ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

15 June 2016

Case F‑88/12

Harald Gaertner

v

European Commission

(Civil service — Members of the temporary staff — Pensions — Transfer of national pension entitlements — Proposals concerning additional pensionable years — Act not having an adverse effect — Inadmissibility of the action — Application for a decision not going to the substance of the case — Article 83 of the Rules of Procedure)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Harald Gaertner sought annulment of the ‘decision’ of 16 January 2012 calculating the years to be credited to the European Union pension scheme in respect of pension rights acquired previously under a different scheme and, in so far as was necessary, of the decision of the appointing authority of the European Commission of 15 June 2012 rejecting his complaint against the ‘decision’ fixing the years to be credited.

Held:      The action is dismissed. Mr Harald Gaertner is to bear his own costs and is ordered to pay the costs incurred by the European Commission.

Summary

Actions brought by officials — Act adversely affecting an official — Definition — Proposal concerning additional pensionable years with a view to a transfer to the EU pension scheme of pension rights acquired before entry into the service of the EU — Not included

(Staff Regulations, Art. 91(1) and Annex VIII, Art. 11(2))

A proposal concerning additional pensionable years, communicated to an official with a view to the transfer to the EU pension scheme of pension rights acquired under another system, does not produce binding legal effects which directly and immediately affect the legal situation of the person to whom it is addressed by significantly altering that situation and does not constitute an act adversely affecting him for the purposes of Article 91(1) of the Staff Regulations.

In that regard, claims for the annulment of a proposal concerning additional pensionable years with a view to the transfer to the EU pension scheme of pension rights acquired under another system must be interpreted as seeking annulment of the final decision crediting those additional years where, first, the parties agree that the official concerned had given his consent to the continuance of the procedure for transferring his pension rights acquired before entry into the service of the EU, by indicating his agreement to the proposal made to him, and, second, where that final decision was adopted before the action was brought before the Courts of the Union.

Where (i) a decision crediting additional pensionable years resulting from pension rights acquired previously by the applicant under another scheme was adopted before the action was brought, (ii) the applicant expressly claimed that his action might be regarded as seeking, in reality, the annulment of the final decision crediting those additional years, (iii) a fresh decision was adopted crediting additional pensionable years resulting from pension rights acquired previously by the applicant under another scheme, and (iv) that fresh decision expressly withdrew and replaced the decision crediting additional pensionable years, so that the fresh decision could not but be regarded as withdrawing, with retroactive effect, a decision which served the same purpose, the latter decision must be regarded as having never existed.

(see paras 14-18)

See:

Judgments of 13 October 2015, Commission v Verile and Gjergji, T‑104/14 P, EU:T:2015:776, paras 62, 110 and 120, and Teughels v Commission, T‑131/14 P, EU:T:2015:778, para. 58