61982J0118

1 . OFFICIALS - EQUALITY OF TREATMENT - EXCLUSIVE ENJOYMENT BY CERTAIN CATEGORIES OF STAFF OF GUARANTEES UNDER THE STAFF REGULATIONS AND SOCIAL SECURITY BENEFITS - DISCRIMINATION - NONE

2 . OFFICIALS - PENSIONS - CALCULATION OF YEARS OF SERVICE - FORMER ESTABLISHMENT STAFF TRANSFERRED TO THE CATEGORY OF TEMPORARY STAFF - ACCOUNT TAKEN ONLY OF YEARS OF SERVICE COMPLETED AS TEMPORARY STAFF - LAWFULNESS

( COUNCIL REGULATION NO 2615/76 , ART . 2 ( 4 ), SECOND PARA .)

3 . OFFICIALS - PENSIONS - PENSION RIGHTS ACQUIRED BEFORE ENTRY INTO THE SERVICE OF THE COMMUNITIES - TRANSFER TO THE COMMUNITY SCHEME - CONDITIONS

( STAFF REGULATIONS , ANNEX VIII , ART . 11 ( 2 ))

1 . IT IS NOT POSSIBLE TO QUESTION THE DIFFERENCES IN STATUS BETWEEN THE VARIOUS CATEGORIES OF PERSONS EMPLOYED BY THE COMMUNITIES , WHETHER AS OFFICIALS PROPERLY SO CALLED OR IN THE VARIOUS CATEGORIES OF STAFF COVERED BY THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS . EACH OF THOSE CATEGORIES IS DEFINED IN ACCORDANCE WITH THE LEGITIMATE REQUIREMENTS OF THE COMMUNITY ADMINISTRATION AND THE NATURE OF THE PERMANENT OR TEMPORARY TASKS WHICH IT HAS TO PERFORM . THE FACT THAT SOME CATEGORIES OF PERSONS EMPLOYED BY THE COMMUNITIES MAY ENJOY GUARANTEES UNDER THE STAFF REGULATIONS AND SOCIAL SECURITY BENEFITS WHICH ARE NOT GIVEN TO OTHER CATEGORIES CANNOT , THEREFORE , BE REGARDED AS DISCRIMINATION .

2 . IN PROVIDING THAT THE NUMBER OF YEARS OF SERVICE AS ESTABLISHMENT STAFF IS NOT TAKEN INTO ACCOUNT IN CALCULATING THE YEARS OF PENSIONABLE SERVICE FOR THE PURPOSES OF DETERMINING THE AMOUNT OF THEIR COMMUNITY PENSION WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VIII TO THE STAFF REGULATIONS , THE SECOND PARAGRAPH OF ARTICLE 2 ( 4 ) OF REGULATION NO 2615/76 DOES NOT TAKE AWAY ANY RIGHT OF FORMER ESTABLISHMENT STAFF WHO ARE TRANSFERRED INTO THE CATEGORY OF TEMPORARY STAFF . IT IS INTENDED ONLY TO SPECIFY WHAT IS ALREADY A CONSEQUENCE OF ARTICLE 39 ( 2 ) OF THE CONDITIONS OF EMPLOYMENT , WHICH IS , MOREOVER , IN ACCORDANCE WITH THE GENERAL PRINCIPLES GOVERNING THE TEMPORAL EFFECT OF LAWS .

3 . THE ONLY MACHINERY COMPATIBLE WITH SOUND FINANCIAL MANAGEMENT OF THE COMMUNITY PENSION SCHEME IN THE EVENT OF RETROACTIVE RECOGNITION OF PERIODS OF INSURANCE COMPLETED UNDER A NATIONAL PENSION SCHEME IS THE APPLICATION OF ARTICLE 11 OF ANNEX VIII TO THE STAFF REGULATIONS WHICH ALLOWS THE TRANSFER OF THE ACTUARIAL EQUIVALENT IN ORDER TO COVER THE LIABILITIES ASSUMED BY THE COMMUNITY SCHEME FOR PERIODS IN RESPECT OF WHICH IT PREVIOUSLY HAD NO RESPONSIBILITY .

