ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

6 December 2004

Case T-55/02

Peter Finch

v

Commission of the European Communities

(Officials – Complaint – Implied rejection – Express rejection within the time-limit for appeals – Late notification of rejection – Admissibility – Pensions – Transfer of national pension rights – Calculation of years of service to be taken into account in the Community scheme – Salary taken as basis – Action manifestly unfounded in law)

Full text in French II - 0000

Application:         for annulment of the Commission’s decision concerning the crediting of years of pensionable service to be taken into account in the Community scheme in consequence of the transfer of all the pension rights acquired by the applicant prior to his entry into service with the Communities.

Held:         The action is dismissed as manifestly unfounded in law. The parties are to bear their own costs.

Summary

1.     Officials – Actions – Prior administrative complaint – Express rejection after being rejected by implied decision but before the period for lodging an appeal has expired – Late notification of rejection – Admissibility – Date for calculation of time-limit for bringing of action – Date of notification

(Staff Regulations, Art. 91(3))

2.     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

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

3.     Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme – Method of calculating years of pensionable service credited

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

1.     Under the last sentence of the second indent of Article 91(3) of the Staff Regulations, ‘where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh’. A decision must be regarded as arising within the meaning of this provision at the date on which it is adopted by the competent authority. The competent authority, having adopted an express decision within the period for bringing an appeal, must expect a new period to begin to run in favour of the person concerned without any delay in notification being taken into account.

As regards the date from which the time-limit for bringing an action must be calculated, the date of notification is the criterion in all cases where the delay in notification is not attributable to the person concerned, on the ground that only the notification enables him to have effective knowledge of the existence of the decision and the grounds by which the administration justifies it.

(see paras 46, 48, 50)

See: 5/76 Jänsch v Commission [1976] ECR 1027, paras 5, 9 and 10

2.     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.

(see paras 73-74)

See: 8/85 Bevere v Commission [1986] ECR 1187, para. 11; T‑106/01 Youssouroum v Council [2002] ECR-SC I‑A‑93 and II‑435, para. 41; T‑95/02 Hohenbichler v Commission [2003] ECR-SC I‑A‑301 and II‑1431, paras 50 and 51

3.     When pension rights are transferred, where the years of pensionable service to be credited are calculated in accordance with Article 4(4)(b) of the general provisions adopted by the Commission for the implementation of Article 11(2) of Annex VIII to the Staff Regulations on the transfer to the Community scheme of pension rights acquired before entering the service of the Communities, the total amount of the national pension rights involved in the transfer is converted on the basis of the current rate applicable on the date of the transfer. In that case, the salary and the actuarial value to be taken into account for calculating the years of pensionable service are, respectively, the salary applicable on the date of the transfer for the grade at which the official was established, and the actuarial value corresponding to the official’s age on that same date. Because the rate has been updated to the date of the transfer, there is no need to deduct interest as provided for in Article 4(2) of the general implementing provisions for the period between the date of establishment and that of the transfer, which is intended to compensate the Community institution for the delay in the actual transfer to the Community of the amount of the national pension rights to which the official is entitled on the date when he is established.

(see paras 82-83)

See: T‑303/00, T‑304/00 and T‑322/00 Caballero Montoya and Others v Commission [2003] ECR-SC I‑A‑29 and II‑189, para. 76; Hohenbichler v Commission, cited above, paras 59 and 60