1 THE APPLICATION SEEKS THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION REJECTING THE APPLICANT' S REQUEST FOR HIS PERIOD OF SERVICE ON THE AUXILIARY STAFF OF THE COMMUNITIES TO BE TAKEN INTO ACCOUNT IN CALCULATING THE YEARS OF PENSIONABLE SERVICE WHICH HE HAS ACQUIRED FOR THE PURPOSES OF HIS RETIREMENT PENSION .
2 THE APPLICANT CONSIDERS THAT HE IS ENTITLED TO HAVE THE ABOVE PERIOD TAKEN INTO ACCOUNT UNDER ARTICLE 3 ( C ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS .
3 UNDER ARTICLE 2 OF THE ANNEX : " A RETIREMENT PENSION SHALL BE PAYABLE ON THE BASIS OF THE TOTAL NUMBER OF YEARS OF PENSIONABLE SERVICE ACQUIRED BY THE OFFICIAL ".
4 UNDER ARTICLE 3 OF THE SAME ANNEX : " FOR THE PURPOSE OF CALCULATING YEARS OF PENSIONABLE SERVICE WITHIN THE MEANING OF ARTICLE 2, THE FOLLOWING SHALL BE TAKEN INTO ACCOUNT : ( A ) ... ( B ) ... ( C ) ... PERIODS OF SERVICE IN ANY OTHER CAPACITY IN ACCORDANCE WITH THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES " - HEREINAFTER REFERRED TO AS THE " CONDITIONS OF EMPLOYMENT " -, " PROVIDED THAT THE SERVANT CONCERNED HAS PAID HIS SHARE OF THE PENSION CONTRIBUTION IN RESPECT OF SUCH PERIODS OF SERVICE ".
5 THE APPLICANT MAINTAINS THAT THE PHRASE " PENSION CONTRIBUTION IN RESPECT OF SUCH PERIOD OF SERVICE " INCLUDES CONTRIBUTIONS PAID BY THE AUXILIARY STAFF OF THE COMMUNITIES TO NON-COMMUNITY SOCIAL SECURITY SCHEMES; SUCH CONTRIBUTIONS ARE IN FACT " PROVIDED FOR " BY ARTICLE 70 OF THE CONDITIONS OF EMPLOYMENT .
6 NOTWITHSTANDING THE WORDING OF ARTICLE 3 ( C ) THIS INTERPRETATION DOES NOT WITHSTAND A SYSTEMATIC EXAMINATION OF THE PROVISIONS CONCERNING THE PENSION SCHEME FOR COMMUNITY SERVANTS .
7 THE REASON FOR THIS IS THAT, BY PROVIDING THAT " BENEFITS PAID UNDER THIS PENSION SCHEME SHALL BE CHARGED TO THE BUDGET OF THE COMMUNITIES " AND THAT " OFFICIALS SHALL CONTRIBUTE ONE THIRD OF THE COST OF FINANCING THIS PENSION SCHEME ", ARTICLE 83 OF THE STAFF REGULATIONS OF OFFICIALS ESTABLISHES A CLOSE CORRELATION BETWEEN THE ACQUISITION OF THE RETIREMENT PENSION AND THE FINANCING, BY THE INDIVIDUAL CONCERNED, OF THE FUND CREATED FOR THE PURPOSES OF PAYING SUCH PENSION .
8 THEREFORE, UNLESS A CLEAR EXCEPTION IS LAID DOWN, CONTRIBUTIONS TO A SCHEME OUTSIDE THE COMMUNITIES CANNOT AUTOMATICALLY GIVE RISE TO THE ACQUISITION OF COMMUNITY PENSION RIGHTS; MOREOVER, THE ACQUISITION OF SUCH RIGHTS MIGHT BE WHOLLY SUPERFLUOUS SINCE IT WOULD BE IN ADDITION TO THE YEARS OF PENSIONABLE SERVICE WHICH THE INDIVIDUAL CONCERNED HAS ALREADY BEEN ABLE TO ACQUIRE WITHIN THE CONTEXT OF SUCH SCHEME .