SINCE THE ESTABLISHMENT OF THE ACTU- ARIAL EQUIVALENT BY THE ORIGINAL SOCIAL SECURITY INSTITUTION AND ITS REASSESSMENT ON THE BASIS OF THE RULES APPLICABLE UNDER THE COMMUNITY PENSION SCHEME ARE BASED ON DIFFERENT PARTICULARS AND CONSIDERATIONS REGARDING THE HISTORY OF THOSE CONCERNED , THEIR FUTURE PROSPECTS , THE AMOUNT OF CONTRIBUTIONS AND THE NATURE AND THE AMOUNT OF BENEFITS , IT DOES NOT SEEM ABNORMAL THAT THE DETERMINATION OF THE YEARS OF PENSIONABLE SERVICE TO BE TAKEN INTO ACCOUNT FOR THE COMMUNITY PENSION LEADS TO A DIFFERENT FIGURE FROM THE YEARS OF PENSIONABLE SERVICE TAKEN INTO ACCOUNT BY THE NATIONAL INSTITUTION .

IN JOINED CASES 118 TO 123/82

MARIA GRAZIA CELANT ( CASE 118/82 ),

SERENA OSSOLA ( CASE 119/82 ),

SONIA FARFALETTI-CASALI ( CASE 120/82 ),

CLEMENTINA FORNI-CHATANAY ( CASE 121/82 ),

NERINO GEMO ( CASE 122/82 ),

GIUSEPPINA FIOMBO-BREBBIA ( CASE 123/82 ),

TEMPORARY STAFF OF THE COMMISSION PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET AND ASSIGNED TO THE JOINT RESEARCH CENTRE AT ISPRA , REPRESENTED FOR THE WRITTEN PROCEDURE BY CESARE RIBOLZI OF THE MILAN BAR , AND FOR THE ORAL PROCEDURE BY GIUSEPPE MARCHESINI OF THE VICENZA BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL , 18 A RUE DES GLACIS ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY EUGENIO DE MARCH , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY PAOLO DE CATERINI OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATIONS FOR ANNULMENT OF THE COMMISSION ' S DECISIONS FIXING THE AMOUNT OF THE APPLICANTS ' RETIREMENT PENSIONS ,

1 BY APPLICATIONS RECEIVED AT THE COURT REGISTRY ON 5 AND 6 APRIL 1982 RESPECTIVELY MARIA GRAZIA CELANT AND FIVE OTHER APPLICANTS , TEMPORARY STAFF OF THE COMMISSION EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA , BROUGHT ACTIONS FOR THE ANNULMENT OF COMMISSION DECISIONS DETERMINING THE LENGTH OF SERVICE COMPLETED BY THE APPLICANTS FOR THE PURPOSE OF CALCULATING THEIR RETIREMENT PENSION FOLLOWING THEIR TRANSFER FROM THE ITALIAN SOCIAL SECURITY SCHEME TO THE PENSION SCHEME FOR OFFICIALS AND OTHER SERVANTS OF THE COMMUNITY .

2 IT APPEARS FROM THE FILE THAT THE APPLICANTS WERE ORIGINALLY EMPLOYED AS ' ' ESTABLISHMENT STAFF ' ' AT THE JOINT RESEARCH CENTRE AT ISPRA AND THAT IN THAT CAPACITY THEY WERE AFFILIATED TO THE ITALIAN SOCIAL SECURITY SCHEME OPERATED BY THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( HEREINAFTER REFERRED TO AS ' ' THE ISTITUTO NAZIONALE ' ' ).

3 COUNCIL REGULATION NO 2615/76 OF 21 OCTOBER 1976 AMENDING REGULATION NO 259/68 AS REGARDS THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 299 , P . 1 ) ABOLISHED THE STATUS OF ESTABLISHMENT STAFF AND MADE THE APPLICANTS TEMPORARY STAFF UNDER ARTICLE 2 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , TO WHICH HENCEFORTH A NEW CATEGORY WAS ADDED , DEFINED BY THE NEW SUBPARAGRAPH ( D ) TO ARTICLE 2 THUS :

' ' ( D ) STAFF ENGAGED TO FILL TEMPORARILY A PERMANENT POST PAID FROM RESEARCH AND INVESTMENT APPROPRIATIONS AND INCLUDED IN THE LIST OF POSTS APPENDED TO THE BUDGET RELATING TO THE INSTITUTION CONCERNED . ' '

