JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)
16 January 2007 (*)
(Officials – Pensions – Pension rights acquired before entry into the service of the Communities – Transfer to the Community scheme – Withdrawal of the transfer request in order to rely on new more favourable provisions)
In Case F‑92/05,
ACTION under Articles 236 EC and 152 EA,
Emmanuel Genette, Official of the Commission of the European Communities, residing in Gorze (France), represented by M.‑A. Lucas, avocat,
applicant,
v
Commission of the European Communities, represented by V. Joris and D. Martin, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
Kingdom of Belgium, represented by L. Van den Broeck, Agent, with an address for service in Luxembourg,
intervener,
THE TRIBUNAL (First Chamber)
composed of H. Kreppel, President, H. Tagaras and S. Gervasoni (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure and further to the hearing on 20 September 2006,
gives the following
Judgment
1 By application lodged by fax at the Registry of the Court of First Instance of the European Communities on 26 September 2005 (the original arriving on 28 September following), Mr Genette applies in particular for annulment of the Decision of the Commission of the European Communities of 25 January 2005 refusing first to allow him to withdraw the request to transfer his pension rights acquired in Belgian pension schemes, which he submitted in 2001, and secondly to allow him to request a new transfer of those rights.
Legal context
2 Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities (the ‘Staff Regulations’), in the version prior to the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending those Staff Regulations (OJ 2004 L 124, p. 1), (the ‘Regulation of 22 March 2004’), provided that:
‘An official who enters the service of the Communities after:
– leaving the service of a government administration or of a national or international organisation; or
– pursuing an activity in an employed or self-employed capacity;
shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat-rate redemption value of retirement pension rights acquired by virtue of such service or activities.
In such case the institution in which the official serves shall, taking into account his grade on establishment, 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 as aforesaid.’
3 Article 11(2) of Annex VIII to the Staff Regulations, in the version resulting from the Regulation of 22 March 2004, which under Article 2 thereof came into force on 1 May 2004, now 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 organisation; or
– pursuing an activity in an employed or self-employed capacity;
shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Communities the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.
In such case the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Community pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.
Officials may make use of this arrangement once only for each Member State and pension fund concerned.’
4 In accordance with Article 107a of the Staff Regulations, which was introduced by the Regulation of 22 March 2004, ‘transitional measures’ are set out in Annex XIII to the Staff Regulations. Under Article 26(3) of that Annex:
‘Officials who submitted a request for transfer within the time-limits but rejected the offer made to them, who did not submit a transfer request within the time-limits previously stipulated, or whose request was rejected for having been submitted after those time-limits, may still submit or resubmit such a request by 31 October 2004 at the latest’.
5 Article 3 of the Belgian law of 21 May 1991 establishing certain relations between the Belgian pension schemes and those of institutions governed by public international law, published in the Moniteur Belge of 20 June 1991, p. 13871 (the ‘law of 1991’), laid down that ‘any civil servant may, with the agreement of the competent institution, request that the amount of retirement pension relating to service and periods prior to the date on which he joined the institution should be paid to that institution’. Since the official had requested the transfer of his pension rights acquired in a Belgian pension scheme and that request had been accepted, the Community institution was subrogated to the official’s rights, pursuant to Article 11 of that law. In the light of the subrogation mechanism established in this way, the Belgian pension scheme made no payment to the institution before the date on which the official concerned obtained a Community pension. Article 9 of the law of 1991 laid down that ‘as long as the subrogation provided for in Article 11 has not taken effect, the official may, with the agreement of the institution, withdraw his transfer request. Such withdrawal is final.’
6 The Belgian law of 10 February 2003 governing the transfer of pension rights between Belgian pension schemes and those of institutions governed by public international law, published in the Moniteur Belge of 27 March 2003, p. 14747 (the ‘law of 2003’), amended Belgian legislation on the transfer of pension rights acquired in Belgian schemes to the Communities. The law, which pursuant to Article 29 thereof is applicable to transfer requests submitted on or after 1 January 2002, establishes a system for the payment of the flat-rate redemption value of contributions paid into a Belgian pension scheme plus compound interest. Article 4 thereof provides that ‘[a]n official or temporary servant who, having acquired rights to one or more pensions referred to in subparagraphs 1 to 4 of Article 3(1), has entered the service of an institution may, with the agreement of the latter, request that the amounts determined in accordance with Article 7 be transferred to that institution or to its pension fund in respect of his membership of those pension schemes for the period before his entry into the service of the institution. …’. Under this new legislation, the transfer of pension rights gives rise to the immediate payment of a capital sum to the Community scheme. Article 9(1) of the law of 2003 lays down that ‘[t]he transfer request shall become irrevocable on the date on which the [National Pension] Office receives from the institution final confirmation of the transfer request submitted by the official or temporary servant’.
7 The Belgian law of 20 July 2006 containing various provisions, published in the Moniteur Belge of 28 July 2006, p. 36940 (the ‘law of 2006’), amended Article 9 of the law of 1991 with retroactive effect as from 1 May 2004. That article now provides that ‘as long as the subrogation provided for in Article 11 has not taken effect, an official leaving the institution without being able to receive a retirement pension may, with the agreement of the institution, withdraw his transfer request. Such withdrawal is final’.
Facts
8 Before entering the service of the Commission on 1 April 2000, in grade B 5, step 3, the applicant, who was born in 1968, worked in the private sector in Belgium as a self-employed worker from 1992 to 1996 and then as an employee from 1996 to 2000.
9 In those capacities, he was first affiliated to the Institut National d’Assurance Sociale des Travailleurs Indépendants (National Social Security Institute for Self-employed Workers) (‘INASTI’) and then to the Office National des Pensions (National Pension Office) (‘ONP’), paying contributions to their pension schemes and therefore acquiring pension rights with these bodies.
10 After his establishment as a Community official on 1 January 2001, the applicant requested, in a letter to the Commission dated 13 July 2001, that the rights he had acquired in the Belgian schemes for self-employed and salaried workers be transferred to the Community pension scheme. That request was based on Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect, and on Article 3 of the law of 1991.
11 On 11 June 2002 the unit dealing with ‘Pensions and relations with former officials’ of Directorate B of the Directorate-General (DG) for Personnel and Administration at the Commission sent the applicant a note indicating the number of additional years of pensionable service that would be credited to him under the Community scheme on the basis of the actuarial equivalent, calculated by the Commission, of the national pension acquired in the Belgian scheme for self-employed workers. If the applicant retired at the age of 65, the actuarial equivalent of the pension of EUR 1 431.29 per year calculated by the INASTI would amount to EUR 8 139.33 and the seniority allowance to be taken into account in the Community scheme would be 1 year and 19 days. The Commission also informed him that pursuant to Article 11 of the law of 1991 it would be subrogated to his pension rights acquired in Belgium when his Community pension became payable.
12 On 26 August 2002 the same department sent the applicant a similar note concerning the pension rights he had acquired as a salaried employee and informing him that, at age 65, the actuarial equivalent of the pension of EUR 1 952.48 per year calculated by the ONP would amount to EUR 11 102.79 and that the corresponding seniority allowance in the Community scheme would be one year, five months and five days.
