JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

7 October 2009

Case F-101/08

Spyridon Pappas

v

Commission of the European Communities

(Civil service – Officials – Pensions – Transfer to Community scheme of pension rights acquired before entry into service of the Communities – Withdrawal – Admissibility – Retirement in the interests of the service – Amount of pension)

Application: brought under Articles 236 EC and 152 EA, in which Mr Pappas seeks, first, annulment of the Commission’s decision of 6 February 2008 determining his retirement pension rights; second, annulment of the Commission’s decision of 27 February 2003 withdrawing the letter of 23 October 2000, which fixed at 18 years and 10 days the number of years of pensionable service resulting from the transfer, to the Community pension scheme, of rights he had acquired in particular as a member of the Greek Council of State, and fixing that figure at 15 years, 2 months and 21 days; and third, annulment of a further Commission decision of 27 February 2003 withdrawing the letter of 7 September 2001, which fixed at 2 years, 4 months and 2 days the number of years of pensionable service under the Community scheme resulting from the transfer of rights he had acquired as a lawyer in Greece, and fixing that figure at 1 year, 10 months and 15 days.

Held: The action is dismissed. The applicant is ordered to pay the costs.

Summary

1.      Officials – Actions – Prior administrative complaint – Time-limits – Point from which time starts to run

(Staff Regulations, Art. 90(2))

2.      Officials – Pensions – Acquisition of pension rights

(Staff Regulations, Art. 50)

1.       For a decision to be duly notified, within the meaning of the Staff Regulations, it must be communicated to the addressee and the addressee must be able to have effective knowledge of its content.

The onus is on an institution relying on a breach of the time-limit provided for in Article 90(2) of the Staff Regulations, according to which complaints must be lodged within three months starting ‘on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person’, to provide evidence of the date on which that time-limit started to run.

If evidence that the addressee of a decision has had effective knowledge thereof cannot be obtained simply from circumstantial factors, circumstances other than formal notification of the decision, such as an email from the addressee from which it is clear that he had had effective knowledge of the decision, may constitute such evidence.

(see paras 41-44)

See:

5/76 Jänsch v Commission [1976] ECR 1027, para. 10; 108/79 Belfiore v Commission [1980] ECR 1769, para. 7

T-50/92 Fiorani v Parliament [1993] ECR II‑555, para. 16; T-196/95 H v Commission [1997] ECR-SC I‑A‑133 and II‑403, paras 32 to 35; T-254/01 Di Pietro v Court of Auditors [2002] ECR-SC I‑A‑177 and II‑929, paras 25 to 27

F-13/07 L v EMEA [2007] ECR-SC I‑A‑1‑105 and II‑A‑1‑585, paras 29 to 32; F‑71/06 Lebedef-Caponi v Commission [2007] ECR-SC I‑A‑1‑115 and II‑A‑1‑629, para. 34

2.      It is clear from the wording of the final paragraph of Article 50 of the Staff Regulations that an official in a grade A 1 or A 2 post who has been removed from that post in the interest of the service is entitled to a pension without application of the reduction provided for in Article 9 of Annex VIII to the new Staff Regulations, on condition that, at the end of the period during which entitlement to the allowance referred to in Article 50 arises, the official has attained the age of 55 years.

It is particularly necessary to interpret the final paragraph of Article 50 literally because, first, the provision concerned is by way of a derogation from the general rules for calculating a retirement pension and must therefore be interpreted strictly, and, second, provisions providing entitlement to financial benefits must be interpreted strictly.

(see paras 62, 64-65)

See:

T-221/02 Lebedef and Others v Commission [2003] ECR-SC I‑A‑211 and II‑1037, para. 38 and the case-law cited therein; T-11/02 Pappas v Commission [2004] ECR-SC I‑A‑381 and II‑1773, para. 53

F‑10/06 André v Commission [2006] ECR-SC I‑A‑1‑183 and II‑A‑1‑755, paras 34 to 36