4 REGULATION NO 2615/76 ALSO BROUGHT THE FORMER ESTABLISHMENT STAFF INTO THE COMMUNITY PENSION SCHEME BY AMENDING ARTICLE 39 ( 2 ) OF THE CONDITIONS OF EMPLOYMENT TO READ AS FOLLOWS :

' ' ON LEAVING THE SERVICE , A SERVANT WITHIN THE MEANING OF ARTICLE 2 ( C ) OR ( D ) SHALL BE ENTITLED TO A RETIREMENT PENSION OR SEVERANCE GRANT AS PROVIDED FOR IN TITLE V , CHAPTER 3 OF THE STAFF REGULATIONS AND ANNEX VIII TO THE STAFF REGULATIONS . ' '

5 THE FIRST PARAGRAPH OF ARTICLE 2 ( 4 ) OF REGULATION NO 2615/76 PROVIDES AS A TRANSITIONAL MEASURE FOR THE BENEFIT OF ESTABLISHMENT STAFF WHO HAVE ACQUIRED THE STATUS OF TEMPORARY STAFF THAT THE YEARS OF SERVICE COMPLETED AS ESTABLISHMENT STAFF ARE TO BE TAKEN INTO ACCOUNT WHEN APPLYING THE FIRST PARAGRAPH OF ARTICLE 77 OF THE STAFF REGULATIONS OF OFFICIALS , ACCORDING TO WHICH ENTITLEMENT TO A RETIREMENT PENSION IS CONDITIONAL UPON COMPLETION OF AT LEAST 10 YEARS ' SERVICE .

6 THE SECOND PARAGRAPH OF ARTICLE 2 ( 4 ) OF REGULATION NO 2615/76 PROVIDES , HOWEVER , THAT ONLY THE YEARS OF SERVICE COMPLETED BY FORMER ESTABLISHMENT STAFF AS TEMPORARY STAFF ARE TO BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING THE YEARS OF PENSIONABLE SERVICE WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VIII TO THE STAFF REGULATIONS .

7 FOR REASONS OF EQUITY THE COMMISSION NEVERTHELESS DECIDED TO APPLY BY ANALOGY TO FORMER ESTABLISHMENT STAFF WHO SO REQUESTED THE PROVISIONS OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS , WHICH ALLOWS AN OFFICIAL WHO ENTERS THE SERVICE OF THE COMMUNITY INSTITUTIONS AFTER BEING AFFILIATED TO A NATIONAL SOCIAL SECURITY SCHEME TO HAVE TRANSFERRED TO THE COMMUNITIES THE ACTUARIAL EQUIVALENT OF THE RETIREMENT PENSION RIGHTS WHICH HE HAS ACQUIRED UNDER THE NATIONAL SCHEME . IN SUCH A CASE THE INSTITUTION IN WHICH THE OFFICIAL IS EMPLOYED DETERMINES , TAKEN INTO ACCOUNT HIS GRADE ON ESTABLISHMENT , THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH TO CREDIT HIM UNDER ITS OWN PENSION SCHEME ON THE BASIS OF THE AMOUNT OF THAT ACTUARIAL EQUIVALENT .

8 ON 2 MARCH 1978 AN AGREEMENT WAS MADE BETWEEN THE COMMUNITIES AND THE ISTITUTO NAZIONALE FOR THE PURPOSE OF TRANSFERRING TO THE COMMUNITY SCHEME THE PENSION RIGHTS OF STAFF PREVIOUSLY AFFILIATED TO THE ITALIAN PENSION SCHEME .

9 FOLLOWING THAT AGREEMENT THE COMMISSION PUBLISHED AN ANNOUNCEMENT IN STAFF COURIER NO 391 OF 14 JUNE 1978 . SHORTLY AFTERWARDS , ON 13 JULY 1978 , IT CIRCULATED THE SAME NOTICE TO THE JOINT RESEARCH CENTRE AT ISPRA TO BRING THE AGREEMENT TO THE NOTICE OF THOSE CONCERNED AND FIXED 13 DECEMBER 1978 AS THE FINAL DATE FOR SUBMITTING REQUESTS FOR A TRANSFER . A CIRCULAR OF 10 APRIL 1979 INFORMED THE TEMPORARY STAFF CONCERNED THAT THEY MIGHT POSTPONE THEIR FINAL DECISION UNTIL THEY WERE GIVEN EXACT DETAILS OF THE YEARS OF PENSIONABLE SERVICE CALCULATED FOR THE PURPOSE OF DETERMINING THEIR COMMUNITY PENSION , ON THE BASIS OF THE ACTUARIAL EQUIVALENT TO BE TRANSFERRED .