13 In these notes the applicant was informed that, once his agreement to the proposals they contained was received, his transfer request could no longer be rescinded. However, the notes stated that in exceptional circumstances the request could be rescinded if his employment with the Commission ended before he met the conditions for receipt of a Community pension under Article 77 of the Staff Regulations.
14 On 17 July and 29 August 2002 the applicant notified his agreement to the Commission’s proposals of 11 June and 26 August 2002 respectively.
15 As stated in paragraph 6 above, the law of 2003 amended the terms for requests made on or after 1 January 2002 for the transfer of rights acquired under Belgian pension schemes to the Communities.
16 Shortly before October 2004 the applicant learnt that a person of his acquaintance, who had entered the service of the Commission in 2003 and who, like him, had applied under the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force to transfer to the Community scheme the pension rights he had acquired in the Belgian scheme for salaried employees, had had transferred by Belgium a capital sum corresponding to years of affiliation and salary comparable to his own, which had given rise to the crediting of a much larger number of additional years of pensionable service to the Community scheme than that to which he himself was entitled.
17 On 31 October 2004 the applicant submitted to the Commission, under Article 90(1) of the Staff Regulations, a request that the Commission:
– decide to allow him, in accordance with Article 9 of the law of 1991, to withdraw the request he had made on 13 July 2001 on the basis of that law for the pension rights he had acquired in the Belgian pension schemes for self-employed and salaried workers to be transferred to the Community scheme;
– decide to allow him, in accordance with Article 4(1) of the law of 2003, to request the transfer of his pension rights on the basis of that law.
18 On 2 February 2005 the applicant was notified of a decision of 25 January 2005 taken by the Head of the ‘Pensions’ unit refusing his request of 31 October 2004 (the ‘contested decision’) in the following terms:
19 ‘… You wish … to be permitted first to withdraw the request under Article 11(2) of Annex VIII [to the Staff Regulations] to transfer your pension rights acquired under the Belgian INASTI and ONP schemes, which has already been actioned by the schemes in accordance with the provisions of the law of 1991, and secondly to submit a new request to be actioned by the schemes in question in accordance with the provisions of the law of 2003.
20 The proposals sent to you by the administration of the Commission on 11 June 2002 and 26 August 2002 after the INASTI and the ONP had notified the amount of transferable pension stated clearly that the transfer would become irrevocable once the department concerned received your agreement to the proposals. As a result of your acceptance, the transfer of your rights has been actioned and the ONP and INASTI files have been closed definitively by the [appointing authority].
21 Although the law of 1991 provides for the possibility ‘with the agreement of the institution, [to] withdraw [the] transfer request’ (Article 9 of the law of 1991), in practice that possibility was available at the level of the [i]nstitutions only in exceptional cases, which moreover were indicated in the proposal sent to the person concerned: “In exceptional circumstances the request may be withdrawn if the employment of the person concerned ceases before the conditions for receiving a Community pension under Article 77 of the Staff Regulations are met”. Here it is not a matter in any way of the possibility of withdrawing the request, but of annulling the operation in a very specific case.
22 Moreover, in its judgment of 9 November 1989 in Joined Cases 75/88, 146/88 and 147/88, the Court of Justice of the European Communities clearly established the distinction between two different legal systems into which the decisions concerning on the one hand the calculation of the transferable amount and on the other the conversion of that entitlement into years of pensionable service fall and which must each be dealt with by the courts having jurisdiction under the relevant legal system. Consequently, a theoretical possibility to withdraw the transfer request provided for by the Belgian law has no effect since Community rules make no provision for it. That is the case here.
23 In these circumstances, it is impossible for me to permit you to withdraw the request that has already been closed and to submit a new request relating to a transfer that has been duly finalised.’
24 On 22 April 2005 the applicant, via his adviser, lodged a complaint with the Commission against the contested decision on the basis of Article 90(2) of the Staff Regulations.
25 On 10 June 2005 the Director-General of the Personnel and Administration DG adopted, in his capacity as appointing authority, a decision ‘in response to the requests and complaints of many officials concerning the transfer of pension rights from the Belgian scheme to the Community scheme’, which was notified to the applicant by e-mail and fax on 14 June 2005 (the ‘decision of 10 June 2005’).
Procedure and forms of order sought by the parties
26 This action was initially lodged at the Registry of the Court of First Instance under number T‑361/05.
27 By order of 15 December 2005, pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7), the Court of First Instance referred the present case to the Tribunal. The application was recorded at the Registry of the latter under number F‑92/05.
28 By an application received at the Registry of the Tribunal on 8 May 2006, the Kingdom of Belgium applied to intervene in the proceedings in support of the defendant. Under Articles 115(1) and 116(6) of the Rules of Procedure of the Court of First Instance, which apply mutatis mutandis to the Tribunal pursuant to Article 3(4) of Decision 2004/752 until the rules of procedure of the latter enter into force, the President of the First Chamber of the Tribunal allowed that intervention at the hearing, by Order of 29 June 2006. The report for the hearing was communicated to the Kingdom of Belgium.
29 In the framework of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court of First Instance, the Tribunal asked the Commission to forward to it the general implementing provisions (the ‘GIP’) for Article 11(2) of Annex VIII to the Staff Regulations that were applicable at the time of the transfer of the applicant’s pension rights and those currently in force, adopted by the institution in 1993 and 2004 respectively, and asked the parties and the intervener to reply to written questions. These requests were met.
30 The applicant claims that the Tribunal should:
– annul the contested decision;
– annul the decision of 10 June 2005;
– order the defendant to pay the costs of the case.
31 The Commission claims that the Tribunal should:
– declare the action inadmissible;
– in the alternative, dismiss the action as unfounded;
– make an appropriate order as to costs.
32 The Kingdom of Belgium claims, in support of the Commission, that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs of the case.
Law
The admissibility of the application
Arguments of the parties
33 The Commission raises a plea of inadmissibility on the ground that the application was submitted after expiry of the period laid down in Article 91(3) of the Staff Regulations. It claims that the applicant was mistaken in considering that the period for contesting the decision of 10 June 2005 did not begin until 18 August 2005, on which date the appointing authority only confirmed to him by letter that his complaint had been rejected. Consequently, according to the Commission, the application had been submitted late and should therefore be dismissed as inadmissible.
Findings of the Tribunal
34 On 22 April 2005 the applicant submitted a complaint against the contested decision. The appointing authority dismissed that complaint in the decision of 10 June 2005, which it notified to the person concerned on 14 June 2005 by e-mail and fax. In its letter of 18 August 2005 the appointing authority merely confirmed that in its decision of 10 June 2005 it had replied – ‘in [its] opinion, fully’ – to the applicant’s complaint. Consequently, the Commission rightly states that the period of three months during which an appeal could be brought against the decision of 25 January 2005 under Article 91(3) of the Staff Regulations had begun to run on the date on which rejection of the complaint was notified, that is to say on 14 June 2005.
35 The period of three months therefore expired on 14 September 2005. However, taking into account the extension of 10 days on account of distance provided for in Article 102(2) of the Rules of Procedure of the Court of First Instance, the period for bringing an appeal should, in the present case, have expired at midnight on 24 September 2005.
