JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

16 January 2007

Case F-3/06

Jacques Frankin and Others

v

Commission of the European Communities

(Officials – Obligation on the administration to provide assistance – Refusal – Transfer of pension rights acquired in Belgium)

Application: brought under Articles 236 EC and 152 EA, in which Mr Frankin and 482 other officials and members of the temporary staff seek first, annulment of the Commission’s decision of 10 June 2005 rejecting their requests for assistance, pursuant to Article 24 of the Staff Regulations, and, secondly, damages for the harm they claim to have suffered as a result of that refusal.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

Officials – Pensions – Pension rights acquired before entering the service of the Communities – Transfer to the Community scheme

(Staff Regulations, Art. 24, first para.; Annex VIII, Art. 11(2))

An institution does not infringe its obligation to provide assistance under Article 24 of the Staff Regulations if it rejects a request from an official for its technical and financial assistance in order to ascertain, first, whether it is in his personal interest to apply for a fresh transfer of the pension rights which he acquired under a Belgian pension scheme before entering the service of the Communities, under the generally more favourable conditions provided for in a new law in that Member State, and then to obtain that fresh transfer, if appropriate, when the institution had clearly refused to withdraw the initial decision to transfer those rights. The institution is perfectly entitled to view such a request for assistance as directed against one of its decisions, the transfer being regarded as two successive decisions taken, at the request of the person concerned, by the national body managing the pension scheme, which calculates the rights acquired, and then by the Community institution, which determines, in the light of those rights, how many years’ entitlement should be credited to the Community pension scheme for the rights transferred. Admittedly, the fact that the achievement of the objective for which assistance was requested may require the withdrawal of an act of the institution does not necessarily mean, particularly if the institution is in favour of that withdrawal, that the assistance is being requested against an act of the institution, thereby excluding it from the scope of Article 24 of the Staff Regulations, which provides for officials to be defended against acts of third parties and not against acts of the institution itself. That is the case, however, if the institution has clearly made known its refusal to withdraw the act in question.

Furthermore, in such a context, the official concerned cannot reasonably invoke the institution’s duty to have regard for his welfare against the decision refusing his request, since that duty cannot compel the institution to disregard the conditions to which its assistance is subject under the Staff Regulations. He is also not justified in invoking infringement of the principle pacta sunt servanda, since he does not refer to any contract or agreement which the institution has not observed, or of the rule patere legem quam ipse fecisti, since the Staff Regulations are rules laid down not by an institution as an appointing authority, but by the Community legislature.

Lastly, the plea put forward against the refusal of the request, that the changes to the Belgian legislation have created discrimination between Community officials who have transferred pension rights acquired in Belgium, depending on whether they applied for those rights to be transferred before or after the new legislation came into force, has no bearing on the institution’s refusal to provide assistance. The plea of infringement of the principle of equal treatment would be relevant only if it was alleged that the institution had given its assistance to other officials and servants in the same situation as the applicant.

(see paras 27-34, 38, 46, 60-61)

See:

T-81/96 Apostolidis and Others v Commission [1997] ECR-SC I‑A‑207 and II‑607, para. 90 and the case-law cited therein