10 THE APPLICANTS , WHO HAD GIVEN NOTICE OF THEIR INTENTION TO TAKE ADVANTAGE OF THAT OPPORTUNITY , WERE NOTIFIED IN JUNE AND JULY 1981 OF THE PRECISE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH THEY WERE TO BE CREDITED ; AT THE SAME TIME THEY WERE ASKED TO MAKE A FINAL DECISION ON THE MATTER WITHIN 30 DAYS .

11 ALL THE APPLICANTS CONFIRMED THEIR WISH TO EXERCISE THE OPTION OF TRANSFERRING THEIR PENSION RIGHTS TO THE COMMUNITY SCHEME , BUT THEY EXPRESSED RESERVATIONS AS TO THE METHOD OF CALCULATING THE YEARS OF PENSIONABLE SERVICE WITH WHICH THEY WERE TO BE CREDITED .

12 SUBSEQUENTLY THEY BROUGHT COMPLAINTS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CONCERNING THE COMMISSION ' S FAILURE TO TAKE INTO ACCOUNT IN DETERMINING THEIR COMMUNITY PENSION RIGHTS ALL THE YEARS OF PENSIONABLE SERVICE COMPLETED BY THEM AS ESTABLISHMENT STAFF . WHEN THOSE COMPLAINTS RECEIVED NO ANSWER WITHIN THE PERIOD SPECIFIED IN THE STAFF REGULATIONS THE PRESENT APPLICATIONS WERE BROUGHT ON 5 AND 6 APRIL 1982 .

ADMISSIBILITY

13 THE COMMISSION CONTENDS THAT THE RELEVANT MEASURE IN DETERMINING THE TIME-LIMIT FOR BRINGING AN ACTION IS NOT THE NOTIFICATION TO THE APPLICANTS OF THE DEFINITIVE CALCULATION OF THEIR RIGHTS IN JUNE AND JULY 1981 BUT THE DECISION TO APPLY TO FORMER ESTABLISHMENT STAFF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS , WHICH WAS BROUGHT TO THE ATTENTION OF THOSE CONCERNED IN JUNE AND JULY 1978 . IT IS THAT DECISION WHICH IS THE MEASURE WHICH MAY ADVERSELY AFFECT THE APPLICANTS WITHIN THE MEANING OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS . THAT IS WHEN THE APPLICANTS WERE IN A POSITION TO APPRECIATE PRECISELY THE EFFECTS AND LIMITS OF THEIR PERSONAL SITUATION AND OUGHT TO HAVE BROUGHT THEIR ACTIONS . THE NOTIFICATION OF THE DEFINITIVE CALCULATION IN 1981 WAS ONLY THE LOGICAL CONSEQUENCE OF A DECISION TAKEN LONG BEFORE AND WHICH WAS NOT CHALLENGED IN DUE TIME .

14 THE OBJECTION RAISED BY THE COMMISSION MUST BE DISMISSED AS CONTRARY TO THE GOOD FAITH WHICH MUST GOVERN RELATIONS BETWEEN THE COMMUNITY ADMINISTRATION AND ITS OFFICIALS AND OTHER STAFF , NOTWITHSTANDING THE EXISTENCE OF A DISPUTE .

15 IT MUST BE OBSERVED IN THAT RESPECT THAT THE NOTICES CIRCULATED IN JUNE AND JULY 1978 WERE NOT DECISIONS BUT OFFERS TO THE STAFF CONCERNED , THE RESULTS OF WHICH DEPENDED ON THEIR ACCEPTANCE . IN ADDITION , IN VIEW OF THE COMPLEXITY OF THE CALCULATIONS USED TO DETERMINE AS REGARDS EACH OF THE APPLICANTS INDIVIDUALLY THE ACTUARIAL EQUIVALENT TO THE RIGHTS ACQUIRED UNDER THE NATIONAL SCHEME TO WHICH THEY HAD PREVIOUSLY BEEN AFFILIATED AND THE CONVERSION THEREOF INTO YEARS OF PENSIONABLE SERVICE ACCORDING TO THE RULES OF THE COMMUNITY SCHEME , IT IS OBVIOUS THAT THE APPLICANTS WERE NOT IN A POSITION USEFULLY TO MAKE ANY COMPLAINT OR TO BRING AN ACTION BEFORE THE DATE OF THE DECISIONS NOTIFIED IN JUNE AND JULY 1981 .