9 CONSIDERED IN ITS CONTEXT, ARTICLE 3 OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS MAY NOT BE UNDERSTOOD TO LAY DOWN SUCH AN EXCEPTION . PARAGRAPH ( A ) OF THIS PROVISION REFERS TO OFFICIALS IN ACTIVE EMPLOYMENT, ON SECONDMENT OR ON LEAVE FOR MILITARY SERVICE, AS REGARDS WHOM THE RESPECTIVE ARTICLES 83 ( 2 ), 38 ( E ) AND THE SECOND PARAGRAPH OF ARTICLE 42 OF THE STAFF REGULATIONS LAY DOWN THAT THEY ONLY ACQUIRE COMMUNITY PENSION RIGHTS IF THEY PAY INTO THE PENSION FUND OF THE COMMUNITIES THE CORRESPONDING CONTRIBUTIONS .
10 SIMILAR CONSIDERATIONS APPLY TO ARTICLE 3 ( B ) RELATING TO OFFICIALS WHO HAVE NON-ACTIVE STATUS OR WHO HAVE BEEN RETIRED IN THE INTERESTS OF THE SERVICE, AS ARTICLE 37 OF ANNEX VIII TO THE STAFF REGULATIONS PROVIDES THAT SUCH AN OFFICIAL " SHALL CONTINUE TO PAY THE CONTRIBUTION " TO THE PENSION SCHEME " ... UP TO A MAXIMUM OF FIVE YEARS AS PROVIDED IN ARTICLE 3 ".
11 AS REGARDS PARAGRAPH ( C ) OF THIS ARTICLE IT MUST BE REMEMBERED THAT THE SECOND PARAGRAPH OF ARTICLE 40 AND ARTICLE 41 OF THE CONDITIONS OF EMPLOYMENT PROVIDE RESPECTIVELY THAT " ANY PERIOD OF SERVICE ON THE TEMPORARY STAFF OF ONE OF THE THREE EUROPEAN COMMUNITIES SHALL BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING YEARS OF PENSIONABLE SERVICE AS PROVIDED FOR IN ANNEX VIII TO THE STAFF REGULATIONS " AND THAT, AS REGARDS THE FUNDING OF THIS SCHEME, " ARTICLE 83 OF THE STAFF REGULATIONS SHALL APPLY BY ANALOGY ".
12 AS THE CONDITIONS OF EMPLOYMENT CONTAIN NO IDENTICAL OR SIMILAR PROVISIONS FOR THE AUXILIARY STAFF IT MUST BE CONCLUDED THAT THEY ARE NOT REFERRED TO IN ARTICLE 3 ( C ) OF ANNEX VIII TO THE STAFF REGULATIONS .
13 THE APPLICANT STATES THAT, IN THE LIGHT OF THE SECOND PARAGRAPH OF ARTICLE 48 OF ANNEX VIII IN PARTICULAR, THIS INTERPRETATION IS CONTRARY TO THE SPIRIT OF THE STAFF REGULATIONS . THIS PARAGRAPH PROVIDES THAT : " IF AN OFFICIAL SO REQUESTS, ( HIS ) PENSION RIGHTS SHALL, NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY IN THE STAFF REGULATIONS, BE COMPUTED FROM THE DATE ON WHICH HE ENTERED THE SERVICE OF AN INSTITUTION OF ONE OF THE THREE EUROPEAN COMMUNITIES IN ANY CAPACITY WHATEVER ".
14 HOWEVER, ARTICLE 48 COMES UNDER THE " TRANSITIONAL PROVISIONS " OF ANNEX VIII AND, ACCORDING TO ITS FIRST PARAGRAPH, ONLY APPLIES TO AN " OFFICIAL TO WHOM THE STAFF REGULATIONS ARE APPLIED PURSUANT TO THE TRANSITIONAL PROVISIONS " OF THAT ANNEX, THAT IS, IT REFERS TO A SITUATION WHICH IS QUITE DIFFERENT FROM THAT OF SERVANTS WHO, LIKE THE APPLICANT, HAVE BEEN ENGAGED AS AUXILIARIES UNDER THE STAFF REGULATIONS OF 1962 .
