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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Lindorfer v Council (Staff Regulations) [2007] EUECJ C-227/04 (11 September 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C22704.html Cite as: [2007] ECR I-6767, [2007] EUECJ C-227/04, [2007] EUECJ C-227/4 |
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(Appeal Officials Transfer of pension rights Professional activities prior to entering the service of the Communities Calculation of the years of pensionable service Article 11(2) of Annex VIII to the Staff Regulations General implementing provisions Principle of non'discrimination Principle of equal treatment)
In Case C-227/04 P,
APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 28 May 2004,
Maria-Luise Lindorfer, an official of the Council of the European Union, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, avocats,
appellant,
the other party to the proceedings being:
Council of the European Union, represented by F. Anton and M. Sims-Robertson, acting as Agents,
defendant at first instance,
composed of V. Skouris, President, P. Jann, A. Rosas, R. Schintgen, E. Juhász (Rapporteur) and J. Klučka, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, M. Ilešič, J. Malenovský, U. Lõhmus, E. Levits and A. à Caoimh, Judges,
Advocate General: F.G. Jacobs, subsequently E. Sharpston,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure,
after hearing the Opinion of Advocate General Jacobs at the sitting on 27 October 2005,
having regard to the order of 26 April 2006 reopening the oral procedure and further to the hearing on 28 June 2006,
after hearing the Opinion of Advocate General Sharpston at the sitting on 30 November 2006,
gives the following
Legal context
'Officials shall be entitled to equal treatment under these Staff Regulations without reference, direct or indirect, to race, political, philosophical or religious beliefs, sex or sexual orientation, without prejudice to the relevant provisions requiring a specific marital status.'
'An official who has completed at least 10 years' service shall be entitled to a retirement pension. ...
The maximum retirement pension shall be 70% of the final basic salary carried by the last grade in which the official was classified for at least one year. It shall be payable to an official who has completed 35 years' service reckoned in accordance with Article 3 of Annex VIII. Where the number of years' service is less than 35, the above maximum shall be reduced proportionately.
...
The pensionable age shall be 60 years.'
'1. Benefits paid under this pension scheme shall be charged to the budget of the Communities. Member States shall jointly guarantee payment of such benefits in accordance with the scale laid down for financing such expenditure.
...
2. Officials shall contribute one third of the cost of financing [the Community] pension scheme ...
[...].
4. Should an actuarial assessment of the pension scheme, carried out by one or more qualified experts at the request of the Council, show the contributions of officials to be insufficient to finance one third of the benefits payable under the pension scheme, the budgetary authorities shall, acting in accordance with the budgetary procedure and after consulting the Staff Regulations Committee provided for in Article 10, determine what changes are to be made to the rates of contributions or to the retirement age.'
'A retirement pension shall be payable on the basis of the total number of years of pensionable service acquired by the official. Each year of service reckoned as provided for in Article 3 shall entitle him to one year of pensionable service and each complete month to one twelfth of a year of pensionable service.
The maximum number of years of pensionable service which may be taken into account for the calculation of retirement pension rights shall be 35.'
'Notwithstanding the provisions of Article 2, an official who has less than 35 years of pensionable service at the age of 60 years and who continues to acquire pension rights under that Article 3 shall, in respect of each year of service between the age of 60 years and the age when he begins to draw retirement pension, be entitled to an increase in pension equal to 5% of the amount of pension rights acquired by him at the age of 60 years, but so that his total pension shall not exceed 70% of his final basic salary as referred to in the second or third paragraph, as the case may be, of Article 77 of the Staff Regulations.
...'
'3. The number of annual contributions to be credited shall be calculated by converting:
the amount transferred (A) into a theoretical pension (P) varying with the actuarial values (V) laid down in Article 39 of Annex VIII to the Staff Regulations ..., according to the formula P = A/V,
this pension (P) into statutory annual pension contributions (C) varying with the basic annual salary (S), which, for officials, corresponds to the grade of establishment ... according to the formula C = P x 100/S x 2.
However, the number of annual contributions to be credited may in no event exceed the number of years during which the person concerned was a member of non-supplementary schemes before entering the service of the Communities.