SUBSTANCE

16 THE APPLICANTS ' COMPLAINTS ARE ATTRIBUTABLE TO THE FACT THAT THE ACTUARIAL EQUIVALENT ESTABLISHED BY THE ITALIAN INSTITUTION HAS BEEN REASSESSED BY THE COMMUNITY ACCORDING TO ITS OWN ACTUARIAL RULES WITH THE RESULT THAT THE NUMBER OF YEARS OF PENSIONABLE SERVICE CREDITED TO THE APPLICANTS IS APPRECIABLY LESS THAN THE PERIOD OF THEIR EMPLOYMENT AT THE JOINT RESEARCH CENTRE OF THE COMMUNITY . THE APPLICANTS DO NOT DENY THAT THE EXISTING ACTUARIAL RULES HAVE BEEN CORRECTLY APPLIED ON BOTH SIDES ; THEIR CLAIM RELATES TO THE ISSUE WHETHER BY APPLYING ITS OWN ACTUARIAL RULES THE COMMUNITY MAY REDUCE THE YEARS OF PENSIONABLE SERVICE TAKEN INTO ACCOUNT IN DETERMINING THEIR COMMUNITY PENSION TO A PERIOD SHORTER THAN THE TIME FOR WHICH THEY HAD ACTUALLY BEEN EMPLOYED .

17 THEY COMPLAIN THAT THE COMMISSION ADOPTED A FALSE ANALOGY , TO THEIR DETRIMENT , IN ASSIMILATING THE POSITION OF FORMER ESTABLISHMENT STAFF TO THAT OF OFFICIALS WHO ENTER THE SERVICE OF THE COMMUNITY AFTER EMPLOYMENT IN THE ADMINISTRATION OF A MEMBER STATE OR WITH PRIVATE EMPLOYERS . IN THEIR OPINION THE APPROPRIATE ANALOGY IS NOT WITH THE POSITION CONTEMPLATED BY ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS BUT WITH THE POSITION OF ESTABLISHED OFFICIALS , SINCE THE APPLICANTS , AS DISTINCT FROM THE PERSONS CONTEMPLATED BY ARTICLE 11 ( 2 ) OF ANNEX VIII , HAVE WORKED FROM THE BEGINNING WITH THE COMMUNITY . IN THEIR REPLY THE APPLICANTS CHALLENGED THE VALIDITY OF REGULATION NO 2615/76 ON THE GROUND THAT ARTICLE 2 ( 4 ) THEREOF RECOGNIZED SERVICE COMPLETED AS ESTABLISHMENT STAFF ONLY AS REGARDS COMPLETION OF THE MINIMUM LENGTH OF SERVICE REQUIRED TO GIVE ENTITLEMENT TO A PENSION BUT EXCLUDED CONSIDERATION THEREOF FOR THE PURPOSE OF DETERMINING THE NUMBER OF YEARS OF PENSIONABLE SERVICE .

18 IN THE SECOND PLACE , THE APPLICANTS CONSIDER THAT THE DIFFERENCE IN TREATMENT BETWEEN THEMSELVES AND OFFICIALS AMOUNTS TO DISCRIMINATION AGAINST THEM . FINALLY THEY CLAIM THAT THE COMMISSION ' S CONDUCT AMOUNTS TO A MISUSE OF POWERS .

19 IN THEIR REPLY THE APPLICANTS RAISED A FRESH ISSUE BASED ON THE COMMISSION ' S APPLICATION OF A WEIGHTING WHICH APPEARS IN THE DOCUMENTS IN WHICH THE APPLICANTS ' SALARY IS DETERMINED IN BELGIAN FRANCS AT THE DATE ON WHICH THEY BECOME TEMPORARY STAFF . THEY CONSIDER THAT THE APPLICATION OF THE WEIGHTING RESULTED IN A CONSIDERABLE REDUCTION OF THEIR NUMBER OF YEARS OF PENSIONABLE SERVICE .

