JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

13 October 2015 ( *1 )

‛Appeal — Cross-appeal — Civil Service — Officials — Pensions — Transfer of national pension rights — Proposals concerning additional pensionable years — Act not having an adverse effect — Inadmissibility of the action at first instance — Article 11(2) of Annex VIII to the Staff Regulations — Legal certainty — Legitimate expectations — Equal treatment’

In Case T‑104/14 P,

APPEAL against the judgment of the European Union Civil Service Tribunal (Full Court) of 11 December 2013 in Verile and Gjergji v Commission (F‑130/11, ECR-SC, EU:F:2013:195 ), seeking to have that judgment set aside,

European Commission , represented by J. Currall, G. Gattinara and D. Martin, acting as Agents,

appellant,

the other parties to the proceedings being

Marco Verile , residing in Cadrezzate (Italy),

and

Anduela Gjergji , residing in Brussels (Belgium),

represented initially by D. de Abreu Caldas, J.‑N. Louis and M. de Abreu Caldas, and subsequently by J.‑N. Louis and N. de Montigny, lawyers,

applicants at first instance,

THE GENERAL COURT (Appeal Chamber)

composed of M. Jaeger, President, H. Kanninen and D. Gratsias (Rapporteur), Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 6 May 2015,

gives the following

Judgment

1By its appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Commission asks the General Court to set aside the judgment of the European Union Civil Service Tribunal (Full Court) of 11 December 2013 in Verile and Gjergji v Commission (F‑130/11, ECR-SC, EU:F:2013:195; ‘the judgment under appeal’), by which the Civil Service Tribunal annulled the ‘decisions’ of the Commission of 19 and 20 May 2011 addressed to Anduela Gjergji and Marco Verile, respectively.

The facts of the dispute, the proceedings at first instance and the judgment under appeal

Facts of the dispute

2The facts of the dispute are set out in paragraphs 14 to 20 (as regards Mr Verile) and 21 to 27 (as regards Ms Gjergji) of the judgment under appeal.

3On 17 November 2009, Mr Verile applied for the transfer of the pension rights he had acquired in Luxembourg before entering the service of the Commission and, on 5 May 2010, the Commission sent him an initial proposal concerning additional pensionable years. That proposal stated that the number of pensionable years with which he was to be credited under the EU pension scheme, in respect of the previous period of service, was seven years and nine months. It also stated that since the excess capital sum could not be converted to pensionable years, it would be reimbursed to Mr Verile.

4Mr Verile accepted the abovementioned proposal on 7 September 2010, but on 20 May 2011 he received a second proposal which annulled and replaced the first proposal. The number of pensionable years with which he was to be credited under the EU pension scheme in the second proposal was the same as in the first but the excess capital sum to be reimbursed to Mr Verile had been reduced. The reason given by the Commission to justify this change was that the first proposal was based on a calculation carried out by reference to the General Implementing Provisions (GIP) for Articles 11 and 12 of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), adopted by Commission Decision C(2004) 1588 of 28 April 2004, published in Administrative Notices No 60-2004 of 9 June 2004 (‘the 2004 GIP’), and that a fresh calculation was necessary following the adoption of Commission Decision C(2011) 1278 of 3 March 2011 on the general implementing provisions for Articles 11 and 12 of Annex VIII to the Staff Regulations on the transfer of pension rights, published in Administrative Notices No 17-2011 of 28 March 2011 (‘the 2011 GIP’).

5Mr Verile accepted the second proposal but subsequently lodged a complaint requesting the appointing authority to withdraw it and transfer his pension rights on the basis of the 2004 GIP. That complaint was rejected by decision of the appointing authority of 19 August 2011.

