Avis juridique important
Judgment of the Court (Second Chamber) of 9 November 1989. - Marilena Bonazzi-Bertottilli and others v Commission of the European Communities. - Officials - Retirement pension - Transfer to the Communities of pension rights acquired previously - Calculation of the actuarial equivalent. - Joined cases 75/88, 146/88 and 147/88.
European Court reports 1989 Page 03599
Summary
Parties
Grounds
Decision on costs
Operative part
++++
Officials - Pensions - Pension rights acquired prior to entering the service of the Communities - Transfer to the Community scheme - Detailed arrangements - Calculation of the actuarial equivalent or sums paid - Matter solely for the institution administering the previous pension scheme - Judicial review - Lack of jurisdiction of the Court
( Staff Regulations, Annex VIII, Art . 11(2 ), second subparagraph )
SummaryWhen an official exercises his right under the second subparagraph of Article 11(2 ) of Annex VIII to the Staff Regulations to transfer to the Community pension scheme pension rights acquired prior to entering the service of the Communities, the institution in which he serves is under no other obligation by virtue of that provision than to convert into years of pensionable service to be credited under its own scheme the amount of the actuarial equivalent calculated by the institution operating the previous pension scheme on the basis of the rights acquired under that scheme . The method of calculating that amount is a matter solely for the national or international authority administering the pension scheme to which the official was affiliated prior to entering the service of the Communities and the Court therefore has no jurisdiction to review it .
PartiesIn Joined Cases 75, 146 and 147/88
1.Marilena Bonazzi-Bertottilli, a member of the temporary staff of the Commission ( Case 75/88 ),
2.Rosanna Casazza-Milan Sporzio, a member of the temporary staff of the Commission ( Case 146/88 ),
3 . Giuseppe Villa, an official of the Commission ( Case 147/88 ),
employed at the Joint Research Centre, Ispra, represented by Mauro Politi, of the Varese Bar, with an address for service in Luxembourg at the Chambers of Tom Loesch, 8 rue Zithe,
applicants,
v
Commission of the European Communities, represented by Sergio Fabro, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre,
defendant,
APPLICATION for the annulment of the decisions by which the Commission quantified the length of service completed by the applicants to be taken into account for the purpose of calculating their Community retirement pensions,
THE COURT ( Second Chamber )
composed of : F . A . Schockweiler, President of Chamber, G . F . Mancini and T . F . O' Higgins, Judges
Advocate General : C . O . Lenz
Registrar : D . Louterman, Principal Administrator
having regard to the Report for the Hearing and further to the hearing on 13 June 1989,
after hearing the Opinion of the Advocate General delivered at the sitting on 5 July 1989,
gives the following
Judgment
Grounds1 By applications lodged at the Court Registry on 9 March and 25 May 1988, Marilena Bonazzi-Bertottilli and Rosanna Casazza-Milan Sporzio, members of the temporary staff of the Commission, and Giuseppe Villa, an official of the Commission, brought proceedings seeking the annulment of the decisions by which the Commission quantified the length of service completed by them to be taken into account for the purpose of calculating their Community retirement pensions .
2 By order of 13 December 1988, Cases 75, 146 and 147/88 were joined for the purposes of the oral procedure and the judgment .
3 Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities ( hereinafter referred to as "the Staff Regulations ") provides that an official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking has the right, on becoming established, to pay to the Communities either the actuarial equivalent of retirement pension rights which he has previously acquired or the sums repaid to him from the pension fund in question . In such a case, the institution in which the official serves must determine, taking into account his grade on establishment, the number of years of pensionable service with which he is to be credited under its own pension scheme in respect of the former period of service, on the basis of the amount of the actuarial equivalent or sums repaid .
4 On 2 March 1978 the Commission concluded an agreement with the Istituto Nazionale della Previdenza Sociale ( hereinafter referred to as "the INPS ") concerning the implementation of Article 11 of Annex VIII to the Staff Regulations, which provided, inter alia, for the transfer to the European Communities of pension rights acquired under the INPS scheme .
5 A notice published in the Staff Courier of 14 June 1978 drew the attention of persons affiliated to the INPS to the fact that under the abovementioned agreement it was now possible for them to transfer their pension rights to the Community scheme provided that they submitted an application to that effect within six months from the date of the notice . That notice set out the provisions of Part ( B)1 and 2 of the agreement, which read :
"1 . The INPS shall calculate the actuarial equivalent of the rights acquired under it until the entry of the insured person into the service of the Communities by reference to the date on which the application for transfer is presented, in accordance with the tables laid down for the application of Article 13 of Law No 1338 of 12 August 1962 in force on that date . In the calculation of that actuarial equivalent, the coefficient used shall be adjusted to allow for administrative costs .
2 . The transfer shall be effected only on confirmation from the person concerned, notified within 90 days from the date on which the INPS has informed the Commission of the amount to be transferred ."
6 A decree of the Italian Minister for Employment and Social Welfare of 19 February 1981 laid down new tables for the application of the Law of 12 August 1962 . The scales set out in that decree are more favourable to the persons concerned than those contained in the Ministerial Decree of 27 January 1964, the instrument which first gave effect to the 1962 law .