15 MOREOVER, THE SECOND PARAGRAPH OF THE SAME ARTICLE SHOWS THAT, TO THE EXTENT TO WHICH THE OFFICIAL REFERRED TO THEREIN HAS NOT CONTRIBUTED UNDER THE PREVIOUS COMMUNITY PROVIDENT SCHEME, HIS EARLIER PERIODS OF SERVICE CAN ONLY BE TAKEN INTO ACCOUNT PROVIDED THAT " BY PAYMENT IN INSTALMENTS, HE IS ABLE TO BUY IN THE PENSION RIGHTS FOR WHICH HE HAD BEEN UNABLE TO CONTRIBUTE ", WITH THE RESULT THAT ARTICLE 48 CONFIRMS THE PRINCIPLE OF THE CLOSE CORRELATION BETWEEN THE CONTRIBUTIONS MADE AND THE YEARS OF PENSIONABLE SERVICE ACQUIRED .
16 IN SUPPORT OF HIS ARGUMENT THE APPLICANT AGAIN MAINTAINS THAT, CONTRARY TO THE VIEW HELD BY THE DEFENDANT, HE CANNOT BENEFIT FROM THE PROVISIONS OF ARTICLE 11 ( 2 ) OF ANNEX VIII WHICH ENABLE CERTAIN OFFICIALS TO ACQUIRE ADDITIONAL YEARS OF PENSIONABLE SERVICE BY PAYING CERTAIN SUMS TO THE COMMUNITIES CORRESPONDING TO THE RIGHTS WHICH THEY HAVE ACQUIRED IN RELATION TO NON-COMMUNITY PENSION FUNDS .
17 ACCORDING TO THE APPLICANT, THESE PROVISIONS REQUIRE THE INDIVIDUAL CONCERNED FIRST TO HAVE BEEN AN OFFICIAL SINCE HE ENTERED THE SERVICE OF THE COMMUNITIES AND, SECONDLY, TO HAVE BEEN IN THE SERVICE OF A GOVERNMENT ADMINISTRATION OR ORGANIZATION OUTSIDE THE COMMUNITIES BEFORE BEING APPOINTED AN OFFICIAL THEREIN .
18 ALTHOUGH THE WORDING OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS APPEARS TO CONFIRM THESE ARGUMENTS, THE DEFENDANT HAS, HOWEVER, RIGHTLY MAINTAINED THAT THERE IS NO JUSTIFICATION FOR REFUSING TO GRANT THIS FACILITY TO OFFICIALS WHO, FROM BEFORE THEIR APPOINTMENT, HAVE HAD CERTAIN LINKS WITH THE COMMUNITIES, WHEN THEY ARE APPLIED TO OFFICIALS WHO ARE RECRUITED DIRECTLY FROM OUTSIDE AND WHO ARE CLEARLY REFERRED TO BY THE PROVISION IN QUESTION .
19 FINALLY, IN THE COURSE OF THE PROCEEDINGS THE APPLICANT DECLARED THAT SHOULD THE COURT NOT ACCEPT THAT ARTICLE 3 OF ANNEX VIII IS AUTOMATICALLY APPLICABLE TO HIM HE WAS PREPARED TO PAY INTO THE COMMUNITY PENSION FUND THE SUM WHICH HE WOULD OBTAIN FROM THE LUXEMBOURG FUND TO WHICH HE HAD BEEN AFFILIATED AS A MEMBER OF THE AUXILIARY STAFF OF THE COMMUNITIES, AS INCREASED BY THE DIFFERENCE BETWEEN THE SUM WHICH HE WOULD HAVE PAID HAD HE BEEN AFFILIATED TO THE COMMUNITY SCHEME FROM THE BEGINNING AND THAT WHICH HE HAS IN FACT PAID INTO THIS FUND .
20 HE MAINTAINS THAT THIS OFFER " IS ONLY BASED UPON A PROCEDURE SUGGESTED BY ARTICLES 11 AND 48 OF THE SAME ANNEX VIII TO THE STAFF REGULATIONS ".
21 HOWEVER, NO PROVISION OF THE STAFF REGULATIONS PROVIDES FOR SUCH A METHOD OF FUNDING AS THAT SUGGESTED BY THE APPLICANT IN ORDER FOR THE PERIODS OF SERVICE FOR WHICH HE HAS NOT CONTRIBUTED TO THE COMMUNITY PENSION SCHEME TO BE TAKEN INTO ACCOUNT .
22 IN THESE CIRCUMSTANCES, THE PRESENT APPLICATION MUST BE DISMISSED AS UNFOUNDED .
23 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
24 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
25 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