6Like Mr Verile, Ms Gjergji applied, on 1 July 2009, for the transfer of the pension rights she had acquired in Brussels before entering service and received an initial proposal concerning additional pensionable years. That proposal stated that the number of pensionable years with which she was to be credited under the EU pension scheme was five years, five months and two days. It also stated that a sum would be reimbursed to her in respect of the excess of the capital sum to be transferred. She accepted the first proposal on 7 September 2010, but on 19 May 2011 she received a second proposal which annulled and replaced the first proposal. The second proposal reduced the number of pensionable years with which she was to be credited under the EU pension scheme to 4 years, 10 months and 17 days and no longer contained provision for the reimbursement of any excess of the capital sum to be transferred.

7Ms Gjergji accepted the second proposal but thereafter lodged a complaint against it. The complaint also contained a request, under Article 90(1) of the Staff Regulations, for her pension rights acquired in Belgium to be transferred on the basis of the first proposal. Both the complaint and the request were dismissed by decision of 22 August 2011.

Proceedings at first instance and the judgment under appeal

8On 2 December 2011, Mr Verile and Ms Gjergji brought an action before the Civil Service Tribunal, registered under reference F‑130/11, seeking annulment of the second proposals sent to them by the Commission as well as the decisions rejecting their complaints against those proposals.

9After finding that the decisions rejecting the complaints lacked any independent significance and that, consequently, the action had to be regarded as being directed only against the second proposals (paragraphs 32 and 33 of the judgment under appeal), the Civil Service Tribunal examined the admissibility of the action, which was disputed by the Commission, and held that it was admissible. Paragraphs 37 to 55 of the judgment under appeal, which deal with this question, are worded as follows:

‘37

It should be noted first of all that the system for the transfer of pension rights, as set out in Article 11(2) of Annex VIII to the Staff Regulations, seeks, by enabling the European Union scheme to be coordinated with the national schemes, to facilitate movement from national employment, whether public or private, and also from international employment, to the European Union administration and thus to ensure that the Union has the best possible chance of being able to choose qualified staff who already possess suitable experience (order of 9 July 2010 in Joined Cases C‑286/09 and C‑287/09 Ricci , paragraph 28 and the case-law cited).

38In that context, the General Court held in particular that proposals concerning additional pensionable years sent to officials for agreement are “decisions” which have a double effect: first of preserving for the official concerned, in the original legal system, the amount of pension rights he acquired in the national pension scheme and, secondly, of ensuring that, in the European Union legal order and subject to the fulfilment of certain additional conditions, those rights are taken into account in the European Union pension scheme (judgment of 18 December 2008 in Joined Cases T‑90/07 P and T‑99/07 P Belgium and Commission v Genette , paragraph 91 and the case-law cited).

39The Tribunal also, for its part, has held that proposals concerning additional pensionable years constitute unilateral acts which do not call for any other measure on the part of the competent institution and which adversely affect the official concerned. If that were not so those acts would, as such, not be open to challenge before the courts or, at least, could not be the subject of a complaint or an action until a later decision was taken, at an unspecified date, by an authority other than the appointing authority. That analysis does not respect either the right of officials to effective judicial protection or the requirements of legal certainty inherent in the rules on time-limits laid down in the Staff Regulations (order of 10 October 2007 in Case F‑17/07 Pouzol v Court of Auditors , paragraphs 52 and 53).

41It is therefore clear from the case-law cited in paragraphs 38 to 40 above that the proposal concerning additional pensionable years which the competent services of the Commission submit for an official’s agreement, during the various stages of the administrative procedure described in paragraph 35 above, is a unilateral act, separable from the procedural framework in which it is taken, adopted under circumscribed powers attributed ex lege to the institution, since it stems directly from the individual right which Article 11(2) of Annex VIII to the Staff Regulations confers expressly on officials and other servants when they enter the service of the European Union.

42The exercise of those circumscribed powers requires the Commission to draw up a proposal concerning additional pensionable years which is based on all the relevant data which it is required to obtain from the national or international authorities concerned specifically in the context of close coordination and sincere cooperation between these authorities and the Commission services. Such a proposal, therefore, cannot be regarded as the manifestation of a “mere intention” of the service of the institution to provide information to the official concerned, pending receipt of his agreement followed by receipt of the capital sum enabling the institution to credit the additional years of pensionable service. On the contrary, such a proposal constitutes the necessary commitment on the part of the institution to proceed correctly in implementing effectively the official’s right to transfer of his pension entitlements which he has exercised in submitting his request for transfer. The transfer of the updated capital sum to the European Union pension scheme, for its part, constitutes the honouring of a separate obligation incumbent on the national or international authorities, which is necessary in order to carry out in full the procedure for the transfer of pension rights to the European Union pension scheme.