36 However, the first subparagraph of Article 101(2) of those Rules of Procedure lays down that ‘[i]f the period would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day’. Since 24 September 2005 was a Saturday, under the provisions cited above, the period for bringing an appeal was therefore extended, in the present case, to Monday, 26 September 2005 inclusive.
37 Consequently, the present application, dated 26 September 2005 and sent by fax on that day to the Registry of the Court of First Instance, was submitted within the period for lodging appeals. It follows that the plea of inadmissibility on the ground that the application was out of time must be dismissed.
Claims for annulment of the decision of 10 June 2005
38 It is settled case-law that claims directed against the rejection of a complaint have the effect of bringing before the Court the act against which the complaint was submitted and as such have no content of their own (judgment in Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8). It must therefore be considered that the abovementioned claims, which are directed against the rejection of the complaint dated 10 June 2005, seek solely the annulment of the contested decision (see, to that effect, the judgment in Case T‑310/02 Theodorakis v Council ECR‑SC I‑A‑95 and II‑427, paragraph 19).
The claims directed against the contested decision in so far as it refuses to allow the applicant to withdraw his request to transfer to the Community scheme his pension rights acquired in Belgian pension schemes for self-employed and employed workers
1. Interpretation of the claims
– Arguments of the parties
39 The Commission considers that in reality the applicant is contesting the decisions of 11 June and 26 August 2002, in which it set the number of years of pensionable service that would be credited to him in the Community scheme in respect of the pension rights he had acquired in the Belgian schemes for self-employed and employed workers respectively.
40 The applicant maintains that although his objective is to have the Commission withdraw its decisions of 11 June and 26 August 2002 and replace them with new decisions, the purpose of his application is not to obtain the withdrawal of these decisions but to require the Commission to permit him to withdraw the request he made in 2002 to transfer his pension rights acquired in the Belgian schemes.
41 According to the applicant, the decisions of 11 June and 26 August 2002 would remain in existence as they were even if the Commission granted his request, and the Commission would be led to amend those decisions only if a series of additional conditions were satisfied. Such an outcome would be achieved only if the Belgian authorities, possibly as a result of an action brought in the Belgian courts, first accepted the withdrawal of the transfer request submitted by the applicant on 13 July 2001 under the law of 1991, secondly accepted the submission of a fresh transfer request on the basis of the law of 2003 and finally took new decisions as to the sums to transfer to the Community pension scheme, which the Commission would have to take into account, pursuant to Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from the Regulation of 22 March 2004, in order to amend its decisions on the number of additional years of pensionable service to award the applicant in the Community scheme.
– Findings of the Tribunal
42 The question raised by the interpretation of the abovementioned claims is whether the applicant’s request to be allowed to withdraw his request to transfer his pension rights is separate from a request to withdraw the decisions setting the number of years credited in the Community pension scheme for the pension rights acquired previously.
43 It is necessary first to recall the conditions that must be met in order to obtain the transfer of pension rights to the Community pension scheme.
44 It can be seen from the judgment in Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 13, that the arrangement granted to officials – under Article 11(2) of Annex VIII to the version of the Staff Regulations applying before the Regulation of 22 March 2004 came into force – to transfer to the Community pension scheme, at the time of establishment, the actuarial equivalent or the flat-rate redemption value of pension rights acquired in the course of previous employment by a government administration, a national or international organisation or an undertaking is intended to confer upon them a right which they may freely exercise.
45 Since the request submitted under Article 11(2) of Annex VIII to the Staff Regulations, both in the version prior to the entry into force of the Regulation of 22 March 2004 and in the version resulting from that regulation, meets the conditions set out in that provision, the body managing the pension scheme with which the official previously acquired pension rights and then the Community institution are required, in the case of the former, to calculate the rights acquired and, in that of the latter, to determine, on the basis of those rights, the number of years of service it will credit in the Community pension scheme for the period of prior service.
46 The transfer of pension rights is therefore an operation entailing two successive unilateral decisions taken at the request of the person concerned and in the exercise of limited discretion, first by the body managing the national pension scheme and secondly by the Community institution.
47 Consequently, the conditions in which the transfer of pension rights acquired in the Belgian schemes in question may be rescinded are those in which the withdrawal of the abovementioned decisions constituting the transfer operation may be obtained.
48 The law of 1991, under which the applicant submitted, on 13 July 2001, a request to transfer his pension rights acquired in Belgian schemes, provides for a mechanism under which the Community institution is subrogated to the pension rights acquired in Belgium as from the date on which eligibility for a Community pension commences. Article 9 thereof lays down that ‘as long as the subrogation provided for in Article 11 has not taken effect, the official may, with the agreement of the institution, withdraw his transfer request. Such withdrawal is final.’
49 The wording of the abovementioned provisions of the law of 1991 explains why the applicant asked the Commission to be allowed to withdraw his transfer request. Since these provisions lay down that, until subrogation takes effect, the person concerned is entitled to request withdrawal of the decisions regarding the transfer taken by the bodies managing the Belgian pension schemes, the transfer of the rights is entirely rescinded if the decision of the institution determining the corresponding credit in terms of years of service to the Community scheme is also withdrawn. Consequently, the ‘agreement of the institution’ referred to in the abovementioned provisions of the law of 1991 can refer only to withdrawal of the decision taken by the institution at the time of the transfer of the pension rights.
50 It follows that, as the Commission maintains, the abovementioned claims must be interpreted as seeking the annulment of the Commission’s refusal to withdraw the decisions of 11 June and 26 August 2002 that it had taken at the time of the transfer, to the Community scheme, of the pension rights acquired by the person concerned in two Belgian pension schemes.
2. The admissibility of the claims
– Arguments of the parties
51 The Commission claims that its decisions of 11 June and 26 August 2002 are definitive and consequently are no longer open to challenge.
52 According to the Commission, the applicant is wrong to maintain that these two decisions are provisional on the ground that, under Article 11(1) of the law of 1991, the credit finally used by the institution for calculating his pension depends on the age at the time of first drawing the pension and the consumer price index at that date. In the view of the Commission, the decisions of 11 June and 26 August 2002 are well and truly definitive in that they give effect to the applicant’s agreement to the Commission proposals on the transfer of his pension rights and the calculations annexed thereto. The fact that the credit to be taken into account for the actual calculation of his pension can clearly only be determined at the age at which, in practice, the person concerned retires has, in the view of the Commission, no effect in this regard.
53 The Commission maintains that as the applicant had expressly agreed to the Commission proposals, that agreement made them definitive.
54 According to the Commission, a definitive decision could be challenged only if a new substantial fact arose, provided that the person concerned relied on that fact within a reasonable period. Even supposing that the entry into force of the law of 2003, which was published in the Moniteur Belge on 27 March 2003, can be regarded as a new fact within the meaning of the case-law, the applicant’s request, dated 31 October 2004, was, according to the Commission, submitted well after such a reasonable period had expired. The applicant’s subjective finding that there were differences of treatment between officials as a result of the entry into force of the law of 2003 does not, in the opinion of the Commission, constitute a new fact distinct from the entry into force of that law.
