office amounted to 46, of which 17 were paid during the period when the applicant worked as a clerical officer of the Berufsgenossenschaft (1951 to 1953), 13 during the period when he had the status of an official with that institution (1953 to 1956), and 16 after the termination of his employment in December 1957. A comparison of the applicable German legislation with the information in the file shows that these 16 voluntary contributions, whilst paid after the termination of employment, were intended to cover insurance periods between 1 January 1955 and the termination of employment as supplementary contributions within the meaning of the Clerical Staff Pension Reform Law of 23 October 1957 (Angestelltenversicherungs-Neuregelungsgesetz).
21 It should be recalled moreover that the Berufsgenossenschaft took out insurance retroactively for the applicant for the period during which he had the status of a German civil servant (1953 to 1956) by paying an amount representing the pension calculation for that period to the Clerical Insurance Office, which considers that the voluntary contributions made by the applicant must be treated in the same way as supplementary insurance contri- butions within the meaning of German Law.
22 In these circumstances the Commission was entitled to take into account, in order to calculate the pension rights which the applicant was obliged to forfeit within the meaning of Article 102 (2) of the ECSC Staff Regulations by reason of his entering the service of the Community, the pension rights retained by virtue of voluntary insurance with the Clerical Insurance Office. In this respect the Commission has therefore correctly interpreted the said Article 102 (2); consequently Article 4 of the general implementing provisions is not incompatible with the provisions of the ECSC Staff Regu- lations.
23 The Court however considers that the 16 voluntary contributions which the applicant paid after the termination of his employment with the Berufsgenossenschaft should be treated differently. It appears from the considerations set out that the date to be taken into account for the purpose of calculating lost and retained pension rights so as to make such rights good within the framework of the Community pension scheme is the date at which
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the official terminates his previous employment in order to enter the service of one of the Communities.
24 The Commission was not therefore entitled to take into account the voluntary contributions which the applicant paid after his entry into the service of the Community pursuant to national legislation which came into effect after that date.
25 It follows from the foregoing that the contested decision must be annulled to the extent to which the application of the coefficient of 0.8332 to the period of 5 years, 7 months and 13 days of pensionable service, corresponding to the period during which the applicant was employed by the. Berufsgenossenschaft, represents the retention of the applicant's pension rights based on the payment of 16 voluntary contributions which he made to the Clerical Insurance Office after the termination of his employment with the Berufsgenossenschaft.
26 The remainder of the application must be rejected.
Costs
27 Since each party has failed in one of its submissions, it is appropriate for the parties to bear their own costs in accordance with the first subparagraph of Article 69 (3) of the Rules of Procedure.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Annuls the decision of the Commission dated 11 December 1978, by which the provisions of Article 102 (2) of the Staff Regulations of Officials of the ECSC were applied to the applicant, to the extent to which the application of a coefficient of 0.8332 to the period of 5 years, 7 months and 13 days of pensionable service, corresponding
WILL v COMMISSION
to the period during which the applicant was employed by the German Mutual Insurance Fund for Workers in Steel Foundries and Rolling-Mills (Hütten- und Walzwerksberufsgenossenschaft) represents the retention of the applicant's pension rights based on the payment of 16 voluntary contributions which he made to the Federal Insurance Office for Clerical Staff (Bundesversicherungsanstalt für Angestellte) after the termination of his employment with the Berufsgenossenschaft ;
2. Orders the parties to bear their own costs.
Koopmans O'Keeffe Bosco
Delivered in open court in Luxembourg on 7 May 1981.
J. A. Pompe T. Koopmans Deputy Registrar President of the First Chamber
O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 2 APRIL 1981 1
Mr President, 29 February 1968 laying down the Staff Members of the Court, Regulations of Officials of the European Communities (Official Journal, English The present staff case concerns the Special Edition 1968 (I), p. 30) for those application of Article 102 (2) of the Staff officials who had already been employed Regulations of the European Coal and during the validity of the ECSC Staff Steel Community of 1 January 1962, Regulations of 1956, reads as follows in subparagraphs (a) and (b) or which the version amended by Regulation No . correspond in substance to Article 107 1473/72 of 30 June 1972 (Official (1) and (2) of the Staff Regulations at Journal, English Special Edition 1972 present in force. These provisions, which (III), p. 703): were expressly maintained in force by the third paragraph of Article 2 of Regu- "(2) The following provisions shall apply lation No 259/68 of the Council of to officials to whom Article 108 of 1 — Translated from the German.