43Thus, the exercise of circumscribed powers in the implementation of Article 11(2) of Annex VIII to the Staff Regulations requires the Commission to employ all necessary diligence in order to enable an official who has requested the application of Article 11(2) of Annex VIII to the Staff Regulations to give his agreement to the proposal concerning additional pensionable years in full knowledge of the facts, both as regards the data required in order to calculate the number of additional pensionable years for purposes of the Staff Regulations to be credited and as regards the rules governing, “at the date of application for a transfer”, the method for such calculation, as expressly stated in Article 11(2) of Annex VIII to the Staff Regulations, which provides that the institution in which the official serves is to “determine” by means of general implementing provisions “the number of years of pensionable service” with which he is to be credited, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer.

44It is clear from all the foregoing that a proposal concerning additional pensionable years is an act adversely affecting the legal situation of an official who has made a request for transfer of his pension rights.

45That conclusion is also supported by the following considerations.

46In the first place, codifying previous practice in clauses contained in proposals of additional pensionable years, Article 8 of the 2011 GIP now expressly provides that the agreement which the official is requested to give to the proposal concerning additional years of pensionable service, once given, is “irrevocable”, confirming an earlier practice which was written into clauses contained in proposals concerning additional years of pensionable service. However, the irrevocable nature of the official’s agreement once given is justified only if the Commission, for its part, has submitted to the person concerned a proposal whose content has been calculated and put forward with all due care and which is binding on the Commission in so far as it obliges it to carry out the transfer process on that basis where the person concerned gives his agreement.

47Secondly, the proposal concerning additional pensionable years is made, in principle, on the basis of a method of calculation which is the same as the one applying at the time when the European Union pension scheme receives in full the capital sum definitively transferred by the national or international fund holding the funds.

50Fourthly and lastly, it cannot be argued that, as the Commission contends, the proposals concerning additional pensionable years are only preparatory acts, on the ground that Article 11(2) of Annex VIII to the Staff Regulations requires the number of additional pensionable years to be calculated “on the basis of the capital transferred”.

51In that regard, it should be noted first of all that it is clear from the wording of Article 11(2) of Annex VIII to the Staff Regulations that the institution concerned is to “determine” the number of years of pensionable service initially “by means of general implementing provisions”, “taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer” and that it then is to take into account the number of years of pensionable service thus determined to be credited under the European Union pension scheme “on the basis of the capital transferred”.

53Article 7(2) of the 2004 GIP, in common with the 2011 GIP, states that the number of years of pensionable service to be taken into account “is to be calculated … on the basis of the transferred amount”, according to the mathematical formula laid down in the first indent of Article 7(2).

54It is therefore clear from the abovementioned provisions that proposals concerning additional pensionable years are to be calculated on the basis of the transferable amount on the date of registration of the transfer, as notified by the competent national or international authorities to the Commission services, minus where appropriate the amount of capital appreciation between the date on which the transfer application is registered and the date of the actual transfer, and that that difference in monetary terms should not be borne by the European Union pension scheme.

55It follows from all the above considerations that the second proposals concerning additional pensionable years are an act adversely affecting the officials concerned and that the claims for annulment are therefore admissible.’

10Thereafter, the Civil Service Tribunal examined the first and second pleas in law together by which, according to the Tribunal (paragraph 72 of the judgment under appeal), the applicants essentially raised a plea of illegality as regards Article 9 of the 2011 GIP in so far as it provided for the retroactive application of those provisions to applications for the transfer of pension rights submitted after 1 January 2009, such as the applications of Mr Verile and Ms Gjergji.