– Findings of the Tribunal
55 It is apparent from the facts set out in paragraphs 45 to 47 above that the letters dated 11 June and 26 August 2002 cannot be regarded as proposals for an agreement or contract addressed to the applicant by the Commission. They constitute draft unilateral decisions formulated by the Commission in the exercise of a limited discretion at the request of the official, which in practical terms do not become decisions of the institution and which enter into effect only following confirmation of the transfer requests by the person concerned. In the case in point, the applicant confirmed his requests on 17 July and 29 August 2002. The atypical manner in which these acts are formulated and enter into force, subject to the agreement of the person concerned, does not alter their unilateral nature. Since they are unilateral decisions, they cannot be rendered definitive by the express agreement of the applicant, which consequently cannot be relied on against him. It is not the applicant’s agreement to the Commission proposals that rendered the decisions of 11 June and 26 August 2002 definitive.
56 The unilateral decisions of the institutions regarding officials become definitive and thus immune to judicial challenge as a result of the expiry of the periods for lodging complaints and appeals laid down in Articles 90 and 91 of the Staff Regulations. The applicant did not question the decisions of 11 June and 26 August 2002 until he submitted a request to the Commission on 31 October 2004, after those periods had expired.
57 The applicant cannot validly maintain that these decisions, which admittedly do not determine all the factors permitting a final calculation to be made of the pension rights to be credited, are only indicative or provisional and that the expiry of the periods for lodging an appeal could consequently not render them definitive. In fact, their purpose and effect was to determine the terms for crediting, to the Community pension scheme, the rights acquired by the applicant in Belgium, in the light of the factors already known.
58 It follows from the foregoing that, in so far as the information they contain is concerned, the decisions of 11 June and 26 August 2002 became definitive as a result of the expiry of the periods for lodging appeals against them.
59 According to Community case-law, the time-limits prescribed in Articles 90 and 91 of the Staff Regulations, being designed to ensure legal certainty, are a matter of public policy and are binding on the parties and the Court. An official cannot therefore, by submitting to the appointing authority a request within the meaning of Article 90(1) of the Staff Regulations, revive to his advantage a right of appeal against a decision which became final upon expiry of the abovementioned time-limits (Case T‑495/93 Carrer and Others v Court of Justice [1994] ECR‑SC I‑A‑201 and II‑651, paragraph 20, and Case T‑42/97 Lebedef v Commission [1998] ECR‑SC I‑A‑371 and II‑1071, paragraph 25).
60 However, the existence of new substantial facts may justify the submission of a request for a review of such a decision (see, in particular, Case 231/84 Valentini v Commission [1985] ECR 3027, paragraph 14).
61 According to the requirements of case-law, the fact concerned must be capable of substantially altering the situation of the person seeking review of a decision which has become definitive (see, to that effect, Case 232/85 Becker v Commission [1986] ECR 3401, paragraph 10, and Case T‑186/98 Inpesca v Commission [2001] ECR II‑557, paragraph 51).
62 Moreover, in order to rely upon a new substantial fact, the official must submit his administrative request within a reasonable time. The official’s interest in seeking the adaptation of his administrative situation to a new rule must be weighed against the essential requirement of legal certainty (order of the Court of First Instance of 25 March 1998 in Case T‑202/97 Koopman v Commission [1998] ECR‑SC I‑A‑163 and II‑511, paragraph 24; see also, to that effect, Case T‑192/99 Dunnett and Others v EIB [2001] ECR II‑813, paragraph 52).
63 It is therefore necessary first to examine whether the information adduced by the applicant in support of his pleas constitutes a new substantial fact justifying review of the decisions of 11 June and 26 August 2002, and secondly to assess whether the request for review of those decisions was submitted within a reasonable time.
The existence of a new substantial fact
64 In the case at issue, the entry into force of the law of 2003 with retroactive effect from 1 January 2002 overturned the conditions for the transfer of pension rights acquired in Belgian pension schemes to the scheme of the European Communities.
65 The law of 1991, which applied to transfer requests submitted up to 31 December 2001, was based on a mechanism in which the institution was subrogated to the pension rights acquired by the person concerned in the Belgian pension schemes; that subrogation did not take effect until payment of the pension commenced. Subrogation did not entail the payment to the Community pension scheme of a capital sum representing the pension rights the official had previously acquired in Belgium. When the official became eligible for a Community pension, the pension rights he had acquired in Belgium were paid to the Communities in monthly instalments by the competent Belgian bodies, in the same way as they would have been paid to the official in the absence of subrogation.
66 The law of 2003 established an entirely different transfer mechanism. First, the transfer of pension rights acquired in Belgium now takes place immediately by means of the payment of a capital sum to the Community scheme. The law of 2003 then replaces the sui generis subrogation mechanism, which was specific to Belgium, with a transfer mechanism in accordance with the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force, that is to say the transfer of a flat-rate redemption value. Finally, the method of calculating the transferred rights was amended. Whereas subrogation was based on calculation of the actuarial equivalent of the amount of the pension rights, the transfer of the flat-rate redemption value consists in payment to the Community pension scheme of the contributions paid to the Belgian pension schemes, plus compound interest.
67 In this connection, the parties agree that the change in Belgian legislation generally leads to an increase in the transferable amount of pension rights for a given person by comparison with the amount resulting from a calculation made in accordance with the law of 1991. It is true that the Belgian Government mentioned, in its replies to the written questions from the Tribunal, particular circumstances in which the conditions laid down by the law of 2003 would be less favourable than those foreseen under the law of 1991, but these reservations are not sufficient to call into question the more advantageous nature of the new Belgian legislation in a large number of cases, and especially in that of the applicant. At the hearing the applicant maintained, without being contradicted, that the amount of his transferable rights acquired in Belgium would be around 300% higher in the event of a new transfer on the conditions of the law of 2003.
68 Although the law of 2003 overturned the conditions for transferring pension rights acquired in Belgium to the Community scheme, the Belgian Government nevertheless maintained in its written replies to the questions from the Tribunal that that law, which is applicable only to transfer requests submitted on or after 1 January 2002, did not in any way alter the legal situation of Community officials and servants who, like the applicant, had requested the transfer of their rights before that date and that the law could therefore not be considered to be a new fact on which such officials and servants could rely.
69 However, according to case-law, in particular the judgments in Case 9/81 Williams v Court of Auditors [1982] ECR 3301, paragraph 14, and Case C‑389/98 P Gevaert v Commission [2001] ECR I‑65, paragraph 49, which were delivered by the Court with regard to general decisions altering the criteria for the classification of staff, the adoption of a new rule constitutes a new substantial fact, which also affects officials not falling within its field of application if that rule entails unjustified inequalities of treatment between the latter and the persons benefiting from the new rule.
70 Such a new fact arises for the applicant from the subsequent entry into force of the law of 2003 and Article 26(3) of Annex XIII to the Staff Regulations.
71 Under the transitional measures provided for in the Staff Regulations, Article 26(3) of Annex XIII thereto granted three categories of officials the right to submit a transfer request or a new transfer request within six months of the entry into force of the Staff Regulations: those categories comprised officials who had submitted a transfer request within the time-limits previously stipulated but had rejected the offer made to them, officials who had not submitted a transfer request within the time‑limits previously stipulated, and those whose request had been rejected for having been submitted after those time-limits.