20 THAT ISSUE MUST BE DISREGARDED AS BEING OUT OF TIME . IT WAS INTRODUCED ONLY IN THE REPLY AND DID NOT ENABLE THE COMMISSION TO SUBMIT A PROPER DEFENCE , ESPECIALLY AS ITS SCOPE IS NOT ADEQUATELY EXPLAINED IN THE DOCUMENTS SUBMITTED BY THE APPLICANTS .

21 AS FOR THE SUBMISSIONS BASED ON BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION AND ALLEGED MISUSE OF POWERS , THEY OVERLAP IN FACT WITH THE FIRST SUBMISSION CONCERNING THE ALLEGED FALSE ANALOGY BETWEEN THE POSITION OF THE APPLICANTS AND THAT OF PERSONS CONTEMPLATED BY ARTICLE 11 ( 2 ) OF ANNEX VIII . THOSE SUBMISSIONS MAY THEREFORE BE CONSIDERED TOGETHER .

22 AS REGARDS THE ARGUMENTS PUT FORWARD BY THE APPLICANTS IT MUST BE OBSERVED IN THE FIRST PLACE THAT IT IS NOT POSSIBLE TO QUESTION THE DIFFERENCES IN STATUS BETWEEN THE VARIOUS CATEGORIES OF PERSONS EMPLOYED BY THE COMMUNITIES , WHETHER AS OFFICIALS PROPERLY SO CALLED OR IN THE VARIOUS CATEGORIES OF STAFF COVERED BY THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS . AS THE COMMISSION RIGHTLY STATED , EACH OF THOSE CATEGORIES IS DEFINED IN ACCORDANCE WITH THE LEGITIMATE REQUIREMENTS OF THE COMMUNITY ADMINISTRATION AND THE NATURE OF THE PERMANENT OR TEMPORARY TASKS WHICH IT HAS TO PERFORM . THE FACT THAT SOME CATEGORIES OF PERSONS EMPLOYED BY THE COMMUNITIES MAY ENJOY GUARANTEES UNDER THE STAFF REGULATIONS AND SOCIAL SECURITY BENEFITS WHICH ARE NOT GIVEN TO OTHER CATEGORIES CANNOT , THEREFORE , BE REGARDED AS DISCRIMINATION . IN PARTICULAR IT MUST BE POINTED OUT THAT A GENERAL FEATURE OF THE POSITION OF STAFF COVERED BY THE CONDITIONS OF EMPLOYMENT IS THE CONTRACTUAL NATURE OF THE EMPLOYMENT RELATIONSHIP AND THE AFFILIATION OF A CONSIDERABLE PROPORTION OF SUCH STAFF TO THE NATIONAL SOCIAL SECURITY INSTITUTIONS OF EITHER THEIR COUNTRY OF ORIGIN OR THEIR PLACE OF RESIDENCE .

23 IN THE SECOND PLACE THE APPLICANTS FREELY ACCEPTED BY CONTRACT THEIR STATUS AS ESTABLISHMENT STAFF WHICH ENTAILED AFFILIATION TO THE SOCIAL SECURITY SCHEME OF THEIR COUNTRY OF RESIDENCE . SIMILARLY , IT MUST BE EMPHASIZED THAT THE TRANSFER FROM THE ITALIAN SOCIAL SECURITY SCHEME TO THE COMMUNITY PENSION SCHEME WAS AN OPTION WHICH THE APPLICANTS HAD AND FREELY EXERCISED WHEN THEY HAD PRECISE KNOWLEDGE OF THE CONSEQUENCES . THEY HAD THE OPPORTUNITY THEN TO ASSESS THE ADVANTAGES AND DISADVANTAGES OF THEIR CHOICE AND TO MAKE A DECISION IN ACCORDANCE WITH THEIR INTERESTS .

24 QUITE APART FROM THOSE CONSIDERATIONS , THE ISSUES RAISED BY THE APPLICANTS CONCERNING THE VALIDITY OF THE TRANSITIONAL PROVISIONS IN REGULATION NO 2615/76 AND THE MEASURE ADOPTED BY THE COMMISSION ARE NOT WELL FOUNDED .

