JUDGMENT OF THE COURT (Grand Chamber)

11 September 2007

Case C-227/04 P

Marie-Luise Lindorfer

v

Council of the European Union

(Appeals – Officials – Transfer of pension rights – Professional activities prior to entering the service of the Communities – Calculation of the years of pensionable service – Article 11(2) of Annex VIII to the Staff Regulations – General implementing provisions – Principle of non-discrimination – Principle of equal treatment)

Appeal: against the judgment of the Court of First Instance (Fifth Chamber) of 18 March 2004 in Case T-204/01 Lindorfer v Council [2004] ECR-SC I-A-83 and II-361, seeking to have that judgment set aside .

Held: the judgment is set aside in part and the appeal dismissed as to the remainder.

Summary

1.        Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme

(Staff Regulations of Officials, Art. 1a(1); Annex VIII, Art. 11(2))

2.        Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme

(Staff Regulations of Officials, Art. 77; Annex VIII, Arts 2, 5 and 11(2))

3.        Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme

(Staff Regulations of Officials, Annex VIII, Art. 11(2))

1.        The use of factors which vary according to sex in order to calculate the number of additional years of pensionable service to be credited on the transfer to the Community scheme of pension rights acquired by a Community official in respect of activities before entering the service of the Communities constitutes sex discrimination which is not justified by the need to ensure sound management of the Community pension scheme. In the first place, Article 1a(1) of the Staff Regulations provides that officials are to be entitled to equal treatment under the Staff Regulations without reference to sex, and, secondly, the identical level of contributions from the remuneration of male and female officials does not adversely affect the sound financial management of the pension scheme, the fact that the same equilibrium can be attained with ‘unisex’ actuarial values for calculating additional years of pensionable service being also shown by the fact that the institutions subsequently decided to use such values.

2.        An official who enters the service of a Community institution after having contributed for a certain period to a national pension scheme is not in a position comparable to that of an official recruited at the beginning of his or her career who has contributed to the Community scheme since that time by contributions levied on salary, and cannot therefore claim to have suffered unequal treatment in comparison with the latter. Whereas the amount of the pension of an official recruited at the beginning of his or her career is not in any way determined by the total amount of contributions levied during the years of service, given that it depends, first, on the accomplishment by the official of his career in the service of the Communities, reflected in his final salary and, second, on the length of his service in the Communities, the amount of the pension of an official who contributed to a national pension scheme before entering the service of the Communities is determined by his or her final salary and the length of his or her service to the Communities, to which will be added years of pensionable service determined by reference to the capital introduced when transferring previously-acquired pension rights. A sum of money by which that official contributes to the Community budget and a period of time spent in the service of the Community institutions are not comparable values.

3.        The Communities enjoy broad discretion when they determine the elements of the system of conversion, into a single currency, of amounts transferred in other currencies by national pension funds in respect of pension rights acquired by officials prior to their entry into the service of the Communities.