72 These provisions enable officials who could have benefited only from the terms of the law of 1991 if they had obtained the transfer of their rights at the time of establishment in accordance with Article 11(2) of Annex VIII to the version of the Staff Regulations applying before the entry into force of the Regulation of 22 March 2004 to benefit from the more generous terms of the law of 2003. Hence, as far as the terms for the transfer of their pension rights are concerned, officials who acquired pension rights in Belgium and entered the service of the Communities at the same time are treated differently, on the ground that one group has obtained the transfer of their pension rights and the other has not.
73 First, the situation of the applicant is essentially no different in this regard from that of the officials referred to in Article 26(3) of Annex XIII to the Staff Regulations. Although the subrogation mechanism provided for under the law of 1991 was applied to the applicant, he was comparable to the three categories of officials mentioned above in that he did not obtain the transfer of his pension rights in accordance with Article 11(2) of Annex VIII to the version of the Staff Regulations applying before the entry into force of the Regulation of 22 March 2004, as none of the procedures specifically stipulated in that provision were implemented.
74 In both their current and previous wording, these provisions grant the official the right to have the capital representing the pension rights he acquired previously in other pension schemes paid to the Community scheme. As stated in paragraph 66 above, the subrogation mechanism established by the law of 1991 did not provide for the payment of that capital. It is the law of 2003 that for the first time allowed officials who had acquired pension rights in Belgium to exercise the right granted to them by the Staff Regulations on the conditions set out in Article 11(2) of Annex VIII to the Staff Regulations, both in the version predating the entry into force of the Regulation of 22 March 2004 and in that resulting from that regulation.
75 Hence, at the date on which he requested the transfer of his pension rights, all that the applicant had been able to obtain, under the law of 1991 then applicable, was that the Commission be subrogated to his pension rights acquired in Belgium. The very wording of the decisions of 11 June and 26 August 2002 indicates that the Commission treated his transfer request in accordance with the subrogation mechanism of the law of 1991, and not in accordance with the transfer procedure set out in Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force.
76 It is clear from the very wording of Article 26(3) of Annex XIII to the Staff Regulations that these provisions were enacted precisely in order to permit officials who had not yet obtained the transfer of their pension rights on the conditions laid down in Article 11(2) of Annex VIII to the version of the Staff Regulations applying before the entry into force of the Regulation of 22 March 2004 to apply to benefit from those new provisions. Consequently, as far as the objective of Article 26(3) of Annex XIII to the Staff Regulations is concerned, the applicant is in a situation comparable to that of the three categories of officials referred to in that article.
77 Since the applicant was also unable to benefit from the right provided for in the Staff Regulations on the conditions stipulated in Article 11(2) of Annex VIII to those regulations, it is legitimate to ask whether he does not come within the scope of Article 26(3) of Annex XIII to the Staff Regulations. An interpretation of Article 26(3) of Annex XIII to the Staff Regulations that excludes the applicant from its field of application is likely to create, for transfers of pension rights acquired in Belgium, an unjustified difference of treatment as regards Article 11(2) of Annex VIII to the Staff Regulations.
78 Secondly, that difference of treatment is difficult to justify, particularly where, as in the third case in Article 26(3) of Annex XIII to the Staff Regulations, it has not been possible to obtain the transfer of pension rights because of the late submission of the request, in other words as a result of the negligence of the person making the request. As the Commission’s representative at the hearing admitted, an official established on the same day as the applicant and who, being less diligent than he, submitted his transfer request after the time-limit on the basis of the law of 1991, would, unlike the applicant, have a further chance to transfer on the more generous terms of the law of 2003. Similarly, the purpose and effect of Article 26(3) of Annex XIII to the Staff Regulations are to enable officials who had received a final refusal of their transfer request on the basis of Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force (see, in this regard, the judgment in Case T‑27/99 Drabbe v Commission [2000] ECR‑SC I‑A‑213 and II‑955) to submit a new request based on the amended provisions of Article 11(2), whereas the applicant’s case has, to date, never been examined on the basis of the procedures laid down in Article 11(2) of Annex VIII to the version of the Staff Regulations applicable either before or after 1 May 2004.
79 Thirdly, it can hardly be considered that a decision by the officials concerned to submit or not to submit a transfer request at the time of establishment justifies a difference in treatment that arises subsequently, and is therefore unforeseeable when they make their decision.
80 In fact, Article 26(3) of Annex XIII to the Staff Regulations altered the situation of officials who had decided not to request transfer or not to confirm their request in two ways, by affecting the consequences of such decisions. First, the article allows such officials to reverse a decision taken at the time of establishment, the definitive nature of which stemmed from Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect (see the judgment in Drabbe v Commission, cited above). Secondly, Article 26(3) of Annex XIII to the Staff Regulations expressly confined to these same officials the possibility of obtaining the transfer of their pension rights acquired in Belgium on the more favourable conditions of the law of 2003.
81 Hence, by substantially altering the legal consequences of one of the two options made available to officials at the time of their establishment under Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect, that is to say the option not to benefit from a transfer, the combined provisions of the law of 2003 and Article 26(3) of Annex XIII to the Staff Regulations necessarily altered the very conditions of that decision.
82 Moreover, that alteration took effect retroactively, and was therefore unforeseeable for officials who had previously decided to request the transfer of their pension rights. Hence, when he decided to request the transfer of his pension rights, the applicant could not know that subsequent provisions of the Staff Regulations would revoke the definitive nature of the absence of a transfer nor, what is more, that they would enable officials who had not had their pension rights acquired in Belgium transferred to obtain that transfer on more favourable terms.
83 The principles of legal certainty and of the protection of legitimate expectations identified by the Community courts require that Community law be certain and its application foreseeable for individuals (Case C‑63/93 Duff and Others v Minister for Agriculture and Food and Attorney General [1996] ECR I‑569, paragraph 20; Case C‑107/97 Rombi and Arkopharma [2000] ECR I‑3367, paragraph 66; and Case T‑182/96 Partex v Commission [1999] ECR II‑2673, paragraph 191). These principles prevent an official from being excluded from benefiting from more favourable legislation on the basis of a decision, the consequences of which were not foreseeable when it was taken.
84 In the light of the principle of the protection of legitimate expectations, the considerations set out in the five preceding paragraphs cast doubt on the legality of the difference of treatment resulting from Article 26(3) of Annex XIII to the Staff Regulations as between the applicant and the categories of officials to which that provision relates.
85 It follows from all of the foregoing that the subsequent entry into force of the law of 2003 and Article 26(3) of Annex XIII to the Staff Regulations altered the applicant’s legal situation with regard to the transfer of his pension rights acquired in Belgium and thus constitutes a new substantial fact justifying review of the decisions of 11 June and 26 August 2002.
86 Moreover, in its staff notice published in No 357 of ‘Commission en direct’ for the week from 11 to 17 March 2005, the Commission itself had foreseen that, as a result of the entry into force of the law of 2003, the Belgian authorities would decide to review the calculation of the amount of pension rights of officials who had requested the transfer of such rights under the law of 1991 and it had indicated that, in that case, all the files would automatically be reviewed.
