T-24/91

JUDGMENT OF 30.6. 1992 — CASE T-24/91

assimilation of the period of auxiliary review of which is governed by other pro- employment equivalent to a period of visions of the Staff Regulations. temporary employment subject to the two-fold condition that the person con- cerned pay to the institution the amounts which he would have had to pay to the 3. Article 39 of the Conditions of Employ- Community pension scheme by way of ment of Other Servants, concerning the the contribution referred to in Article severance grant, cannot be interpreted as 83(2) of the Staff Regulations and that he meaning that, apart from payments made repay to the institution the employer's in pursuance of Article 42 thereof, no share of the social security contributions other amounts may be deducted from the paid to the national pension scheme under grant. Accordingly, that provision does Article 70 of the Conditions of Employ- not prevent the grant paid to an auxiliary ment of Other Servants. servant who has become a temporary ser- vant and who leaves the service of the Communities in that capacity from being reduced by both the amount of the con- tributions which the person concerned would have had to pay to the Community 2. The duty of assistance laid down in Arti- pension scheme if he had been immedi- cle 24 of the Staff Regulations is con- ately employed as a temporary servant cerned with the defence of officials against and the amount of the employer's contri- the acts of third parties and not against butions paid by the institution to the the acts of the Administration itself, the national pension scheme.

GÓMEZ GONZÁLEZ AND OTHERS v COUNCIL

Georges Vandersanden and Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,

applicants,

v

Council of the European Communities, represented by Moyra Sims, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Xavier Herlin, Director of the Directorate for Legal Affairs at the European Invest- ment Bank, 100, Boulevard Konrad-Adenauer,

defendant,

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JUDGMENT OF 30.6. 1992 — CASE T-24/91

Judgment

The facts of the case

1 The applicants were engaged as members of the auxiliary staff by the General Sec- retariat of the Council on 16 June 1986 to perform the duties of Spanish-language translators. Their employment continued under successive contracts, the last one ending on 31 March 1989. Subsequently, each of the applicants served under a con- tract as a member of the temporary staff for the period from 1 April 1989 to 31 July 1990. N o n e of the applicants was appointed as an official on the expiry of that contract.

2 By letters of 24 November 1989 addressed to the Council's pensions service, each of the applicants submitted the following request, in identical terms: 'In accordance with Staff Note N o 210/83,1 hereby request that my former contract as a member of the auxiliary staff be deemed to have been the equivalent of a contract as a mem- ber of the temporary staff for the purpose of acquiring pension rights, in particular according to the criteria set out in paragraph 4 of that note.'

4 Pursuant to that decision, the Administration calculated the balance of the sever- ance grant payable to the applicants. The method of calculation was set out in a letter sent on 30 July by the competent principal administrator in the Directorate for Personnel and Administration of the General Secretariat of the Council to the Head of the unit dealing with 'pensions and relations with former officials' at the Commission, and was in the following terms:

' O n the footing of the basic (auxiliary) salary actually paid, the following amounts must be calculated:

1. the personal contribution of 6, 75% provided for in Article 41 of the Condi- tions of Employment;

2. the employer's contribution paid to the national social security, in this case 8, 87% for the Belgian social security.

Those two amounts must be deducted from the net amount payable under Article 39 of the Conditions of Employment.'

5 In reply, the Head of that unit, in a letter of the same date, confirmed those meth- ods, which, according to him, were intended 'to regularize, in the Community scheme, the period of service completed by a member of the auxiliary staff who has become a member of the temporary staff and whose contract expires while he has the latter status'. H e added: 'The severance grant payable to him will include the period on the auxiliary staff adjusted as though it had been completed by the per- son concerned as a member of the temporary staff, provided that the person con- cerned pays to the Communities the total of the personal contributions payable

The decision was unlawful because:

— there was no reference in either Article 39 of the Conditions of Employment or Article 12 of Annex VIII to the Staff Regulations to the deductions which the Administration purported to make;

— the Administration was not entitled to withhold sums which have not been appropriated because it would thereby infringe both the principle of good administration and Article 28(l)(a) and (b) of the Financial Regulation of May 1990'.

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s By a memorandum dated 18 January 1991 the complaints were dismissed by the Secretary-General of the Council in the following terms:

s In those circumstances, by an application lodged at the Registry of the Court of First Instance on 19 April 1991, the applicants brought these proceedings for the annulment of the decision of 27 July 1990.

