C-124/87

5. The applicant challenged that decision of the defendant first by means of a complaint 2. The applicant was engaged by the and then by bringing this action. In her defendant in 1962 as a local employee 1and view, the decision infringed the principle of then, in 1976, as a member of the temporary protection of legitimate expectations and staff at the Joint Research Centre in Ispra. breached, or incorrectly interpreted, the general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations, since, regard being had to the various versions of these provisions, the period of six months referred to therein 3. On 6 June 1985 she applied to have her could not be regarded as a limitation period pension rights transferred. By a letter of 2 but was merely for administrative conve­ August 1985, the defendant pointed out to nience. the applicant that under the general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations she ought to have made her application before 31 December 1978. However, a Com­ 6. Consequently, the applicant claims that mission decision of 12 December 1984 the Court should: enabled officials who had submitted their requests late to benefit from the application

* Translated from the German. 1 — It may be inferred from the employment contracts in her (1) Annul the defendant's decision of 20 personal file that she was employed as a local employee and not, as both parties stated, a member of the estab­ May 1986 revoking the preceding lishment staff. decision of 2 August 1985 which

7. The defendant claims that the Court should: 12. It should be pointed out first of all that the parties devoted a large part of their arguments to the legal situation applicable (1) Dismiss the action as unfounded, and to officials without, however, discussing in detail whether that situation may simply be extended to members of the temporary staff. Both parties thus seem to proceed on the (2) Order the parties to bear their own assumption that the time-limits mentioned in costs. the general provisions for giving effect to Article 11 (2) also apply to the applicant. I shall begin my assessment of the case with 8. The defendant regrets that it was obliged an examination of that question. to revoke its decision of 2 August 1985. That decision was unlawful as its decision of 12 December 1984 was not applicable to the applicant's request. 13. Since 1976, the applicant has been a member of the temporary staff within the meaning of Article 2 (d) of the Conditions 9. The applicant cannot, says the defendant, of Employment of Other Servants of the rely on the principle of protection of European Communities. Their pension legitimate expectations, as the decision of 2 rights are determined, pursuant to Article 39 August 1985 did not cause her to do or to (2) of those conditions, in accordance with refrain from doing anything specific. The Section V, Chapter 3 of the Staff Regu­ communication of 2 August 1985 was not a lations and Annex VIII thereto. Article 11 decision capable of conferring rights on the (2) of Annex VIII to the Staff Regulations applicant. thus applies in principle also to the applicant, and she is entitled to transfer to the Community pension scheme any pension rights acquired with a national organization. 10. If the time-limits mentioned in the general provisions for giving effect to Article 11 (2) were not adhered to, officials who made their applications later would be placed at an advantage since the Italian 14. Officials may apply for such transfer old-age insurance scheme takes, as the under Article 11 (2) of Annex VIII to the relevant date for the transfer of pension Staff Regulations on becoming established. rights, the date on which the application is Under the defendant's general provisions received by it, rather than the date of estab­ for giving effect to Article 11 (2) of 2 July lishment of an official. 1969, this application had to be made within

15. By a decision of 4 April 1972, the Commission deleted the words which 20. The Staff Regulations themselves do not showed that that period was a limitation lay down either for officials or for members period, on account of the great number of of the temporary staff a limitation period requests submitted outside the time-limit. for submitting the request for transfer of rights. However, it can be inferred from the fact that officials may only lodge such an 16. Following a further amendment to the application on being established, that the general provisions in March 1977, the defendant has the power to lay down a limi­ six-month period for bringing the tation period in the general provisions for applications runs either from notification of giving effect to the Staff Regulations which the official's establishment or from the it issues pursuant to Article 110 thereof, moment when a transfer of rights becomes since the date of establishment gives a possible, or from the entry into force of the precise indication of when the official may said provisions. In the version of the general avail himself of his right in this respect. provisions for giving effect to Article 11 (2) which was supplied to the Court by the defendant the date of entry into force is not mentioned; nor is there any indication that 21. Matters are different, however, as the time-limit is a limitation period. regards members of the temporary staff, whose contracts are concluded for a definite or indefinite period but in respect of whom there is no comparable clearly definable 17. The three versions of the aforemen­ moment in time like the date of estab­ tioned general provisions share the common lishment. If one wished to consider it feature that they contain no express permissible at all to lay down a limitation provision giving members of the temporary period in the case of members of the staff the possibility of transferring pension temporary staff as well, then it must at least rights. be required that the date from which this period begins to run should be clearly determined. 18. It was only by a notice from the head of personnel at the Joint Research Centre in Ispra dated 13 July 1978 that members of the temporary staff were informed that they 22. Moreover, the difference in the situ­ could avail themselves of the possibility of ations of members of the temporary staff rights of transfer. Such persons were given a and established officials precludes the period of six months from the date of publi­ application by analogy of Article 11 (2) of cation of the notice, that is to say 14 July Annex VIII to the Staff Regulations. 1978, within which to lodge their applications.

