JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

17 November 2009

Case F-57/08

Armida Palazzo

v

Commission of the European Communities

(Civil service – Officials – Pensions – Transfer of pension rights – Rights acquired as member of the local staff – Calculation of credited contribution years)

Application: brought under Articles 236 EC and 152 EA, in which Ms Palazzo essentially seeks annulment of the decision of 24 October 2007 of the Head of the Pensions Unit in the Office for Administration and Payment of Individual Entitlements concerning the calculation of the credited contribution years of Community pension rights resulting from rights she acquired as a member of the local staff.

Held: The action is dismissed. The applicant is to bear her own costs and to pay all those incurred by the Commission. The Council of the European Union, which intervened in support of the Commission, is to bear its own costs.

Summary

1.      Officials – Equal treatment – Different treatment for different categories of staff as regards guarantees under the Staff Regulations and social security benefits – No discrimination

2.      Officials – Pensions – Calculation of years of pensionable service – Taking into account of periods of service completed as a member of the auxiliary staff – Conditions

(Staff Regulations, Annex VIII, Art. 4)

1.      It is not possible to question the differences in status between the various categories of persons employed by the Communities, whether as officials properly so called or in the various categories of staff covered by the Conditions of Employment of Other Servants. Each of those categories is defined in accordance with the legitimate requirements of the Community administration and the nature of the permanent or temporary tasks which it has to perform. The Community legislature was thus at liberty to provide, in Article 4 of Annex VIII to the Staff Regulations, that only officials, members of the temporary staff and members of the contract staff may request that, for the purpose of calculating their pension rights, the whole of their period of service as officials, members of the temporary staff and members of the contract staff within the institutions be taken into account.

Furthermore, a member of the local staff cannot claim to be penalised compared with other categories of staff and thereby suffer unequal treatment or even unjustified and disproportionate discrimination since, as a member of the local staff, he is not in a comparable situation to other categories of staff. The principle of equal treatment cannot be relied on to call into question the differences in status between members of the local staff on the one hand and officials or other staff on the other, since those objective legal differences in terms of the guarantees provided by the Staff Regulations, classification, remuneration and social benefits are of a fundamental nature. The fact that some categories of persons employed by the Communities may enjoy guarantees under the Staff Regulations and social security benefits which are not given to other categories cannot therefore be regarded as discrimination.

(see paras 38-39)

See:

118/82 to 123/82 Celant and Others v Commission [1983] ECR 2995, para. 22

T-415/06 P De Smedt v Commission [2007] ECR-SC I-B-1-0000 and II-B-1-0000, paras 54 and 55 and the case-law cited therein

F‑59/05 De Smedt v Commission [2006] ECR-SC I‑A‑1‑109 and II‑A‑1‑409, para. 76; F-104/06 Arpaillange and Others v Commission [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 61

2.      For periods completed as a member of the auxiliary staff to count the same as periods completed as a member of the temporary staff for the purpose of the Community pension scheme, the post corresponding to the duties carried out by the person concerned must have appeared in the establishment plan of the institution and been available, and the duties carried out must not have been of a transitory nature, i.e. they must have been permanent Community public service duties.

(see paras 44, 48)

See:

17/78 Deshormes v Commission [1979] ECR 189, para. 51; 225/81 and 241/81 Toledano Laredo and Garilli v Commission [1983] ECR 347, paras 7 and 12