JUDGMENT OF THE GENERAL COURT
(Appeal Chamber)

13 October 2015

Case T‑131/14 P

Catherine Teughels

v

European Commission

(Appeal — Cross-appeal — Civil service — Officials — Pensions — Transfer of national pension rights — Proposals concerning additional years of pensionable service — Act not having an adverse effect — Inadmissibility of the action at first instance — Article 11(2) of Annex VIII to the Staff Regulations)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Full Court) of 11 December 2013 in Teughels v Commission (F‑117/11, ECR-SC, EU:F:2013:196), seeking to have that judgment set aside.

Held:      The judgment of the European Union Civil Service Tribunal (Full Court) of 11 December 2013 in Teughels v Commission (F‑117/11) is annulled. The action brought by Ms Catherine Teughels before the Civil Service Tribunal in Case F‑117/11 is dismissed. Ms Teughels is to bear her own costs in relation to the present proceedings and is ordered to pay those incurred by the European Commission in relation to the appeal. The Commission is to bear its own costs in relation to the cross-appeal. Ms Teughels and the Commission are each to bear their own costs in relation to the proceedings at first instance.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Definition — Proposal concerning additional years of pensionable service with a view to transferring to the EU scheme pension rights acquired prior to entry into service with the EU — Not included — Decision to credit years of pensionable service adopted following transfer of the capital representing acquired pension rights — Included

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

2.      Officials — Pensions — Pension rights acquired prior to entry into service with the EU — Transfer to the EU scheme — Right of the person concerned to know definitively, before the transfer, the number of years of pensionable service to be credited — Right to seek an advance ruling from the EU judicature — None

(Staff Regulations, Annex VIII, Art. 11(2))

3.      Actions brought by officials — Jurisdiction of the EU judicature — Advisory opinion — Not included

(Art. 270 TFEU; Staff Regulations, Art. 91(1))

1.      A proposal concerning additional years of pensionable service, sent to an official with a view to a transfer to the European Union pension scheme of pension rights acquired under another scheme, does not produce binding legal effects directly and immediately affecting the legal situation of the person concerned by bringing about a distinct change in his legal position. Accordingly, it does not constitute an act having adverse effect, within the meaning of Article 91(1) of the Staff Regulations.

Under Article 11(2) of Annex VIII to the Staff Regulations, actual determination of the number of years of pensionable service accredited to an official who has requested a transfer, to the EU pension scheme, of his pension rights formerly acquired under another scheme must necessarily take place after the transfer has actually taken place, ‘on the basis of the capital transferred’. It cannot therefore be considered that a proposal to calculate years of pensionable service which, by its very nature, is communicated prior to that transfer can make such a determination.

The number of years of pensionable service to be credited results from application of the method of conversion into years of pensionable service of the capital representing the former rights, laid down in the general implementing provisions adopted by the institution in question pursuant to Article 11(2) of Annex VIII to the Staff Regulations.

It is the decision adopted once the transfer of the capital representing the pension rights acquired by the person concerned before entering the service has taken place which constitutes an act having adverse effect and which may form the subject of an action for annulment under Article 91(1) of the Staff Regulations.

(see paras 52, 54, 58, 70)

2.      Article 11(2) of Annex VIII to the Staff Regulations does not require that the person concerned must have the opportunity, before deciding whether or not to exercise his right to transfer to the EU pension scheme his pension rights acquired under another scheme, to ascertain definitively how many years of pensionable service will be credited to him following such a transfer.

Equally, that provision does not require that any dispute between the person concerned and his institution, regarding the interpretation and application of the relevant provisions, be settled by the EU judicature even before the person concerned has decided whether or not he wishes to transfer pension rights which he has acquired under another scheme to the EU pension scheme.

(see para. 75)

3.      Article 270 TFEU does not confer on the EU judicature jurisdiction to give advisory opinions, only jurisdiction to adjudicate in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations.

It is the Staff Regulations which provide, in Article 91(1), that an action for annulment may be brought only against an act having an adverse effect. If the act against which the action is brought does not affect the applicant adversely the action is inadmissible. Any interest that person may have in the disposal of the substance of the issue raised in his action is irrelevant in that regard.

(see paras 77, 78)