24. The situation is different for a member of the temporary staff, who, at least on 26. The general reference in Article 39 (2) entering the service of the Community, can of the Conditions of Employment to Annex by no means foresee how long he will be VIII to the Staff Regulations does not cover employed by the Community and whether Article 11 (2) of the Annex, as that article he will be able to complete the minimum refers to a factual element, namely the period of 10 years after which he is entitled establishment of an official, which in the to a pension under the Staff Regulations. case of a member of the temporary staff That is to say, either he has a contract for a does not exist and, in the nature of things, definite period, and then there is the uncer­ cannot exist. The defendant's submission tainty as to whether it will be renewed, or that the end of the probationary period he has one for an indefinite period, and in could be taken as the relevant date is not that case he may be given notice of between convincing in this connection since, first of 3 and 10 months (see Article 47 of the all, the completion of a probationary period Conditions of Employment of Other is not compulsory for members of the Servants of the European Communities, to temporary staff under Article 14 of their which the applicant's contract of Conditions of Employment and, secondly, employment expressly refers). Precisely the legal situation of a member of the because it cannot be excluded that members temporary staff, even if he has successfully of the temporary staff may take up a completed a probationary period, is not subsequent professional activity outside the comparable with that of an established Community, or is at least rather more official. probable than in the case of officials, they cannot be expected, at least during a rela­ tively short period of time, to take a definitive decision about their pension 27. As the Staff Regulations and the situation. Conditions of Employment cannot therefore be applied as they stand, because the reference can have no practical effect in this case, it was for the defendant in its capacity as appointing authority to provide expressly 25. It must of course be acknowledged that for the reference in question by means of its Article 11 (1) of Annex VIII to the Staff general provisions for giving effect to Regulations gives a person the possibility, Article 11 (2) and thus make it 'applicable' on quitting the Community, to have pension in actual fact. But this is precisely what it rights transferred to a national body. In did not do. view of the complicated transfer machinery, however, a member of the temporary staff can scarcely be expected to arrange several times for transfers from the national pension scheme to the Community scheme and later 28. As a .provisional conclusion it may back to the national scheme. Finally, even therefore be said that neither the Staff

Regulations nor the Conditions of certainty and legal clarity. She cannot Employment of other servants of the therefore be met with the objection that Community, which on this point refer to the only in 1985 did she make the application Staff Regulations, lay down a limitation for transfer of her pension rights. As was period for the submission of requests for explained at the hearing, she did this only transfer by members of the temporary staff. when she was able to evaluate the progression of her rights and when the completion of the 10-year period of service as a member of the temporary staff was no longer very far off. 29. It must further be determined whether the defendant's general provisions for giving effect to Article 11 (2) provide for a limi­ tation period. In this connection it must first be noted that those provisions, by their 32. Nor am I persuaded by the defendant's wording, deal only with the situation of arguments that late applications for transfer officials and not of members of the of pension rights from the Italian scheme temporary staff. In addition it should be could, on account of the methods of calcu­ stated that words giving the time-limit for lation, lead to an unjustified advantage applications the effect of a limitation period accruing to the person concerned on the were contained in the first version of the ground that an accurate calculation back to implementing provisions but were later the date of the official's establishment is expressly deleted even in respect of officials, difficult and is not carried out by the Italian on account of the large number of late authorities. Should this undue advantage applications. Therefore there is much weight actually occur, it would be for the in the argument that even for officials there defendant as the appointing authority to is no longer any limitation period under the take account of this factor by an appro­ general provisions; in this connection we priate amendment to its provisions for may disregard the issue whether this is giving effect to Article 11 (2). It cannot be compatible with the provision contained in accepted that the defendant should Article 11 (2) of Annex VIII to the Staff disregard the right of members of the Regulations. temporary staff to a transfer of pension rights, particularly as it itself agreed the methods of transfer with the Italian auth­ orities and the latter are prepared to make available to the Community the amounts 30. It should nevertheless be observed that required. those provisions neither expressly mention members of the temporary staff nor expressly apply a limitation period to them, nor yet do they indicate the point in time from which such a limitation period would begin to run. 33. This result, arrived at by an interpre­ tation of the Staff Regulations, the Conditions of Employment and the general provisions for giving effect to Article 11 (2), is not altered by the fact that the head of 31. In these circumstances, to apply a limi­ personnel at the Ispra Joint Research Centre tation period to the applicant as a member mentioned for the first time in his notice of of the temporary staff would, in my view, 13 July 1978 that members of the temporary be contrary to the principles of legal staff had the possibility of transferring their