The reasonableness of the period for submitting the request
87 The defendant claims that the request to review the decisions of 11 June and 26 August 2002 was not submitted within a reasonable time of the publication of the law of 2003.
88 However, it has already been stated that the new substantial fact justifying a request to review the decisions of 11 June and 26 August 2002 stemmed from the successive entry into force of the law of 2003 and Article 26(3) of Annex XIII to the Staff Regulations. Consequently, the reasonable period during which the applicant was justified in relying on that new fact did not begin to run until the Staff Regulations came into effect, that is to say on 1 May 2004.
89 It is nevertheless necessary to examine whether, by submitting his request for review of the decisions of 11 June and 26 August 2002 on 31 October 2004, that is to say exactly six months after the entry into force of the Staff Regulations, the applicant did not exceed the period reasonably required to prepare his request and submit it to the appointing authority.
90 The applicant’s diligence must be assessed as from the date on which he was able to have precise knowledge of the new fact on which he relies. In that regard, it has to be said in his favour that the advantage which the payment of the flat-rate redemption value established by the law of 2003 over the system of subrogation introduced by the law of 1991 holds for officials is not obvious from the actual text of the law of 2003. Moreover, as the Commission acknowledged in the abovementioned staff notice, the change in Belgian legislation only ‘generally’ leads to an increase in the transferable amount of pension rights for a given person. The complexity of the rules for calculating the pension rights transferred is such that it is difficult for an official to determine himself whether his legal situation is affected favourably or not by the new Belgian legislation. In that regard, the applicant maintains, without being seriously contradicted, that the comparative advantage of the system of flat-rate redemption values did not appear to him with any certainty until a chain of events had occurred, consisting of a comparison of the years of pensionable service that had been credited to him on the basis of the law of 1991 with those credited to one of his colleagues on the basis of the law of 2003, his request to the trade union for information about the reasons for and legality of this difference of treatment and a legal study commissioned by the trade union to be carried out by one of its lawyers on this issue and communicated to the trade union on 20 October 2004.
91 Above all, it should be observed that the applicant submitted his request for review of the decisions of 11 June and 26 August 2002 on 31 October 2004, in other words within the period of six months which, under Article 26(3) of Annex XIII to the Staff Regulations, the legislature granted to officials to request the transfer of their pension rights if they had not already done so. As he made his request within the period allowed by that article for officials in relation to whom he considers he has suffered discrimination, he cannot be regarded as having relied, in support of his request for review, on that article after an unreasonable period.
92 It follows from all of the above that the request for withdrawal of the decisions of 11 June and 26 August 2002, which was sent to the Commission on 31 October 2004, was justified by a new substantial fact and was submitted within a reasonable period from the time when the applicant had precise knowledge thereof.
93 The pleas seeking annulment of the Commission’s refusal to review these final decisions are consequently admissible.
3. Substance
94 The applicant puts forward seven pleas in law in support of his claims for annulment:
– the first plea alleges an error of law in the ground of the contested decision that the irrevocable nature of the transfer stems from the agreement of the applicant himself;
– the second plea alleges an error of law in the ground of the contested decision that the transfer of the pension rights is irrevocable because it had already been executed and the applicant’s INASTI and ONP files had been definitively closed;
– the third plea alleges an error of law in the ground of the contested decision that the transfer of the pension rights could not be rescinded in the absence of a provision of Community law permitting such action;
– the fourth plea alleges that the contested decision infringes the applicant’s right to challenge, in the Belgian courts, the consistency with Community law of the decisions of the Belgian authorities who applied the law of 1991 to him, and that it thus fails to have regard to the principle of the right to effective judicial remedy;
– the fifth plea alleges that the contested decision infringes the obligation of assistance laid down in Article 24 of the Staff Regulations and which, according to the applicant, the Commission should have observed on its own initiative;
– the sixth and seventh pleas allege that the law of 1991 is contrary to Community law, specifically, first, to Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect and, secondly, be the principle of equal treatment.
95 It is apparent from the reply to the complaint that the contested decision was based on two legal grounds: the irrevocable nature of the transfer of the applicant’s pension rights owing to the express agreement he had given to the Commission proposals and the absence of a provision in Community law permitting the Commission to reverse the said transfer.
96 For that reason, it is necessary to give precedence to an examination of the first and third pleas, which relate to these two grounds.
The plea alleging an error of law in the ground of the contested decision that the irrevocability of the transfer stemmed from the agreement of the applicant himself
– Arguments of the parties
97 The applicant maintains that neither the GIP of Article 11(2) of Annex VIII to the Staff Regulations in force at the time of the transfer of his pension rights, published in Informations Administratives No 789 of 16 April 1993, nor those currently in force, published in Informations Administratives No 60 of 9 June 2004, provide that the transfer becomes final and irrevocable when the person concerned signals his agreement to the crediting of years of pensionable service proposed to him by his institution on the basis of the transferable amount set by the national authorities.
98 Consequently, according to the applicant, the Commission proposals of 11 June and 26 August 2002 are contrary to the GIP of Article 11(2) of Annex VIII to the Staff Regulations in force at the time of the transfer of the applicant’s pension rights, as they provided that ‘upon receipt of your agreement by the [a]dministration, it will no longer be possible to rescind your request for the transfer of pension rights’.
99 Hence, in the view of the applicant, the said proposals could not be relied on against him in the contested decision.
100 Even supposing that at the time there had been a Community provision laying down that the transfer became irrevocable when the person concerned signalled his agreement to the Commission proposals, such a provision would, according to the applicant, have been contrary to Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect and to the principle of equal treatment.
101 By refusing to withdraw the decisions of 11 June and 26 August 2002 on the ground that they had become irrevocable as a result of their acceptance by the applicant, the appointing authority had, according to the applicant, vitiated the contested decision by an error of law.
102 The Commission points out that the applicant gave his express agreement to the proposals it had submitted to him and maintains that it is that express agreement that rendered them definitive. To claim that these decisions are not definitive and that an official has the right, at any moment, to go back on the express agreement he has given would, according to the Commission, completely distort the sense and scope of the procedure established by Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect and would strip the agreement freely given by the official of any legal value.
– Findings of the Tribunal
103 As stated above, at paragraphs 46 to 48 and at paragraph 56, the acts of 11 June and 26 August 2002, the withdrawal of which the applicant is seeking, are unilateral decisions, which came into effect as a result of their confirmation by the applicant on 17 July and 29 August 2002 respectively.
104 As a matter of principle, unilateral decisions become definitive after the expiry of the periods laid down in Articles 90 and 91 of the Staff Regulations.
105 It would be possible to derogate from these provisions only by means of a specific rule laying down the special circumstances in which decisions taken by the institution under Article 11(2) of Annex VIII to the Staff Regulations, in the versions applicable both before and after the entry into force of Regulation of 22 March 2004, become definitive.
106 In reply to the questions from the Tribunal, the Commission did not disclose the text on the basis of which it considered that the decisions of 11 June and 26 August 2002 became definitive as a result of their express acceptance by the applicant.
107 It is true that Article 1(2) of the GIP that were applicable in 2002 to Article 11(1) of Annex VIII to the Staff Regulations provided that ‘[t]he option [became] final and irrevocable as soon as the official [had] signed the agreement …’.
