JUDGMENT OF 15. 12. 1977 -CASE 95/76 BRUNS v COMMISSION

In Case 95/76

THE COURT (Second Chamber) composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

Substance

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

I. Accident insurance.

II. Insurance against illness, surgical operations etc.

III. Pensions.

A —. Pending the establishment of a pension scheme a provident fund shall be set up to which officials shall be bound to contribute from the date when they take up their duties.

B —. Survivors' pension

2. It is still a formal requirement that a decision be adopted recognizing Mr Brun's pension rights … The necessary procedures for this have already been set in motion. The decision will thus reach you in the next few days …

3. The point concerning the calculation of the pension rights (first paragraph of Article 49 of Annex VIII), which you raised in your letter of 7 March 1975, did not form the subject-matter of the proceedings which have just been concluded. As I have also stated to you the administration will accordingly communicate with Mr Bruns direct.

II —. Conclusions of the parties

1. Annul the decision of the Commission of 9 August 1976;

2. Order the Commission to take into consideration in calculating the applicant's retirement pension rights for the period when he was a member of the temporary joint provident scheme of the institutions of the Communities, namely from 4 December 1958 to 31 December 1961, the amount credited to his account under the said scheme at the time when the Staff Regulations entered into force;

3. Order the Commission to bear the costs.

1. Give a ruling on the procedural issue in accordance with Article 91 of the Rules of Procedure of the Court to the effect that the application is inadmissible;

2. Order the applicant to bear the costs.

1. Dismiss the application on the procedural issue which the defendant has submitted in connexion with the admissibility of the application;

2. Order the defendant to bear the costs.

1. Dismiss the application as inadmissible;

2. Alternatively dismiss the application as unfounded;

3. Order the applicant to bear the costs.

1. Dismiss the defendant's application on a procedural issue for the dismissal of the application as inadmissible;

2. Deliver a ruling as requested in Heads 1 to 3 of the conclusions which the applicant has put forward in his application;

III —. Submissions and arguments of the parties

IV —. Oral procedure

1. The applicant, a former official of the Commission, who entered the service of the Commission in 1958, requested and obtained on the termination of his service in 1969 the severance grant for which provision is made in Article 12 of Annex VIII to the Staff Regulations of Officials.

2. In the course of the negotiation of the abovementioned settlement the agent of the Commission addressed to the applicant's lawyer a letter dated 1 April 1974 to which was annexed a draft settlement which, according to the letter, has yet to be signed by Mr A. Borschette, Member of the Commission, together with a statement of account concerning the applicant's pension.

3. The calculation of that proportional reduction of the applicant's pension rights became the sole point at issue between the parties in the course of the negotiations undertaken with a view to a settlement and it is the sole point of substance in the present proceedings.

4. The said Staff Memorandum No 16 provided inter alia as follows:

5. The first paragraph of Article 49 of Annex VIII to the Staff Regulations, which forms part of the transitional provisions of Chapter 8 of that annex, reads as follows:

6. It is clear from the abovementioned statement of account that when the Commission effected the calculation in accordance with that provision it took into consideration the credit balance standing to the account at 31 December 1961, which consisted of the contributions paid by the applicant and by the institution which employed him, but did not take into consideration the interest on those sums.

7. However, since the Commission has raised a series of objections concerning the admissibility of the application it is appropriate first of all to set out the circumstances which gave rise to the dispute which forms the subject-matter of the present proceedings.

8. The applicant's lawyer, in a series of letters addressed to the Commission and bearing dates between 17 April 1974 and 7 March 1975, disputed this method of calculation, maintaining that account should have been taken of the entire credit balance in question, including interest.

9. The applicant lodged an application, which was received at the Court Registry on 30 September 1976, in which he claims the annulment of the decision of rejection of 9 August 1976 and further requests the Court to order the Commission, in calculating the applicant's pension rights for the period when he was a member of the temporary joint provident scheme which existed before the Staff Regulations came into force, to take into consideration the amount credited to his account under the said scheme at the time when the Staff Regulations entered into force.

10. Since the objections raised against the admissibility of the application are closely linked to the submissions put forward by the parties, for which reason the Court decided, by an Order of 19 January 1977, to consider the objections together with the substance, the substance of the case must be considered first.

11. The system established under Staff Memorandum No 16 was a provisional scheme pending the adoption in the Staff Regulations of provisions applicable to the staff with regard to social security.

12. On the other hand, the pension scheme set up under Article 77 of the Staff Regulations of Officials together with Article 2 of Annex VIII provides that the pension rights of all officials shall be calculated solely on the basis of the number of years of pensionable service acquired and of the last basic salary.

13. In order to ensure an equitable transition from the temporary provident scheme to the pension scheme under the Staff Regulations it was necessary to avoid creating discrimination between officials who, since they had not effected withdrawals from their account with the transitional scheme in order to maintain their pension rights with their former administration or institution, had not already obtained a specific benefit, and officials who had effected such withdrawals from their account.

14. It is clear from the foregoing that, having regard to the principles governing the pension scheme established by the Staff Regulations, it must be concluded that the Commission was justified in refusing to amend its calculation of the proportional reduction of the applicant's pension as desired by the applicant.

15. In the circumstances it is unnecessary to consider the preliminary objections raised by the Commission.

16. Pursuant to Article 62 (2) of the Rules of Procedure the unsuccessful party shall be ordered to bear the costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.