25 WHEN IT DECIDED TO ABOLISH THE STATUS OF ESTABLISHMENT STAFF AND TO TRANSFER SUCH STAFF TO THE CATEGORY OF TEMPORARY STAFF THE COUNCIL GAVE FORMER ESTABLISHMENT STAFF , BY MEANS OF AN ADDITION TO ARTICLE 39 OF THE CONDITIONS OF EMPLOYMENT , THE RIGHT TO A COMMUNITY PENSION IN ACCORDANCE WITH THE STAFF REGULATIONS AND ANNEX VIII THERETO WITH EFFECT FROM THE TIME THEY BECAME TEMPORARY STAFF . BY MEANS OF THE TRANSITIONAL PROVISION IN THE FIRST PARAGRAPH OF ARTICLE 2 ( 4 ) OF REGULATION NO 2615/76 THE COUNCIL ENABLED , IN THE APPLICANTS ' INTERESTS , THE LENGTH OF THEIR SERVICE AS ESTABLISHMENT STAFF TO BE RECOGNIZED FOR THE PURPOSE OF THE CONDITION REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 77 OF THE STAFF REGULATIONS , WHICH MAKES ENTITLEMENT TO A PENSION CONDITIONAL UPON HAVING COMPLETED AT LEAST TEN YEARS ' SERVICE . THE SECOND PARAGRAPH OF ARTICLE 2 ( 4 ) OF REGULATION NO 2615/76 , THE VALIDITY OF WHICH THE APPLICANTS CHALLENGE , STATES THAT THE SAME PERIOD OF SERVICE IS NOT TO BE TAKEN INTO ACCOUNT IN CALCULATING THE YEARS OF PENSIONABLE SERVICE WHICH DETERMINE THE AMOUNT OF PENSION WITHIN THE MEANING OF ARTICLE 2 OF ANNEX VIII TO THE STAFF REGULATIONS . THE PROVISION DOES NOT REMOVE ANY OF THE APPLICANTS ' RIGHTS SINCE IT IS INTENDED ONLY TO SPECIFY WHAT IS ALREADY A CONSEQUENCE OF ARTICLE 39 ( 2 ) OF THE CONDITIONS OF EMPLOYMENT AND WHICH IS , MOREOVER , IN ACCORDANCE WITH THE GENERAL PRINCIPLES GOVERNING THE TEMPORAL EFFECT OF LAWS . THE COUNCIL WAS UNDER NO OBLIGATION TO MAKE TRANSITIONAL PROVISIONS IN FAVOUR OF THE APPLICANTS MORE ADVANTAGEOUS THAN THOSE ARISING FROM REGULATION NO 2615/76 .

26 SIMILARLY , THE COMMISSION WAS UNDER NO OBLIGATION TO GIVE THE APPLICANTS ADDITIONAL BENEFITS IN RELATION TO A PENSION IN EXCESS OF THOSE WHICH RESULT FROM THE APPLICATION OF REGULATION NO 2615/76 . IT CANNOT THEREFORE BE REPROACHED FOR HAVING PROVIDED , IN THE INTEREST OF THOSE CONCERNED , AN OPTION REGARDING THE APPLICATION OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS . CONTRARY TO WHAT THE APPLICANTS MAINTAIN , THE SOLUTION OFFERED BY THE COMMISSION IS NOT BASED ON A FALSE ANALOGY . THE POSITION OF THE APPLICANTS HAS IN COMMON WITH THAT OF THOSE REFERRED TO BY THE PROVISION CITED THE FACT THAT BEFORE THEIR ADMISSION TO THE COMMUNITY PENSION SCHEME THEY WERE AFFILIATED TO ANOTHER SOCIAL SECURITY SCHEME . THE FACT THAT SUCH AFFILIATION WAS BASED ON AN EMPLOYMENT RELATIONSHIP WITH A COMMUNITY INSTITUTION DOES NOT ALTER THE POSITION OF THE APPLICANTS SINCE THE ARRANGEMENT , WHICH THOSE CONCERNED FREELY ACCEPTED WHEN THEY ENTERED EMPLOYMENT , WAS PART AND PARCEL OF THEIR PARTICULAR STATUS .