7 Mrs Bonazzi and Mrs Casazza, who until 31 October 1976 were affiliated to the Italian social security scheme operated by the INPS and from 1 November 1976 were employed by the Commission as members of its temporary staff, and Mr Villa, who was covered by the INPS until 31 August 1975 and was appointed an official at the Ispra Joint Research Centre on 1 September 1975, each completed a questionnaire with a view to obtaining the transfer to the Community scheme of the pension rights which they had acquired with the INPS, and sent it to the Commission within the prescribed period . On 7 March 1983 and 6 December 1984, the Commission sent those questionnaires to the INPS, which then calculated, pursuant to the Ministerial Decree of 27 January 1964, the actuarial equivalent of the pension rights acquired under the national scheme to which the applicants had previously been affiliated .
8 Once it had been informed of the results of those calculations, the Commission converted the amount into years of pensionable service in accordance with Article 11(2 ) of Annex VIII to the Staff Regulations and sent proposals - to Mrs Bonazzi on 12 May 1987, to Mrs Casazza on 22 July 1987 and to Mr Villa on 24 July 1987 - concerning the number of years of pensionable service to be credited under the Community pension scheme .
9 The applicants accepted those proposals - Mrs Bonazzi on 25 May 1987, Mr Villa on 3 August 1987 and Mrs Casazza on 24 August 1987 . However, all three applicants expressly reserved their rights in respect of the calculation of the actuarial equivalent of their pension rights and, in complaints which they submitted to the Commission, claimed that that calculation should have been effected on the basis of the scales contained in the Italian Decree of 19 February 1981 .
10 The Commission took no action on the applicants' complaints, and they brought the present proceedings .
11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
12 The applicants claim that the contested decisions are unlawful because the Commission misapplied the criteria set out in the agreement concluded with the INPS . The applicants claim that the Commission based its calculation of the number of years of pensionable service to be credited for the purposes of the Community pension on the amount of the actuarial equivalent of the pension rights acquired under the national scheme determined by reference to the scales contained in the Italian Decree of 27 January 1964 instead of the more favourable scales laid down in the Decree of 19 February 1981 .
13 In defence, the Commission maintains that the application of the coefficients provided for under the Italian rules for the calculation of the actuarial equivalent of pension rights is a matter solely for the INPS and that the Commission itself cannot, therefore, be held responsible in that respect .
14 Consequently, it is necessary first to determine whether the dispute concerns a question of Community law over which the Commission had a power of decision and thus whether the subject-matter of the applications falls within the jurisdiction of the Court .
15 For that purpose, it is necessary to examine the responsibilities given to the Commission with regard to the transfer to the Community scheme of previously acquired pension rights .
16 The second subparagraph of Article 11(2 ) of Annex VIII to the Staff Regulations provides : "the institution in which the official serves shall ... determine the number of years of pensionable service with which he shall be credited under its own pension scheme in respect of the former period of service, on the basis of the amount of the actuarial equivalent or sums repaid ...".
17 It is clear from that provision that the Community institution is under no other obligation than to convert into years of pensionable service to be credited under its own scheme the amount of the actuarial equivalent calculated by the institution administering the previous pension scheme on the basis of the rights acquired under that scheme . The method of calculating that amount is a matter solely for the national or international authority administering the pension scheme to which the official was affiliated prior to entering the service of the Communities .
18 The agreement entered into between the Commission and the INPS did not and could not modify that system . The agreement merely implements the arrangements set out in Article 11(2 ) of Annex VIII to the Staff Regulations in so far as it specifies that of the two possibilities provided for in that paragraph - actuarial equivalent or sums repaid - the former is to apply in the case of officials formerly affiliated to the INPS . It explicitly states : "The INPS shall calculate the actuarial equivalent of the rights acquired ...".
19 Although the pension rights under the Community scheme cannot be finally calculated until the Commission has first been notified by the institution to which the official concerned was previously affiliated of the amount of the actuarial equivalent of the rights acquired, the two decisions - one concerning the calculation of the actuarial equivalent of the rights acquired and the other concerning the conversion of that entitlement into years of pensionable service - fall within different legal systems, and each must be dealt with by the courts having jurisdiction under the relevant legal system .
20 In the present case, when calculating the number of years of pensionable service to be credited for the purposes of the Community pension the Commission could only take as its basis the amount of the actuarial equivalent notified by the INPS, and it had, in that regard, no power to contest the method by which that amount had been determined; the Italian courts have exclusive jurisdiction to deal with such a dispute, and it is for the persons concerned alone to bring proceedings before those courts in the manner prescribed under the applicable national law .
21 In those circumstances, it must be held that the Commission had no power to take a decision on the objection raised by the applicants, which concerned the application of Italian law alone .
22 Consequently, the Court has no jurisdiction to rule on the applications, which must therefore be dismissed as inadmissible .
Decision on costsCosts
23 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, Article 70 of those rules provides that institutions are to bear their own costs in proceedings brought by servants of the Communities .
Operative partOn those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Dismisses the applications as inadmissible;
( 2 ) Orders the parties to bear their own costs .
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