ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

26 November 2003

Case T-96/02

Hugh Mc Bryan

v

Commission of the European Communities

‛Officials — Pensions — Transfer of national pension rights — Calculation of the annual contributions to be taken into account — Salary used as reference — Action manifestly devoid of any legal basis’

Full text in French   II-1449

Application for:

annulment of the Commission's decision of 14 May 2001 calculating the annual contributions to be credited for the purpose of transfer to the Community scheme, under Article 11(2) of Annex VIII to the Staff Regulations, of national pension rights acquired by the applicant before his entering the service.

Held:

The action is dismissed as being manifestly devoid of any legal basis. The parties are ordered to bear their own costs.

Summary

  1. Officials — Pensions — Pension rights acquired before entry into the service of the Communities — Transfer to the Community scheme — Crediting of years of pensionable service — Method of calculation — Taking into account of basic salary at the date of establishment as an official — Previous recruitment as a member of the temporary staff — No effect — Limits — Transfer could not be undertaken during period working as a member of the temporary staff

    (Staff Regulations, Annex VIII, Art. 11(2); Commission's general implementing provisions, Art. 4(2) and (3))

  2. Officials — Decision having an adverse effect — Obligation to state reasons — Purpose — Scope — Decision establishing the years of pensionable service to be credited resulting from the transfer of pension rights to the Community scheme

    (Staff Regulations, Art. 25, second para.)

  1.  The Staff Regulations, the Conditions of Employment of Other Servants and the general implementing provisions adopted by the Commission for the application of Article 11(1) and (2) of Annex VIII to the Staff Regulations contain no provisions specifically governing, as regards the transfer of pension rights, the situation of a member of the temporary staff who has subsequently become an official. In the absence of such specific provisions, and if the person concerned is an official at the time when he makes a request to that effect, the transfer of pension rights is governed by the provisions of Article 11 (2) of Annex VIII to the Staff Regulations and by Article 4(2) and (3) of the general implementing provisions, pursuant to which the number of years of pensionable service to be credited is to be calculated by reference to the date of the official's establishment and his grade on establishment.

    It is only in a situation where a member of the temporary staff who has subsequently become an official could not apply for the transfer of his national pension rights because the Member State concerned had not yet adopted the necessary internal measures to allow such a transfer that the calculation of the number of years of service to be credited for the purposes of the retirement pension can be made, once the national measures authorising the aforementioned transfer have been adopted, on the basis of the salary of the person concerned at the time of his entry into service as a member of the temporary staff.

    (see paras 83-84. 90)

    See: 8/85 Bevete v Commission [1986] ECR 1187. para. 11; T-106/01 Youssouroum v Council 120021 ECRSC I-A-93 and II-435. paras 41 and 45

  2.  The purpose of the obligation laid down in the second paragraph of Article 25 of the Staff Regulations to state the reasons on which a decision adversely affecting an official is based is both to permit the Community judicature to review the legality of that decision and to provide the persons concerned with sufficient information to determine whether the decision is well founded or whether it is defective in such a way that its legality may be challenged. The adequacy of the statement of reasons is assessed in the light of the factual and legal context in which the contested measure is adopted.

    Where an application to transfer national pension rights to the Community scheme has been made after establishment by a member of the temporary staff who has become an official, a decision calculating the years of pensionable service to be credited under Article 11(2) of Annex VIII to the Staff Regulations satisfies the requirement to provide a statement of reasons if it explicitly states that the calculation was made on the basis of the date on which the official was established.

    (see paras 113-116)

    See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-350/88 Delacre and Others v Commission [1990] ECR I-395, para. 16; T-117/01 Roman Parra v Commission [2002] ECRSC I-A-27 and II-121, para. 27; T-135/00 Morello v Commission [2002] ECRSC I-A-265 and II-1313, para. 28