C-75/88

BONAZZI-BERTOTTILLI AND OTHERS v COMMISSION

OPINION OF MR ADVOCATE GENERAL LENZ * delivered on 5 July 1989

Mr President, June 1978 and expiring in December 1978. Members of the Court, Using this procedure the applicants (amongst others) expressed their interest in having their pension rights transferred.

A — Facts of the case

3. The Commission informed the applicants 4 of the number of years of 1. The three joined cases in which I am pensionable service with the Communities giving my views today concern the transfer which corresponded to their national en­ 5 of the applicants' pension entitlements titlements. At the same time they were acquired under the Italian social-insurance requested to state within one month scheme to the pension scheme of the whether they wished to have their Italian European Communities pursuant to Article actuarial equivalents transferred. The 11 of Annex VIII to the Staff Regulations. 1 applicants gave their consent. 6At the same time 7or shortly afterwards, 8however, they added a reserve concerning the computation of the actuarial equivalent.

OPINION OF MR LENZ — JOINED CASES 75/88, 146/88 AND 147/88

5. They lodged complaints to that effect, is that the sole claim made by the applicants dated 10 August, 30 October and 26 is not admissible in proceedings against the October 1987. Since the complaints Commission challenging a measure which remained unanswered, they then brought the Commission has adopted in accordance actions before the Court of Justice on with Article 11 of Annex VIII to the Staff 9 March and 1 August 1988, seeking the Regulations on the basis of information annulment of the decisions of 12 May and communicated by the Italian social security 22 and 24 July 1987, and reassessment of institution. the period of pensionable service based on a different actuarial equivalent.

10. The tacit implication is, no doubt, that the application of national law by a national 6. For a fuller account of the facts of the institution must be contested in national case and the submissions of the parties, judicial proceedings, which may then give reference is made to the Report for the rise to a request for a preliminary ruling Hearing. under Article 177 of the EEC Treaty if the case calls for an interpretation of the agreement concluded between the Commission and the INPS.

B — Opinion

11. I do not, however, propose to accept that view — and not only because it may no 7. 1. As observed above, the only issue longer be possible to commence proceedings raised by the applicants concerns the before a national court, or because there question whether the actuarial equivalent of would at least be considerable delay in their national pension rights was correctly resolving a question which relates to an calculated by the INPS, namely by agreement entered into by the Community. reference to the appropriate table laid down to give effect to the Italian Law of 1962.

13. It is also clear that, as a party to the be calculated in accordance with tables agreement concluded with the INPS, the drawn up in order to give effect to Article Commission is involved in its application 13 of the Law of 12 August 1962 which are and must adopt some attitude to it. Had the in force on the date of the 'presentazione Commission reached the conclusion that the della domanda di trasferimento'. It further INPS was basing itself on a misinterpre­ provides that the transfer is not effected tation, it would have had to point this out in until the official concerned has expressed his accordance with its duty to have regard for consent, which he must do within 90 days the welfare of officials, and would thus have of the communication by the INPS to the had to ensure the correct application even Commission of the amount to be trans­ of national law. That was in fact the object ferred. of the applicants' complaints, which called for the calculations to be returned to the INPS for amendment. If the Commission did not agree to do so — as may be inferred from its failure to answer the 17. In the main, the applicants claim that it complaints — the only conclusion must be is possible to speak of an application for that it endorsed the INPS's interpretation of transfer only when a definitive wish to the agreement, as it has indeed expressly proceed with the transfer has been acknowledged. expressed following the communication of the amount concerned (in the present case, the consents to the decisions of 12 May, 22 and 24 July 1987). One basis for that view is the fact that it was not until that moment that it was possible to apply under Article 42 14. It may therefore be said without qualifi­ of the Conditions of Employment (for cation that the measures which the payments to be made in order to constitute Commission adopted under Article 11 of or maintain pension rights in the country of Annex VIII to the Staff Regulations are origin), once an agreement to that end had based on a definite view which it holds on been concluded with the INPS on 22 April the interpretation of the agreement 1980. concluded with the INPS.