108 However, these GIP were applicable not to a transfer of pension rights to the Community scheme, as in the case at issue, but to the opposite hypothesis of a transfer of pension rights acquired in the Community scheme to another pension scheme. By contrast, it is significant that the GIP for Article 11(2) of Annex VIII to the Staff Regulations in force at the time of the transfer of the applicant’s pension rights do not mention the existence of any agreement given by the official to the institution’s proposals, nor a fortiori do they render that agreement definitive.
109 It follows from the foregoing that, although the applicant’s express acceptance of the unilateral decisions of 11 June and 26 August 2002 on 17 July and 29 August 2002 respectively enabled those decisions to come into force, it did not have the effect of rendering them definitive.
110 Consequently, the appointing authority committed an error of law by refusing to withdraw the decisions of 11 June and 26 August 2002 on the ground that their express acceptance by the applicant had rendered them definitive.
The plea alleging an error of law in the ground of the contested decision that the transfer of pension rights could not be rescinded in the absence of a provision in Community law permitting such action
– Arguments of the parties
111 The applicant maintains that, contrary to the view expressed by the Head of the ‘Pension’ unit in the contested decision, the possibility of withdrawing a request to transfer pension rights with the agreement of the institution depends, in the present case, not only on Article 9 of the law of 1991 but also on Community law.
112 According to the applicant, the basis of the request of 31 October 2004 is neither Article 9 of the law of 1991 nor Article 4 of the law of 2003 but Article 90(1) of the Staff Regulations, which grants an official the right to submit a request to the appointing authority for a decision in his regard.
113 The applicant points out that, in its judgment in Case T‑154/96 Chvatal and Others v Court of Justice [1998] ECR‑SC I‑A‑527 and II‑1579, paragraph 52, the Court of First Instance considered that exercise of the right granted by Article 90(1) of the Staff Regulations to any person to whom those regulations apply to submit to the appointing authority a request that it take a decision relating to him is not conditional on the existence of any legal basis permitting the administration to adopt the decision requested; nor is it hindered by the fact that the administration has no margin of discretion as regards its adoption.
114 Moreover, according to the applicant, the Commission derives its competence to allow the withdrawal of a request to transfer pension rights from Article 11(2) of Annex VIII to both the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect and the version resulting from that regulation, without prejudice to its right to refuse such a withdrawal for imperative reasons of legal certainty and good administrative and budgetary management, which clearly do not exist in the case in point.
115 The Commission claims that it could not withdraw its decisions of 11 June and 26 August 2002, since Community law did not provide for the withdrawal of requests to transfer pension rights. Contrary to the applicant’s assertions, the Commission maintains that the wording of Article 11(2) of Annex VIII to the Staff Regulations, both in the version prior to the entry into force of the Regulation of 22 March 2004 and that resulting from that regulation, does not give the institutions power to effect the withdrawal of a transfer of pension rights.
116 According to the Commission, neither the old wording of Article 11(2) of Annex VIII to the Staff Regulations nor its new wording permit an official to duplicate requests to transfer pension rights acquired in a national scheme in the light of changes in the relevant legislation of the Member State concerned. Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into effect provides that the transfer request can be made only at the time of establishment. Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from that regulation confirms the definitive nature of the decision taken in response to the transfer request by providing that ‘[o]fficials may make use of this arrangement once only’.
117 In the opinion of the Commission, this reading is justified by the case‑law of the Court of Justice and the Court of First Instance on the inadmissibility of requests to transfer pension rights acquired in a national scheme once a certain period has elapsed since the establishment of the official concerned. If an official could withdraw his transfer request at any time in his career, that case-law would be devoid of all usefulness. By asserting in its judgment in Drabbe v Commission, cited above (paragraph 74), that a transfer request may validly be submitted only within a brief period after establishment, the Court of First Instance confirmed that such a request could be made, under Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force, only at the time of establishment, and that consequently, once confirmed, the transfer request became definitive.
– Findings of the Tribunal
118 It is necessary first to examine whether the provisions of Article 11(2) of Annex VIII to the Staff Regulations, both in the version prior to the entry into force of the Regulation of 22 March 2004 and in the version resulting from that regulation, can, as the defendant claims, be interpreted as precluding the withdrawal of a transfer of pension rights.
119 In the judgment in Drabbe v Commission, cited above, the Court of First Instance ruled that the version of these provisions in force when the applicant obtained the transfer of his pension rights permitted the official to have previously acquired pension rights transferred to the Communities only at the time of establishment. Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from the Regulation of 22 March 2004 provides express, with regard to the right to transfer to the Communities pension rights acquired previously, that ‘[o]fficials may make use of this arrangement once only for each Member State and pension fund concerned.’
120 First, although the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force, illuminated by the case-law mentioned above, permitted an official to request the transfer of his pension rights only during the period of his establishment, they imposed no restriction on the possibility of requesting the withdrawal of a transfer of pension rights.
121 Secondly, if the decisions of 11 June and 26 August 2002 were withdrawn, a new transfer request would, where appropriate, be submitted within the permitted period, which has now been extended to 10 years, and on the conditions laid down in Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from the Regulation of 22 March 2004. Consequently, the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force, in particular where they stipulated that the transfer request could be submitted only at the time of establishment, would not prevent the submission of a transfer request subsequent to their repeal.
122 Thirdly, the fact that the provisions of Article 11(2) of Annex VIII to the version of the Staff Regulations resulting from the Regulation of 22 March 2004 authorise an official to avail himself only once of the arrangement to request the transfer of his pension rights acquired previously cannot be adduced to claim that those provisions prohibit the withdrawal of a transfer request. First, the possibility of submitting a second transfer request must not be confused with the possibility of withdrawing the first. Secondly, the abovementioned provisions, which came into effect on 1 May 2004, do not apply to a transfer request submitted before that date and consequently, if that request is withdrawn, cannot be an impediment to the author of the request submitting a new one on the conditions now in force.
123 Finally, it is clear from the very wording of the decisions of 11 June and 26 August 2002 that they are based on a mechanism for crediting pension rights to a Community pension scheme distinct from those expressly laid down for the transfer of those rights in Article 11(2) of Annex VIII to the version of the Staff Regulations applicable before the Regulation of 22 March 2004 came into force. Consequently, even supposing that the Staff Regulations, and, in particular, this provision can be interpreted as preventing the withdrawal of a transfer, these provisions themselves could not govern the conditions for the withdrawal of a decision taken on the basis of the sui generis subrogation mechanism resulting from the law of 1991, which was applied to the applicant in 2002.
124 It follows from the foregoing that neither the provisions of Article 11(2) of Annex VIII to the Staff Regulations, both in the version prior to the entry into force of the Regulation of 22 March 2004 and in that resulting from that regulation, nor any other provision of the Staff Regulations can be interpreted as precluding the withdrawal of the decisions of 11 June and 26 August 2002.