4. The amount transferred to the account of the Communities in a currency other than the Belgian franc shall, in calculating the years of pensionable service to be credited, be converted into Belgian francs in accordance with the following procedure:
...
(b) in the case of an official established after 31 December 1971 ... the amount transferred shall be divided in proportion to the duration of the periods in which the pension rights corresponding to such amount were acquired, i.e. the duration of the period prior to 1 January 1972, and the duration of the period following 31 December 1971.
The part sum corresponding to the period prior to 1 January 1972 shall be converted on the basis of the parities accepted by the International Monetary Fund in force on 31 December 1971.
The part sum corresponding to the period following 31 December 1971 shall be converted on the basis of the average updated rate fixed by the Commission for the period from 1 January 1972 to the date of the official's establishment ...' (hereinafter 'variant (i)').
However, at the request of the official ... the amount (A) taken into account for the purposes of calculation shall be converted on the basis of the updated rate in force on the date of transfer. In this case, the salary (S) and actuarial value (V) to be taken into account in calculating the years of pensionable service to be credited shall be [respectively] the remuneration corresponding, for officials, to the grade of establishment ... in force on the date of the transfer and the actuarial value corresponding to the official's [...] age on that date ...' (hereinafter 'variant (ii)').
Age |
Men |
Women |
30 |
9,667 |
10,269 |
31 |
9,811 |
10,426 |
32 |
9,956 |
10,586 |
33 |
10,102 |
10,746 |
34 |
10,249 |
10,908 |
35 |
10,397 |
11,071 |
36 |
10,546 |
11,236 |
37 |
10,695 |
11,402 |
38 |
10,846 |
11,569 |
39 |
10,998 |
11,739 |
40 |
11,154 |
11,912 |
41 |
11,308 |
12,034 |
42 |
11,465 |
12,261 |
43 |
11,625 |
12,441 |
44 |
11,788 |
12,626 |
45 |
11,955 |
12,816 |
46 |
12,127 |
13,013 |
47 |
12,302 |
13,215 |
48 |
12,480 |
13,422 |
49 |
12,661 |
13,633 |
50 |
12,847 |
13,850 |
Facts
The action before the Court of First Instance and the judgment under appeal
'76 First, the comparisons which [Ms Lindorfer] makes in order to show the soundness of her allegations are wholly inconclusive. Thus, in the first table she provides ..., she compares her situation with that of an official whose sex, age and classification in step on recruitment are different to hers, despite the fact that those elements are taken into account in the calculation of the number of additional years of pensionable service. In addition, as the Council correctly states in its reply to one of the Court's written questions, it is by no means established that [Ms Lindorfer] took the same date to make the calculations in that table. The other comparisons she made ... are no more acceptable since they are based on false premises. Thus, the calculations which she puts forward are marred by the fact that she applies variant (i) to amounts expressed in different national currencies obtained by converting the same amount transferred expressed in Austrian schillings on the basis of 'current rate[s]' corresponding apparently to rates of exchange between the euro and those national currencies applicable since 1 January 1999. It is evident that, during the period of 27 years of activities before entering the service of the Communities relied on by [Ms Lindorfer], changes, sometimes significant, occurred in the exchange rates between those various national currencies. It is in addition noteworthy that, for her example of the application of variant (i) to the amount expressed in Belgian francs, [Ms Lindorfer] does not make a conversion beforehand on the basis of the 'current rate' and that, for her example of the application of that variant to the amount expressed in Greek drachmas, she seems to use the rate of exchange between the euro and the Greek drachma applicable since 1 January 2001. Moreover, in the case of amounts converted into Greek drachmas, Spanish pesetas and Portuguese escudos, she seems to make her calculations as at 1 January 1999.
77 Secondly, it is clear from the explanations provided by the Council that the fact that the application of variant (i) to an amount transferred from a pension fund of a 'weak currency' country may be more advantageous than the application of variant (ii) to an amount transferred from a pension fund of a 'strong currency' country is the consequence not of the Community rules but of the fluctuation of the various national currencies, or of circumstances external to the action of the Communities. It must be pointed out, accordingly, that the Spanish peseta and the Portuguese escudo, used by [Ms Lindorfer] in her comparative examples, were devalued several times in the course of the 1990s.'