27 THE APPLICANTS CANNOT THEREFORE CLAIM FULL ENJOYMENT OF THE COMMUNITY PENSION SCHEME RETROACTIVELY AND WITHOUT ANY CONSIDERATION ON THEIR PART . THE ONLY MACHINERY COMPATIBLE WITH SOUND FINANCIAL MANAGEMENT OF THE COMMUNITY PENSION SCHEME IN THE EVENT OF RETROACTIVE RECOGNITION OF PERIODS OF INSURANCE IS THE APPLICATION OF ARTICLE 11 OF ANNEX VIII TO THE STAFF REGULATIONS WHICH ALLOWS THE TRANSFER OF THE ACTUARIAL EQUIVALENT IN ORDER TO COVER THE LIABILITIES ASSUMED BY THE COMMUNITY SCHEME FOR PERIODS IN RESPECT OF WHICH IT PREVIOUSLY HAD NO RESPONSIBILITY .

28 SINCE THE ESTABLISHMENT OF THE ACTUARIAL EQUIVALENT BY THE ORIGINAL SOCIAL SECURITY INSTITUTION AND ITS REASSESSMENT ON THE BASIS OF THE RULES APPLICABLE UNDER THE COMMUNITY ' S PENSION SCHEME ARE BASED ON DIFFERENT PARTICULARS AND CONSIDERATIONS REGARDING THE HISTORY OF THOSE CONCERNED , THEIR FUTURE PROSPECTS , THE AMOUNT OF CONTRIBUTIONS AND THE NATURE AND AMOUNT OF BENEFITS , IT DOES NOT SEEM ABNORMAL THAT THE DETERMINATION OF THE YEARS OF PENSIONABLE SERVICE TO BE TAKEN INTO ACCOUNT FOR THE COMMUNITY PENSION LEADS TO A DIFFERENT FIGURE FROM THE YEARS OF PENSIONABLE SERVICE TAKEN INTO ACCOUNT BY THE NATIONAL INSTITUTION . SINCE SUCH YEARS OF PENSIONABLE SERVICE HAVE RELEVANCE ONLY IN RELATION TO BENEFITS TO WHICH THEY GIVE ENTITLEMENT UNDER THE VARIOUS NATIONAL AND COMMUNITY SCHEMES , THEY ARE NOT COMPARABLE INTER SE SAVE TO BRING INTO ACCOUNT IN ACTUARIAL TERMS AN ASSESSMENT BOTH OF THE PERSONAL POSITION OF EACH PERSON CONCERNED AND THE GENERAL CHARACTERISTICS OF THE SOCIAL SECURITY SCHEMES IN QUESTION . THE APPLICANTS , WHO HAVE CONFINED THEMSELVES TO MAKING A COMPARISON BETWEEN THEMSELVES AND COMMUNITY OFFICIALS , HAVE PRODUCED NO FACTOR CAPABLE OF RAISING DOUBT AS TO WHETHER THE ACTUARIAL FORMULAE USED BY THE COMMUNITY PROPERLY TRANSLATE THE RELATIONSHIP BETWEEN THE ACTUARIAL EQUIVALENT REACHED BY THE ITALIAN INSTITUTION AND THE REASSESSMENT THEREOF ACCORDING TO THE CRITERIA OF THE COMMUNITY SCHEME .

29 IT FOLLOWS FROM ALL THE FOREGOING THAT IN PROPOSING TO THE APPLICANTS A TRANSFER TO THE COMMUNITY PENSION SCHEME ON TERMS WHICH ARE COMPATIBLE WITH THE STAFF REGULATIONS THE COMMISSION HAS NOT ACTED UNLAWFULLY IN THEIR RESPECT , THAT IT HAS NOT DISCRIMINATED AGAINST THEM AND THAT IT HAS NOT MISUSED ITS POWERS .

30 THE APPLICATIONS MUST THEREFORE BE DISMISSED .

COSTS

31 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

32 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

33 THE COURT MAY NEVERTHELESS , UNDER THE SECOND PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , ORDER A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR . IT IS RIGHT TO APPLY THAT PROVISION AGAINST THE COMMISSION WHICH HAS UNNECESSARILY COMPLICATED THE PROCEEDINGS BY RAISING A PATENTLY ILL-FOUNDED OBJECTION AS TO ADMISSIBILITY . THE COMMISSION MUST THEREFORE BE ORDERED TO PAY PART , ASSESSED AS ONE THIRD , OF THE COSTS OF THE APPLICANTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS .

2 . ORDERS THE COMMISSION TO BEAR ITS OWN COSTS AND ONE THIRD OF THE APPLICANT ' S COSTS , THE REMAINDER OF THEIR COSTS TO BE BORNE BY THE APPLICANTS .