Report for the Hearing delivered in Case 124/87

I — Facts

1. Article 11 (2) of Annex VIII to the Staff Regulations of the European Communities (hereinafter referred to as the Staff Regulations) 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 organization or of an undertaking has the right, on becoming established with the Communities, to pay to them either the actuarial equivalent of retirement pension rights acquired by him previously or the sums repaid to him on leaving his former post. In such a case the institution in which the official serves must, taking into account his grade on establishment, determine the number of years of pensionable service with which he is to be credited under its own pension scheme on the basis of the amount of the actuarial equivalent or sums repaid.

2. General provisions for giving effect to Article 11 (2) were adopted under Article 110 of the Staff Regulations. In the first version of those provisions, which came into force on 1 July 1969 and was published in the Courrier du personnel of 29 July 1969, the second paragraph of Article 1 stipulated that, on pain of losing the right to do so, a request to make such payment had to be submitted within six months from the date of notification of the official's establishment.

3. On 4 February 1972 the Commission, following the procedure laid down in Article 110 of the Staff Regulations, decided to delete the words on pain of losing the right to do so from the second paragraph of Article 1 of the general provisions. This amendment was published in the Courrier du personnel of 6 July 1972, in which it was stated that the words on pain of losing the right to do so were deleted for reasons of fairness on account of the large number of officials who had submitted requests outside the formal time-limit.

4. A new version of the general provisions was adopted on 16 March 1977 and published in the Staff Courier of 19 October 1977. Article 1 now provides that the request must be made within a period of six months from

5. In the Staff Courier of 14 June 1978, the Commission informed officials affiliated to the Istituto nazionale italiano della previdenza sociale (INPS) that the transfer of their pension rights to the Community scheme was henceforth possible under the terms of an agreement reached between INPS and the European Community. The Commission pointed out in the notice that, following the entry into force of its decision of March 1977, officials were required to observe a six-month time-limit, with effect from the date of publication of the notice, for the lodging of a request and that the request must therefore be registered by the Administration before the expiry of that period.

6. On 6 April 1984, the heads of administration of the European Communities decided that a request for a transfer of pension rights could be accepted even if it was made after the end of the period laid down, provided that the delay was not attributable to the official.

7. At its meeting on 12 December 1984, the Commission took certain measures on the transfer of pension rights. In respect of certain States, the Commission decided to issue a reasoned opinion in the context of default proceedings; in respect of others, it decided to pursue negotiations, in particular on the basis of the following criteria:

8. Mrs Giovanna Gritzmann-Martignoni was a member of the establishment staff of the Commission from January 1962 to October 1976. During the whole of that time she was insured with the INPS. In October 1976, she was appointed a member of the temporary staff at the Joint Research Centre at Ispra.

9. On 6 June 1985, the applicant made a request within the meaning of Article 90 (1) of the Staff Regulations in order to obtain a proposal for the transfer of pension rights acquired at national level.

10. By a memorandum dated 2 August 1985, the head of the Financial and Administrative Rights Division of the Commission's Directorate-General for Personnel and Administration replied to her that under the general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations her request should have reached the Commission before 31 December 1978; nevertheless, a decision adopted by the Commission on 12 December 1984 allowed officials who had submitted requests after the expiry of the time-limit to benefit from the application of Article 11, except that any increases in capital occurring after the date of establishment would not be taken into account; consequently, a transfer proposal formulated on the basis of that Commission decision would be sent to the applicant in due course.

11. The aforementioned memorandum was annexed by Mrs Paola Volpi-Fontana to her application brought before the Court on 9 January 1986 (Case 4/86, removed from the Court's register). That enabled the Commission to notice the contradictory nature of the attitudes adopted, on the one hand, by the Financial and Administrative Rights Division and, on the other, by the Staff Regulations Division, which is responsible for dealing with complaints and had prepared the reply to Mrs Volpi-Fontana's complaint; it appeared to the Commission that the position taken by the Financial and Administrative Rights Division was incorrect.

12. By a memorandum dated 20 May 1986, the Director for Administration informed Mrs Gritzmann-Martignoni that the reference in the memorandum of 2 August 1985 to the decision of 12 December 1984 was based on an erroneous interpretation of that decision and that, consequently, her transfer request could not be accepted because the time-limit had expired.

13. On 18 August 1986 Mrs Gritzmann-Martignoni submitted a complaint to the Commission pursuant to Article 90 (2) of the Staff Regulations. The Commission rejected her complaint by a letter of 26 February 1987.

II — Written procedure and conclusions of the parties

1. The action brought by Mrs Giovanna Gritzmann-Martignoni was registered at the Court Registry on 10 April 1987.

2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. It did, however, invite the Commission to reply in writing to two questions; the Commission complied with that request within the time-limit laid down.