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JUDGMENT O F 30.6. 1992 — CASE T-24/91

10 After lodgement of the statement of defence, the applicants waived their right to lodge a reply. The defendant likewise waived its right to lodge a rejoinder.

n U p o n hearing the report of the Judge-Rapporteur, the Court of First Instance decided to request the parties to produce various documents and opened the oral procedure without any preparatory inquiry.

i2 At the hearing on 15 January 1992, the representatives of the parties presented oral argument and gave answers to the questions put by the Court.

— annul the decision of 27 July 1990 of the Director of Personnel and Adminis- tration of the General Secretariat of the Council;

— order the Council to pay to them the amounts unlawfully deducted, together with interest calculated at 8% per annum since 27 October 1990;

— order the Council to pay the costs.

i7 The defendant contends that the Court should:

— dismiss the application as unfounded;

— order the applicants to pay the costs.

In the operative part of the aforementioned judgment, the Court ruled that an aux- iliary contract may be recognized as having the status of a temporary contract pro- vided both that it was first proven that the posts corresponding to the duties car- ried out appeared in the establishment plan of the Institution and were available, and that the duties carried out as auxiliary employee were not of a transitory nature, i. e. they were permanent Community public service duties.

2. It should be remembered here that pension rights are acquired:

— in the case of auxiliary staff, by affiliation to a compulsory social security scheme, preferably that of the country to whose scheme they were last affiliated or that of their country of origin (see Article 70(1) of the Conditions of Employment of Other Servants);

— in the case of temporary staff, subsequently appointed as officials of the Com- munity, by taking into account for the purpose of calculating years of pension- able service as provided for in Annex VIII to the Staff Regulations (see Article 40, second paragraph of the Conditions of Employment of Other Servants) the period of service as a temporary employee.

3. This means that should a period of service as an auxiliary employee be made equivalent to a corresponding period of service as a temporary employee, the offi- cial would have to undertake to pay to the Communities the contribution provided for in Article 41 of the Conditions of Employment of Other Servants, calculated according to the basic salary corresponding to his grade on the auxiliary staff.

The institution shall be responsible for the employer's contributions required under the legislation in force where the servant is compulsorily affiliated to such a social security scheme, or for two thirds of the servant's contribution where he remains voluntarily affiliated to the national social security scheme of which he was a member before he entered the service of the Communities or where he volun- tarily joins a national social security scheme.'

In practice, an auxiliary employee's personal contributions to the national pension scheme are deducted from his basic salary, while the institution pays the compul- sory employer's contributions to the national scheme. In this way the auxiliary employee acquires pension rights in this national scheme which may be combined with other rights acquired subsequently.

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JUDGMENT OF 30.6. 1992 — CASE T-24/91

21 Pursuant to Article 41 of Title II, 'Temporary staff', of the Conditions of Employ- ment, a member of the temporary staff, on the other hand, is subject to the Com- munity pension scheme. That article provides: 'As regards the funding of the social security scheme provided for in sections B and C, the provisions of Article 83 of the Staff Regulations and Articles 36 and 38 of Annex VIII thereto shall apply by analogy.'

Pursuant to Article 83(2) of the Staff Regulations of Officials of the European Communities (hereinafter the 'Staff Regulations'), the contribution payable by an official — to whom a temporary servant is assimilated in this respect — was, at the material time, fixed at 6, 7 5 % of his basic salary.

Administration, and the fourth an infringement of Article 39 of the Conditions of Employment as regards the severance grant.

The first two submissions: infringement of Article 38 of Annex VIII to the Staff Regulations and infringement of the principle of equal treatment

Arguments of the parties

24 In support of their first submission, the applicants put forward three arguments.

First, they maintain that the social security contributions paid by the Council to the Belgian social security scheme were wrongly deducted from their remuneration, on the ground that the Administration had incorrectly conferred on them the sta- tus of members of the auxiliary staff.

25 Secondly, they submit that the employer's contributions paid to the Belgian social security scheme also constitute a payment wrongly made for which they cannot be liable.