11The Civil Service Tribunal held that the abovementioned plea of illegality was well founded (paragraph 108 of the judgment under appeal) and that, consequently, the initial proposals sent to Mr Verile and Ms Gjergji were not unlawful in any way and could not therefore be withdrawn, since the 2004 GIP were applicable to the applications for the transfer of pension rights submitted by Mr Verile and Ms Gjergji (paragraphs 109 and 110 of the judgment under appeal). The Civil Service Tribunal therefore annulled the ‘decisions’ of the Commission of 19 and 20 May 2011 addressed to Ms Gjergji and Mr Verile, respectively.

Procedure before the Court and forms of order sought by the parties

12By document lodged at the Court Registry on 17 February 2014, the Commission brought the present appeal. On 5 May 2014, Mr Verile and Ms Gjergji lodged a response.

13The written procedure was closed on 8 September 2014.

14By letter of 16 September 2014, Mr Verile and Ms Gjergji submitted a reasoned application under Article 146 of the Rules of Procedure of the General Court of 2 May 1991 to be heard during the oral stage of the procedure.

15Upon hearing the report of the Judge-Rapporteur, the General Court (Appeal Chamber) decided to open the oral procedure. By order of 13 April 2015, after the parties had been heard, the President of the Appeal Chamber ordered that the present case be joined to Cases T‑103/13 P, Commission v Cocchi and Falcione , and T‑131/14 P, Teughels v Commission , for the purpose of the oral procedure and the judgment.

16In the context of measures of organisation of procedure provided for in Articles 64 and 144 of the Rules of Procedure of 2 May 1991, the Court requested the Commission to answer certain questions and to provide certain documents. The Commission complied with those requests within the prescribed periods.

17The parties’ oral argument and replies to the questions put by the Court were heard at the hearing on 6 May 2015.

18By order of 8 June 2015, the General Court (Appeal Chamber) ordered the reopening of the oral procedure. By way of a measure of organisation of the oral procedure, it requested the parties to state their view on the possibility of the present case being disjoined from Cases T‑103/13 P and T‑131/14 P, for the purposes of the judgment.

19After the parties had been heard, the present case was disjoined from Cases T‑103/13 P and T‑131/14 P by decision of 7 July 2015. By decision of the same date, the Court again closed the oral procedure.

20The Commission claims that the Court should:

—

set aside the judgment under appeal;

—

order each party to bear its own costs in respect of the appeal;

—

order Mr Verile and Ms Gjergji to pay the costs in respect of the proceedings before the Civil Service Tribunal.

21Mr Verile and Ms Gjergji contend that the Court should:

Mr Verile and Ms Gjergji contend that the Court should:

—

dismiss the appeal;

—

order the Commission to pay the costs.

Consideration of the appeal

22In support of its appeal, the Commission relies on four pleas in law. The first plea alleges ‘misapplication of the concept of an act having adverse effect’ and, in essence, claims that the Civil Service Tribunal committed an error of law in holding that the action brought by Mr Verile and Ms Gjergji was admissible. The second plea alleges that the Civil Service Tribunal based the judgment under appeal on a point raised by it of its own motion which was not the subject of an exchange of arguments. The third plea alleges errors of law in the interpretation of Article 11(2) of Annex VIII to the Staff Regulations and the provisions relating to the transfer of pension rights acquired by an official before entering service. Lastly, the fourth plea alleges that the Civil Service Tribunal committed an error of law in considering that the rights of Mr Verile and Ms Gjergji were already ‘fully constituted’ at the time of the entry into force of the 2011 GIP.

23The first plea should be examined first.

24The Commission submits, in essence, that it was following an error of law that the Civil Service Tribunal held that a proposal concerning additional pensionable years, sent by an institution to its official or servant under Article 11(2) of Annex VIII to the Staff Regulations, was an act having adverse effect. It claims that such a proposal is an intermediate measure the objective of which is to prepare the decision on the transfer, to the EU pension scheme, of rights acquired by the persons concerned under another scheme. It follows that an act relating to the withdrawal of such a proposal is not an act having adverse effect either and cannot form the subject matter of an application for annulment. The Commission puts forward several arguments to challenge the various considerations relied on by the Civil Service Tribunal in support of its proposition.

