JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

13 November 2007

Case F-77/06

Fotini Colovea

v

European Parliament

(Civil service – Officials – Working conditions – Half-time work in preparation for retirement – Transferred pension rights not included in calculation of basic salary for half-time work – Joint decision No 241/05 taken by the Heads of Administration)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Colovea seeks annulment of Parliament’s decision of 20 September 2005, confirmed by the decision of 19 April 2006 rejecting her complaint, not to take into account pension rights transferred to the Community pension scheme when calculating the percentage of the basic salary awarded to her in connection with its approval of her application to work part-time in preparation for retirement.

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

Summary

1.      Officials – Remuneration – Part-time work prior to retirement

(Staff Regulations, Annexes IVa, Art. 4(b), and VIII, Arts 2 to 5, 9, 9a and 11)

2.      Officials – Actions – Prior administrative complaint – Same subject-matter and legal basis

(Staff Regulations, Art. 90(2))

1.      Article 4(b) of Annex IVa to the Staff Regulations, which lays down the methods for calculating the reduced salary paid to an official working part-time in preparation for retirement, contains an exhaustive list of the years of pensionable service to be taken into account for calculating the percentage of his basic salary to which the official concerned is entitled. It provides that years of pensionable service within the meaning of Articles 2 to 5, 9 and 9a of Annex VIII to the Staff Regulations are to be taken into account, but it does not mention Article 11 of Annex VIII to the Staff Regulations. Consequently, years of pensionable service acquired following a transfer of pension rights to the Community pension scheme as authorised in Article 11 are not covered by Article 4(b) of Annex IVa to the Staff Regulations.

That literal interpretation of Article 4(b) of Annex IVa to the Staff Regulations is borne out by two considerations relating to the system of which that provision forms part. First, the provisions laid down in Article 4 of Annex IVa to the Staff Regulations constitute a separate set of rules governing the method for calculating the salary paid to an official working half-time in preparation for retirement, those rules being part of the general rules governing part-time work laid down in Annex IVa to the Staff Regulations. By contrast, the rule laid down in Article 11 of Annex VIII to the Staff Regulations is specific to the pension scheme and cannot be taken as an expression of a general principle requiring work carried out prior to entry into the service of the Communities to be regarded as actual service. Second, neither the context of Article 4 of Annex IVa to the Staff Regulations nor the purpose of the regulations of which it forms part, namely the set of rules governing part-time work, indicates that years prior to entry into the service of the Communities must be taken into account when calculating the percentage of the basic salary awarded to the official concerned in connection with the approval of his application to work part-time in preparation for retirement.

As regards the principle of equal treatment in the treatment of years of pensionable service acquired within an institution compared with years of pensionable service acquired as a result of a transfer of pension rights, a sum of money by which the official contributes to the Community budget and a period of time devoted to the service of the Community institutions are not comparable values. An official who, upon entering the service of the Communities, has transferred to the Community pension scheme capital corresponding to the rights he has acquired under a national scheme is therefore not in a comparable situation to that of an official who entered the service of the Communities earlier, and who has contributed to the Community pension scheme since then through deductions from his salary.

(see paras 35-40, 42)

See:

C-227/04 P Lindorfer v Council [2007] ECR I‑6767, paras. 67 and 68

T-11/02 Pappas v Commission [2004] ECR-SC I‑A‑381 and II‑1773, para. 44

2.      The rule that there must be harmony between a complaint as provided for in Article 90(2) of the Staff Regulations and the action which follows requires that, for a plea to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. That rule is justified by the very aim of the pre-litigation procedure, which is to permit an amicable settlement of the differences which have arisen between officials and the administration. The appointing authority must therefore have been clearly informed of the complaints made by the complainant in order to be in a position to offer him an amicable settlement.

(see para. 46)

See:

58/75 Sergy v Commission [1976] ECR 1139, para. 32; 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 9

T-135/05 Campoli v Commission [2006] ECR SC-I-A-2-297 and II‑A‑2‑1527, para. 32 and the case-law cited therein