28 As to the second argument, the defendant points out that, pursuant to Article 70 of the Conditions of Employment, the Council assumed responsibility for the employer's contributions to the Belgian social security scheme. Owing to the fact that it was not possible for the Council to recover those contributions, since the applicants were not appointed officials after their auxiliary staff contracts had been assimilated to temporary staff contracts, the Council was unable to be subrogated to their rights against the national pension fund; it therefore decided by analogy to deduct the corresponding amounts from their severance grants. Thus the Council also avoided discrimination in relation to former members of the auxiliary staff subsequently appointed as officials who, unlike the applicants, did not retain their pension rights in the national scheme.

30 In support of their second submission alleging an infringement of the principle of equal treatment, the applicants submit that, following the error — later described by them as a fault — by the Administration in wrongly conferring on them the status of auxiliary servants, their salaries were subject to two sets of contributions, one for the national social security scheme and one for the Community scheme, unlike the other members of the temporary staff who were immediately affiliated to the Community scheme.

3i The defendant replies that the general principle of equal treatment applies only to persons in identical or comparable situations, which was not true of this case. First, the status of auxiliary servant was not wrongly conferred on the applicants, since they were treated as equivalent to temporary servants solely for the purpose of the calculation of their pension rights. Secondly, should the applicants be exempted from contributing to the Community pension scheme, that would amount to reverse discrimination against the other temporary servants who correctly paid their contributions to the Community scheme. Furthermore, unlike temporary ser- vants, the applicants retain rights in the national pension scheme.

The Court's appraisal

32 At the outset the Court notes that, following the questions put to the parties regarding the effect of the Belgian Law of 21 May 1991 establishing in certain respects relations between Belgian pension schemes and those of institutions gov- erned by public international law, the parties agreed that that law had no relevance to this case, since the applicants were unable to request that the amount of the retirement pension corresponding to the period of service in issue be paid to the Council.

35 It must be concluded that by its complaint the applicants did not seek a general review and reclassification of their status. It follows that the decision to reject their complaint concerns only the effects of the substitution of the Community pension scheme for the Belgian pension scheme as regards the calculation of the rights men- tioned in Article 39 of the Conditions of Employment.

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36 Since the subject-matter of the application to the Court is defined by that of the prior administrative procedure, it cannot, in this case, be extended to the more general question of the legality of the classification of the applicants' status.

37 In granting the applicants' request that their period of employment as auxiliary servants be made equivalent to a period of employment completed as temporary servants so as to enable them to receive the severance grant, the Council made that assimilation subject to a twofold condition: first, the applicants had to discharge the obligation to pay to the Council the contributions which they would have had to pay as temporary servants and, secondly, they had to reimburse to the Council the amount of the employer's share of social security contributions which the Council had paid to the Belgian pension scheme. It is necessary, therefore, to examine the lawfulness of that twofold condition to which the impugned decision makes assim- ilation subject.

38 As to the first condition, concerning the payment of the contribution to the Com- munity pension scheme, it should be pointed out that, because the Community pension scheme was substituted for the Belgian pension scheme, the applicants were asked by the Council to regularize their position by paying to the Commu- nity pension scheme the 6.75% contribution provided for in Article 83(2) of the Staff Regulations, which represents the one-third share paid by officials and tem- porary staff towards the financing of the Community pension scheme.

42 In the present case, however, it has not been established that the Council commit- ted a fault entitling the applicants to compensation by affiliating the applicants while they were serving members of its auxiliary staff to the national pension scheme in accordance with Article 70 of the Conditions of Employment. The appli- cants therefore have no existing and payable claim for compensation, against the Council which they would be entitled to set off against the obligation imposed upon them by the Staff Regulations to pay the contribution to the Community pension scheme.

43 It follows that the applicants are wrong to dispute the deduction made from their severance payment, corresponding to the amount that they would have had to pay to the Community pension scheme by way of the contribution referred to in Arti- cle 83(2) of the Staff Regulations. The first and second submissions of the appli- cants must therefore be rejected in so far as they concern that part of the impugned decision.

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GÓMEZ GONZÁLEZ AND OTHERS v COUNCIL

44 As to the second condition attached to that decision, namely reimbursement to the Council of the employer's contribution retained by the Belgian pension scheme, the applicants sought the benefit of assimilation by express reference to Staff Note N o 210/83. That note, intended for Officials who have held one or more auxiliary contracts before being appointed as temporary staff or officials', is not intended for temporary staff who, like the applicants, leave the service of the institution without being appointed officials.

assimilation conditional upon an undertaking from the applicants to apply to the national pension scheme for reimbursement of the contributions paid.

