ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

2 August 2016

Soldimar Urena de Poznanski

v

European Commission

‛Civil service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Transfer to the EU pension scheme of pension rights acquired under other schemes — Decision crediting additional pensionable years applying the new GIPs relating to Articles 11 and 12 of Annex VIII to the Staff Regulations — Article 81 of the Rules of Procedure — Action in part manifestly inadmissible and in part manifestly unfounded’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Soldimar Urena de Poznanski sought annulment of the decision of the European Commission crediting additional pensionable years to the European Union pension scheme following the transfer of the pension rights which she had acquired before entering the service of the EU.

Held:

The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded. Each party is to bear its own costs.

Summary

1. Acts of the institutions — Temporal application — Immediate application of the new rule to the future effects of a situation which arose under the old rule — Adoption of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Application to the transfer of acquired pension rights applied for before the adoption of the new rule but effected after its entry into force — Infringement of acquired rights and of the principle of legitimate expectations — None

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

2. Officials — Pensions — Pension rights acquired before entry into the service of the EU — Transfer to the EU scheme — Adoption of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations — Difference in treatment between officials who have had the capital representing their pension rights transferred to the EU scheme before and after the entry into force of those provisions, respectively — Breach of the principle of equal treatment — None

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

1.  The application of new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations concerning the transfer to the EU pension scheme of pension rights acquired under another pension scheme, applied for before those provisions were adopted but effected after their entry into force, is not contrary to Article 11(2) of Annex VIII to the Staff Regulations.

   In that regard, according to a generally accepted principle and save as otherwise provided, a new rule applies immediately to situations yet to arise and to the future effects of situations which arose, but were not fully constituted, under the old rule. That is so except for situations originating and becoming definitive under the previous legislation, which create acquired rights. A right is considered to be acquired when the event giving rise to it occurred before the legislative amendment. However, that is not the case when the event creating the right did not take place under the legislation that has been amended.

   First of all, Article 11(2) of Annex VIII to the Staff Regulations does not preclude the immediate application of the new general implementing provisions.

   Secondly, neither the communication, to an official or other staff member who has submitted an application for a transfer to the EU pension scheme of pension rights acquired under another pension scheme, of a proposal concerning the additional pensionable years to be credited, let alone the mere submission of such an application, alters the legal position of that person or produces binding legal effects. Consequently, the official or other staff member did not have acquired rights capable of being infringed by the application of the new provisions.

   Furthermore, the right of an official or other staff member to have additional pensionable years credited is not fully constituted until the capital representing his rights acquired under another scheme has been transferred to the EU pension scheme.

   In addition, individuals may not rely on the principle of protection of legitimate expectations to challenge the application of a new regulatory provision, particularly in an area where the legislature has a broad discretion.

   (see paras 23-26, 28, 35)

   See:

   Judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 151 to 154 and 170 and the case-law cited therein

2.  In adopting new general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations, which give rise to a difference in treatment between officials who have had the capital sum representing their pension rights acquired under another scheme transferred to the EU scheme before and after the entry into force of those provisions, respectively, an institution does not infringe the principle of equal treatment since the differentiated treatment affects officials who do not form part of a single category.

   Officials in respect of whom the capital sum representing their pension rights acquired under another scheme had not been transferred to the EU pension scheme when the new provisions came into force are not in the same legal situation as officials whose pension rights acquired before their entry into service had already, prior to that date, been transferred, in the form of a capital sum, to the EU pension scheme and in respect of whom a decision crediting additional pension years under the latter scheme had already been adopted. The first set of officials still had pension rights under another scheme while, for the second set, the transfer of the capital sum resulting in the extinguishment of those rights and the corresponding crediting of additional pensionable years under the EU pension scheme had already taken place.

   Such a difference in treatment is, moreover, also based on an objective factor independent of the will of the institution concerned, namely, the speed with which the external pension scheme in question processed the application for the transfer of capital of the person concerned.

   (see para. 36)

   See:

   Judgment of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 177 to 180