3. Mrs Giovanna Gritzmann-Martignoni, the applicant, claims that the Court should:

4. The Commission, the defendant, claims that the Court should:

III — Submissions and arguments of the parties

In her action, which is based on Article 91 of the Staff Regulations, the applicant makes two submissions:

A — Breach of the principle of protection of legitimate expectations

1. (a) The applicant first mentions the fact that the Financial and Administrative Rights Division quoted, with specific references, a decision of the Commission. The mention of the date of this decision, and the precautions taken to prevent late requests for transfer from receiving more favourable treatment than those lodged within the periods initially laid down, gave no suggestion that there was an error or misunderstanding or that the decision referred to was imaginary. (b) She then refers to detailed oral information given by the departments in Brussels in order to establish that it was a decision adopted by approval of a working document drawn up by the Administration. The Ispra Personnel and Administration Division, moreover, continued until November 1986 to accept requests for transfers of a similar kind, thus prolonging the certainty that the time-limits would be extended. (c) The applicant also points out that a number of requests presented within the time-limits have not yet been transmitted by the Commission to INPS, which, however, has no objections to processing them. In these circumstances it is difficult to see what objective obstacle there is to an extension of the time-limit, inasmuch as the retirement date is still a long way off, many transfer requests remain unanswered and the freezing of the amounts as at the date of appointment permanently ensures equality of treatment. The applicant states that she was perplexed by the communication of the decision of 12 December 1984, particularly with regard to the fact that the Administrative and Financial Rights Division negotiated the agreement with INPS and that, in her view, the decision must have been prepared by that division. In view of the incomplete documentation produced and the conflict of interpretation caused by the Minutes of 12 December 1984 between two departments of the same Directorate-General, the applicant requests the Court to order the Commission to produce the preparatory documents on which the decision of 12 December 1984 was based, in particular the full text of the communication which was sent at the time to the Secretariat-General for the meeting of the Commission in Strasbourg on 12 December 1984. To argue, as the Commission does, that the applicant ought to have realized that the competent person in the Administrative and Financial Rights Division did not have authority to alter a time-limit laid down in the provisions giving effect of Article 12 (2) is specious. In the light of the detailed wording of the measure of 2 August 1985, the fact that it was prepared by the competent department, which was thus the least likely one to make a mistake, and the reference to a specific legal basis the applicant was entitled to believe that it was an official and final position. (d) Finally, according to the applicant, the principle of protection of legitimate expectations has also been infringed as regards the provisions giving effect to Article 11 (2), which make no mention of loss of rights.

2. The Commission replies that it was unfortunately obliged to retract but the institutions are required to act in accordance with the law; when they discover an error in the interpretation or the application of the law, they are obliged to rectify it.

B — Breach of the general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations

1. The applicant, pointing to the legislative history of the general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations and the fact that the rules in force no longer speak of loss of rights, considers that the period down for presenting a request is merely exhortatory. The function of the time-limit simply reflects the need to ensure orderly administration. As a result of the precautions taken by the Commission in its decision of 12 December 1984, there is only one objective time-limit on transfer, that is to say the date of retirement. It should also be noted that the agreement between the Commission and INPS entered into force in 1978 and that the question of a transfer did not actually arise for the applicant until that date. In these circumstances, 1978 represented for officials and agents affiliated to the Italian insurance scheme what 1969 was for officials who were relieved in 1972 from the loss of their rights.

2. The Commission replies that the applicant's interpretation is excessive. In 1972, the deletion of the words on pain of losing the right to do so had the effect of extending the time-limit for officials or agents who, when the rules were first applied, did not realize that they had the possibility of requesting a transfer. This concern was all the greater since at that time the provisions only took into consideration two starting-dates for calculating the time-limit. Only in the 1977 version was a third starting-date introduced, namely the date on which transfer became possible by means of the conclusion of specific agreements. The time-limit was extended for everyone, but in the formulation of the new provisions the accent was placed on the fixing of a time-limit.

IV — Replies to the questions asked by the Court

1. The Commission was asked to give its opinion on the question whether general provisions for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations can make the exercise of the right to request a transfer of rights conditional on the observance of a time-limit. Its reply was that the general provisions which were adopted have the effect of widening the possiblities of transfer in order to take account of the possible absence of agreements with the Member State in question at the time of establishment of the official, since the latter would then be unable to effect a transfer. The provisions adopted were based on the recognition that the strict application of Article 11 (2) could have serious and unique consequences in the case of officials coming from Member States which had not taken the necessary steps to put Article 11 (2) into operation at the time when the said officials were established. The six month time-limit reflects a wish not to depart too far from the provisions of Article 11 (2) to prevent any speculation foreign to the purposes of the scheme. The Court's case-law confirms that the power to enact general provisions for giving effect to the Staff Regulations is not limited to cases in which their adoption is expressly provided for therein.

2. The Commission was also asked to explain how the publication in the Staff Courier of the new possibility of transferring rights acquired with INPS could be regarded as having brought to the notice of staff a specific date as from which such transfer could be requested and whether it was possible, in this case, to establish that the applicant did in fact know of the fresh possibility which was now offered. Its reply was that the notice published in the Staff Courier clearly stated that the six-month period began to run on the date of publication of the notice, that is to say on 14 June 1978, Ispra officials were subsequently reminded of the time-limit by a notice dated 13 July 1978 which stated that the expiry date was 13 December 1978. A copy of that notice was sent personally to each official and each official also received an invitation dated 22 May 1978 to attend an information meeting arranged following the conclusion of the agreement with INPS.

1 Language of the Case: Italian.