Opinion of Advocate General

Mr President,

Members of the Court,

1. In this appeal Mr Lestelle is requesting the Court to set aside the judgment delivered by the Court of First Instance on 22 November 1990 in Case T-4/90 and, in accordance with the originating application, to annul the decision by the Commission to continue after 22 March 1989 to deduct pension contributions from the termination of service allowance received by the applicant under Council Regulation (ECSC/EEC/Euratom) No 3518/85 of 12 December 1985 introducing special measures to terminate the service of officials of the European Communities as a result of the accession of Spain and Portugal.

2. A brief summary of the legislative background will make it easier to understand the issues involved.

3. I now come to the facts of the present case.

4. By judgment of 22 November 1990 (Case T-4/90), however, the Court of First Instance dismissed the application in particular on the ground that:

5. It is essentially against those arguments that Mr Lestelle directs his allegations in his appeal against the judgment at first instance; Mr Lestelle makes two pleas in support of his appeal, the first based on an infringement of Article 4(7) of Regulation No 3518/85 and the second on an infringement of the principle that judgments must be supported by a statement of reasons.

6. It follows from the foregoing that, by deciding that an official to whom a measure of definitive termination of service is applied within the meaning of Article 5 of Regulation No 3518/85 continues to be subject under Article 95 of the ECSC Rules and Regulations to the obligation to contribute to the pension scheme, the Court of First Instance erred in law.

7. To that end, it may be useful to give a brief account of the characteristics of the Community pension scheme, bearing in mind above all that, under the terms of the first paragraph of Article II of the Staff Regulations, an official who has completed at least ten years' service is entitled to a retirement pension. He is, however, entitled to such a pension, irrespective of length of service, if he is over 60, or if it has not been possible to reinstate him during a period of non-active status or else in the event of retirement in the interests of the service.

8. It is against that legislative background that the scope of Article 4(7) of Regulation No 3518/85 falls to be determined; in particular it is necessary to examine whether in providing that during the period for which he is entided to receive the allowance, the former official can continue to acquire further rights to retirement pension based on the salary attaching to his grade and step, provided that the contribution provided for in the Staff Regulations by reference to that salary is paid during that period ..., the legislature sought to grant to the officials in question the right to elect whether or not to continue to acquire further pension rights by paying the corresponding contributions, or whether it wished to dispense from payment those persons who had acquired entitlement to the maximum retirement pension.

9. If that interpretation of Article 4(7) is correct, therefore, I do not believe that the scope of the provision in issue can be different with regard to former ECSC officials to whom the provision applies pursuant to Article 5(2) of Regulation No 3518/85.

10. In that connection I am not persuaded by the argument relied on by Mr Lestelle to the effect that the interpretation here advocated would in certain cases render the specific arrangements provided for in the case of former ECSC officials less advantageous than the usual arrangements for other officials.

11. In the light of the foregoing considerations, therefore, I propose that the Court should quash the judgment given by the Court of First Instance on 22 November 1990 in Case T-4/90, but reject the claim for the annulment of the decision by the Commission to continue, after 22 March 1989, to deduct pension contributions from the allowance received by the appellant pursuant to Regulation (EEC) No 3518/85.

12. With regard to costs, I would point out in the first place that the appeal has been partially successful and, secondly, that the Commission in its defence merely asks the Court to make such order as to costs as may be provided for by law, without expressly seeking an order that the appellant should pay the costs as provided for in Articles 69(2) and 122 of the Rules of Procedure.

1 Original language: Italian.

2 [1990] ECR II-689.

3 OJ 1985 L 335, p. 56.

4 OJ 1968 L 56, p. 1.

5 Judgment in Case 127/80 Grogan v Commission [1982] ECR 869, paragraph 5 of the Opinion.

6 The terms used in the French, English and German versions are respectively: sous réserve que, provided that, and sofern.

7 See Council Regulation (Euratom, ECSC, EEC) No 2530/72 of 4 December 1972 (OJ 1972 L 272, p. 1) adopted on the accession of Denmark, Ireland and the United Kingdom; Council Regulation (ECSC, EEC, Euratom) No 2150/82 of 21 July 1982 (OJ 1982 L 228, p. 1) adopted on the accession of Greece.

8 That obligation to pay contributions is limited to a maximum period of five years in the case of officials affected by the measures contained in Anieles 41 and 50 of the Staff Regulations, but that may be explained by the fact that under Article 3 of Annex VIII, and unlike the regulation in question, such officials may acquire further pension rights only for a maximum of five years.

9 See Article 5(7) of Regulation No 259/68; Art. 3(7) of Regulation No 2530/72; Art. 3(7) of Regulation No 1543/73 (OJ 1973 L 155, p. 1); Art. 2(7) of Regulation No 2150/82; Art. 3(7) of Regulation No 1679/85 (OJ 1985 L 162, p. 1).

10 Judgment in Case 28/74 Gillet [1975] ECR 463, at paragraph 6.