'81 [...] [Ms Lindorfer] cannot validly argue that, in the Community pension scheme, there is no distinction according to sex as regards officials' contributions and the age required to obtain a retirement pension.
82 First, she compares, in the same way, two categories of officials whose situations differ, that is to say, first, officials who procure the transfer to the Communities of the actuarial equivalent or redemption value of retirement pension rights which they have acquired in respect of activities before they entered the Communities' service and, second, those who contribute to the Community pension scheme on account of their service in a Community institution.
83 Secondly, and in any event, the use of factors which vary according to sex and age in order to calculate the number of additional years of pensionable service to be credited is objectively justified by the need to ensure sound financial management of the Community pension scheme. An official who, pursuant to Article 11(2) of Annex VIII to the Staff Regulations, transfers to the Community budget the actuarial equivalent or redemption value of pension rights acquired before joining the staff of the Communities, obtains in exchange a rate of future benefits under the Community pension scheme in the form of additional years of pensionable service credited, the extent of the right being dependent on the number of those additional years of pensionable service. In order to determine the current value of that right the Community institution concerned must take account of a series of factors, including the probable length of time during which the capital transferred will be present in the Community budget, the official's expected career progress, the likelihood that the benefits in question will be paid out and the probable length of time over which such payments will be made. It is clear that those factors are dependent in particular on the official's sex and on his or her age at the time of joining the Community pension scheme. On the one hand, it is an established fact that, statistically, women live longer than men. On the other, the likelihood that a person who enters the Community service long before retirement age will die before reaching that age is greater than in the case of the person recruited at an age close to that at which he or she will be able to claim pension benefits. Furthermore, such a person will leave the capital transferred at the disposal of the Community budget for longer than an official nearer retirement age. In other words, factors such as the duration of service between date of recruitment and date of retirement and the probable length of time, calculated on a statistical basis, during which the official will receive a Community retirement pension have a direct influence on the Community's financial responsibility towards each official individually concerned, and sound financial management of the Community pension scheme requires those factors to be taken into account and properly assessed. The Council is therefore right to take account in its conversion formulae of actuarial factors connected with the official's age and sex.'
Procedure before the Court
Forms of orders sought by the parties
set aside the judgment under appeal;
annul the contested decision and, so far as necessary, annul the Council Decision of 31 May 2001 rejecting her complaint;
order the Council to re-determine the years of pensionable service to be credited, and
order the Council to pay the costs at first instance and on appeal.
dismiss the appeal, and
order Ms Lindorfer to pay the costs.
The appeal
The first ground of appeal, alleging, first, breach of the principle of non-discrimination on account of sex and, second, inadequate statement of reasons in that regard in the judgment under appeal
Arguments of the parties
Findings of the Court
The second ground of appeal, alleging (i) breach of the principle of equal treatment in the sense that officials commencing their careers later are treated less favourably; and (ii) inadequate statement of reasons in that regard in the judgment under appeal
Arguments of the parties
Findings of the Court
The third ground of appeal, alleging, first, breach of the principle of equal treatment arising from the application of the conversion formulae and, second, the lack of a lower threshold on the number of years of pensionable service awarded
Arguments of the parties
Findings of the Court
The effects of setting aside, in part, the judgment under appeal
Costs
On those grounds, the Court (Grand Chamber) hereby:
1. Sets aside the judgment of the Court of First Instance of the European Communities of 18 March 2004 in Case T-204/01 Lindorfer v Council tothe extent that it dismissed MsLindorfer's action on the ground that there was no discrimination based on sex;
2. Annuls the Decision of the Council of the European Union of 3 November 2000 calculating the number of Ms Lindorfer's years of pensionable service;
3. Dismisses the remainder of the appeal;
4. Orders the Council of the European Union to pay the costs at first instance and on appeal.
[Signatures]
* Language of the case: French.