20. (a) The first point is readily demon­ strated on the basis of the wording of the 22. (b) The alternative claim that the agreement. The procedure to which the decisive date was that of the dispatch to the applicants refer is dealt with in Section (B)2, INPS of the forms which those concerned and this section — unlike Section (B) 1 — were required to fill in (and in which no does not speak of an application but of a more than an interest in the transfer of confirmation ('conferma')· In so far as the pension rights to the Community was agreement makes the formal request the expressed), or that of the receipt of those determining factor for the application of documents by the INPS is refuted — and national law, emphasis can clearly not be the Commission's view that the decisive laid on the definitive decision of the person moment was the commencement of the concerned regarding the calculation of his transfer procedure in 1978 is supported — years of pensionable service, for which a by the very wording of Article 11 of Annex different term altogether is used. VIII to the Staff Regulations, which was applied to the applicants by analogy. Since Article 11 provides that an official who enters the service of the Communities after leaving the service of a government adminis­ tration or of a national or international 21. Furthermore, it is clear that the organization or of an undertaking has the applicants' view is not quite logical. In the right, on becoming established as a Commission's memoranda (the dates of Community official, to pay certain sums to which are mentioned above) concerning the the Communities, the inference is that the calculation of years of pensionable service, transfer of pension rights must be seen as provision was made for those concerned to being as closely connected as possible with give their consent within one month, and it the acquisition of the status of official; was provided (having regard to the 90-day expressed in broader terms — in view of the period laid down in Section (B)2 of the application of Article 11 to cases such as the agreement) that the relevant sums would present ones — such a transfer must be as actually be transferred shortly afterwards closely connected as possible with the (namely by 30 June, 30 September and 1 moment at which (following the adoption of October 1987). Since the applicants gave Regulation No 2615/76 and the conclusion their consent on 25 May 1987, 24 August of the agreement with the INPS) it became 1987 and 7 August 1987 respectively, there feasible. It is difficult to reconcile that would hardly have been sufficient time prior conclusion with reference to points in time

which are relatively remote from that so far as the issue is the time of presentation moment and which were partly determined of the applications — that the decisive factor by the vicissitudes of the work-load borne is the request to the Commission and not by the competent department of the the forwarding of the applicants' forms, Commission (as we were told, the over which they had no further control. competent department of the Commission had to process 800 applications from Ispra alone, and this, added to the other functions performed by that department, resulted in considerable delays in the forwarding of the 25. That is, furthermore, consistent with the applications to the INPS). judgment in Case 129/87,

24. A further point which should not be overlooked in this context is that employees 10 — Judgment of 5 October 1988 in Case 129/87 Eva Fmgntlh interested in the proposal did not deal with v Caisse de pension da emptoyes privés, Luxembourg [1988] ECR 6121. the INPS directly but only with their 11 — Judgment of 29 June 1988 in Case 124/87 G Gritzmann-

OPINION OF MR LENZ — JOINED CASES 75/88, 146/88 AND 147/88

Decree, which were still in force in 1978, 28. We have already seen that the interpre­ could be of relevance to the applicants. tation of the agreement on which the INPS and the Commission base themselves is, for various reasons, a correct one and that it is therefore immaterial whether the Commission is open to criticism on account of the delays in transmitting the application 27. 3. Having reached that conclusion I do forms. We have also observed that all the not need to dwell at any length on the applications for the transfer of pension applicants' second claim, in which they rights were subject to the time-limit which complain that the view taken by the expired in December 1978 and that it Commission is attributable solely to the cannot be assumed that applications were desire to avoid disparities in the treatment forwarded to the INPS before 1981, thereby of employees according to the date of preventing those concerned from relying in receipt of the forms by the INPS — for any circumstances on the tables in the which the Commission was responsible — Italian Decree of 1981. even though the conception of the agreement, in conjunction with the implementing provisions adopted by the 29. Accordingly, it can only be concluded Commission, is such that differences of that that there is no question of the Com­ kind are sometimes unavoidable if the mission's interpretation of the agreement national legal situation changes in the being influenced by any extraneous course of the six-month period allowed for considerations whatever, so that the applications. applicants' second claim is also unsuccessful.