48 Furthermore, the applicants cannot avail themselves of the option reserved for offi- cials in Article 11(2) of Annex VIII to the Staff Regulations to pay to the Com- munities either the actuarial equivalent of the pension rights acquired or the sums repaid to them, at the date of their leaving, from the pension fund to which they belonged before entering the service of the Communities.

49 In the absence of subrogation, could the Council lawfully make assimilation con- ditional upon the applicants' compensating it for the employer's contributions retained by the Belgian pension scheme by requiring them to pay an equivalent amount to the Council?

so The Court finds that this manner of proceeding by the Council was intended, inter alia, to avoid discrimination between temporary staff who leave the Council after being appointed officials and temporary staff who leave without being appointed officials. An official who leaves the Council and subrogates it to his rights via-à-vis the pension fund to which he formerly belonged does not preserve any entitlement whatsoever in the national pension scheme, whereas a member of the temporary staff in the applicants' position who leaves the institution retains his rights in the national pension scheme, since he is unable to consent to any such subrogation by the institution to his rights.

si In requesting the applicants to reimburse the employer's share of the social secu- rity contributions paid to the Belgian pension scheme, the defendant was concerned to ensure that they did not obtain a double advantage. That approach cannot be regarded as contrary either to the rules of the Staff Regulations or to the principle of equal treatment for officials. Furthermore, the Council cannot be required, in

The third submission: infringement of Article 24 of the Staff Regulations

Arguments of the parties

55 With their argument that the Council was wrong to pay social security contribu- tions to the Belgian pension scheme, the applicants submit that, once their position under the Staff Regulations had been regularized by the decision of 27 July 1990, it was for the defendant to take steps to recover from the competent authorities the amounts paid in error. In any event, even if it was for the applicants to take such action, the Administration was under an obligation to provide its assistance to enable them to secure a satisfactory outcome.

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JUDGMENT OF 30.6. 1992 — CASE T-24/91

56 The defendant again refutes the allegation that the contributions in issue were paid in error and that the applicants' position under the Staff Regulations was 'regular- ized', so that there were in fact no amounts paid in error to recover. In any event, Article 24 of the Staff Regulations is not applicable in this case in the absence of any acts committed by third parties against the applicants, since the steps to be taken by the applicants were the result of an alleged failure on the part of the Council itself.

The fourth submission: infringement of Article 39 of the Conditions of Employ- ment

Arguments of the parties

60 The applicants first of all contend that the Administration has failed to base its decision on a statutory provision and to provide a statement of the grounds on which it is based in accordance with Article 25 of the Staff Regulations. Secondly, they argue that, in the words of Article 39 of the Conditions of Employment, the severance grant can be reduced only by the amounts paid, at the servant's express request, in pursuance of Article 42 of the Conditions of Employment.

6i The defendant replies that although Article 39 of the Conditions of Employment requires the severance grant to be reduced by the amounts paid in pursuance of Article 42, it does not preclude the deduction of other amounts from the grant. As the present case is exceptional, the Council had to look for a practical solution in order to ensure that the applicants did not receive unjustified benefits. Further- more, the solution adopted does justice to the very purpose of the severance grant, which is solely to repay the employee's and employer's contributions paid to the pension scheme.

The Court's appraisal

u With regard to the argument based on the infringement of the obligation laid down in Article 25 of the Staff Regulations, to provide a statement of reasons, the Court considers that the reasons stated for the impugned decision provided the applicants with sufficient details to allow them to ascertain whether or not the decision was well-founded and also to enable the Court to review that decision. That argument must therefore be rejected.

67 It follows from all the foregoing considerations that the applicants' application must be declared unfounded.

Costs

68 Pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs, if these have been asked for in the successful party's pleadings. However, pursuant to Article 88 of those Rules, the costs incurred by the institutions in proceedings brought by officials of the Communities are to be borne by those institutions.

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GÓMEZ GONZÁLEZ AND OTHERS v COUNCIL

O n those grounds,

H. Jung R. Garcia-Valdecasas

Registrar President

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