125 In the absence of a special provision of Community law governing the withdrawal of the decisions of 11 June and 26 August 2002, the conditions for their withdrawal are the general conditions identified by the case-law of the Court for individual decisions creating rights. Such decisions cannot be rescinded unilaterally by their author, if they are lawful (Judgment in Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly [1957] ECR 39, 55 and 56). In such a case, the need to safeguard confidence in the stability of the situation thus created prevents the administration from reversing its decision.
126 However, such a prohibition, which is intended to protect the rights of the beneficiary, cannot, by reason of its very purpose, be relied on against him. At the request of the beneficiary, the administrative authority that took a decision creating rights may revoke it in order to replace it by a decision more favourable to the person making the request, on condition that withdrawal does not harm the rights of third parties. Although the withdrawal of an administrative act is in principle permitted, the requirements of the principle of legal certainty must be strictly observed.
127 In the present case, it is necessary to examine whether the withdrawal of the Commission decisions of 11 June and 26 August 2002 is likely to affect the rights of the Belgian pension schemes.
128 First, the particular feature of the subrogation mechanism established by the law of 1991 is that it alters neither the rights nor the obligations of the Belgian pension schemes when the rights the official has acquired in those schemes are transferred to the Community pension scheme. In fact, transfer does not give rise to the payment of any sum by those schemes to the Community pension scheme. These schemes remain liable for the official’s pension rights, and their obligation consists, as previously, in the payment of the corresponding pension in monthly instalments from the date on which the official begins to draw his Community pension. The only change concerns the relationship between the official and the institution, which awards him in the Community scheme the actuarial equivalent of his Belgian pension rights and, as a counterpart, is subrogated to the pension rights that the official acquired in the Belgian pension schemes.
129 Since the rights of the Belgian pension schemes are not affected by the transfer of pension rights under the subrogation mechanism, they are also not likely to be affected by the withdrawal of the decisions taken in order to affect that transfer.
130 Secondly, at the time of the contested decision, Article 9 of the law of 1991 still allowed the Community official to withdraw his transfer request, provided subrogation had not yet taken effect, subject to the sole condition of obtaining the agreement of his institution. Since the law of 1991 recognised the official’s right to withdraw that transfer request before subrogation took effect, the Commission cannot validly maintain that the withdrawal of the decisions taken under that law, before subrogation had had any effect, affects the rights of the Belgian pension schemes. Moreover, as stated in the preceding paragraph, the reason for which Article 9 of the law of 1991 gave the official wide scope to withdraw his request is undoubtedly that the transfer of pension rights to the Community scheme by means of a subrogation mechanism did not immediately trigger the payment of a pension or a capital sum representing a pension.
131 It is true that the Kingdom of Belgium maintained, both at the hearing and in its written replies to the questions from the Tribunal, that the possibility of withdrawal provided for by Article 9 of the law of 1991 had been introduced by the Belgian legislature only in order to permit an official leaving the services of the Community before becoming eligible for a retirement pension from the Community scheme to retain his pension rights acquired in a Belgian scheme. According to the Kingdom of Belgium, the amendment of Article 9, by means of Article 194 of the law of 2006 with retroactive effect from 1 May 2004, confirms that this was the intention of the legislature in 1991. That argument cannot be accepted, however. Such an interpretation is not supported by the wording of Article 9, in the initial version of the law of 1991. Moreover, the fact alleged by the Kingdom of Belgium that the Commission suggested to the Belgian authorities, at the time of the drafting of the law of 1991, that the right to withdraw the transfer request be limited to cases of resignation, obliges the Court to consider that the Belgian legislature consciously rejected that proposal in the wording itself of Article 9 of the law of 1991 by allowing officials to withdraw their transfer request, subject only to obtaining the agreement of their institution. Moreover, by backdating the application of Article 194 of the law of 2006 only to 1 May 2004, the Belgian legislature implicitly acknowledged that that article was not an interpretative provision but an amending one and that, as a result, the previous wording of Article 9 of the law of 1991 did not confine withdrawal solely to cases in which the official was not eligible for a Community retirement pension.
132 Thirdly, even supposing that the new wording of Article 9 of the law of 1991 must be taken into account in order to assess whether, at the time of the contested decision, the rights of the Belgian pension schemes were liable to be affected by the withdrawal of the decisions of 11 June and 26 August 2002, it has to be found that, subject to any challenge to the provisions of Article 194 of the law of 2006 that may be brought in the competent courts, Article 9 of the law of 1991, as now worded, would, as the Belgian Government notes, prevent the applicant from achieving the withdrawal of the decisions whereby the Belgian schemes determined the amount of his pension rights with a view to their transfer.
133 It follows from the foregoing that the withdrawal of the decisions of 11 June and 26 August 2002 is not of itself liable to affect the rights of the Belgian pension schemes and that consequently the Commission was not obliged, as it claimed, to dismiss the request for the withdrawal of the said decisions submitted to it by the addressee of those decisions.
134 In these circumstances, the general rules applicable to the withdrawal of administrative acts did not prevent the Commission from rescinding those decisions.
135 Consequently, by considering that, in the absence of express provisions of Community law authorising it to do so, it could not withdraw the decisions of 11 June and 26 August 2002 at the request of the beneficiary of those decisions, the Commission misconstrued the scope of its powers under Article 11(2) of Annex VIII to the Staff Regulations, both in the version prior to the entry into force of the Regulation of 22 March 2002 and in the version resulting from that regulation, and thus committed an error of law in the contested decision.
136 It follows from all of the above that the refusal to withdraw the decisions of 11 June and 26 August 2002, which the Commission relied on against the applicant in the contested decision, must be annulled in that the said refusal is based on two grounds vitiated by errors of law, without it being necessary to rule on the other pleas of the application.
The pleas for annulment of the Commission’s refusal to allow the applicant to submit a new transfer request
137 As the applicant made no specific plea against the abovementioned decision, it must be considered that he expected to obtain the annulment of that decision only as a consequence of the annulment of the refusal to withdraw the decisions of 11 June and 26 August 2002.
138 The Commission rejected the applicant’s request to be allowed to submit a new request to transfer his pension rights on the same grounds as those on which it rejected his request to withdraw the decisions of 11 June and 26 August 2002. It is clear from this judgment that those grounds were vitiated by errors of law. It follows that the Commission’s refusal to allow the applicant to submit a new transfer request must also be annulled.
Costs
139 As the Tribunal ruled in its judgment in Falcione v Commission (F‑16/05, not yet published in the Court Reports, paragraphs 77 to 86), until the Rules of Procedure of the Tribunal and, in particular, the provisions regarding costs, come into force, it is necessary only to apply the Rules of Procedure of the Court of First Instance.
140 Under Article 87(2) of the Rules of Procedure of that Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered to bear its own costs and also to pay those incurred by the applicant.
141 Under the first paragraph of Article 87(4) of those Rules of Procedure, the Member States and institutions which intervened in the proceedings are to bear their own costs. The Kingdom of Belgium, as intervener, will therefore bear its own costs.
On those grounds,
THE TRIBUNAL (First Chamber)
hereby:
1. Annuls the decision of the Commission of the European Communities of 25 January 2005;
2. Orders the Commission of the European Communities to bear its own costs and those of Mr Genette;
3. Orders the Kingdom of Belgium to bear its own costs.
Delivered in open court in Luxembourg on 16 January 2007.