25Mr Verile and Ms Gjergji dispute those arguments. They submit that the proposal concerning additional pensionable years is indeed an act having adverse effect, since it is akin to an ‘offer’ under national law which, from the moment it complies with the applicable law, becomes irrevocable. In their view, such a proposal is ‘an obligation arising from the implementation of a right to which the official is entitled under the Staff Regulations’.

26They also state that the proposal alters the legal situation of the official concerned, since it serves as the basis for determining all the parameters for the calculation of the updated capital sum and the corresponding number of pensionable years. Lastly, they contend that if the Commission’s arguments were accepted, the official concerned would be deprived of the right to an effective remedy.

27It should be recalled that, under Article 91(1) of the Staff Regulations, the Court of Justice of the European Union has jurisdiction in any dispute between the European Union and any person to whom the Staff Regulations apply regarding the legality of an act affecting such a person adversely.

29It is therefore necessary to examine whether a proposal concerning additional pensionable years, sent to an official or servant by his institution following the submission by the former of an application, under Article 11(2) of Annex VIII to the Staff Regulations, for the transfer of his pension rights acquired under a scheme other than the EU pension scheme, is an act having adverse effect for the purposes of Article 91(1) of the Staff Regulations.

30It must be stated in the present case that, although the Civil Service Tribunal pointed out, in paragraph 40 of the judgment under appeal, that it had already held that the proposal concerning additional pensionable years was an act adversely affecting the official concerned, it did not mention the binding legal effects, from when the proposal was made, which affected the legal situation of the person concerned.

32It is therefore necessary to consider — bearing in mind the considerations of the Civil Service Tribunal set out in paragraph 31 above — whether a proposal concerning additional pensionable years produces binding legal effects which directly and immediately affect the legal situation of the person to whom it is addressed and, if so, to identify those effects.

‘An official who enters the service of the [European Union] after:

—

leaving the service of a government administration or of a national or international organisation;

or

—

pursuing an activity in an employed or self-employed capacity;

shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the [European Union] the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.

In such case the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the [EU] pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.

Officials may make use of this arrangement once only for each Member State and pension fund concerned.’

34It must be noted that the phrase ‘by means of general implementing provisions’, which appears in the second subparagraph of this provision, cannot obviously be taken to mean that the determination of the number of pensionable years with which the person concerned is to be credited, after the transfer, to the EU pension scheme, of his pension rights acquired under another scheme, is directly carried out by the general implementing provisions that each institution is empowered to adopt. As their name suggests, general implementing provisions constitute an act of general application, adopted on the basis of Articles 11 and 12 of Annex VIII to the Staff Regulations.

35Thus, Article 11(2) of Annex VIII to the Staff Regulations must be understood as meaning that each institution is to determine, by means of general implementing provisions, the method for calculating the number of pensionable years to be taken into consideration under the EU pension scheme, after the transfer of a capital sum representing the rights acquired by an official under another pension scheme. This method must be based on the parameters set out in Article 11(2) of Annex VIII to the Staff Regulations, namely the official’s basic salary, his age and the exchange rate at the date of application for a transfer.

36The number of pensionable years to be actually taken into consideration for each official whose pension rights acquired under another scheme have been transferred, as a capital sum, to the EU pension scheme is laid down in an individual act, which applies the method stipulated in the general implementing provisions to the official’s specific case.

37It should also be recalled, as the Court pointed out in its order of 14 December 1993 in Calvo Alonso-Cortés v Commission (T‑29/93, ECR, EU:T:1993:115 , paragraph 46), that it follows from Article 11(2) of Annex VIII to the Staff Regulations that an EU institution cannot itself transfer pension rights acquired by an official in his own country, and cannot acknowledge any entitlement and determine the number of years of pensionable service to be credited under its own pension scheme in respect of the previous period of service, until the relevant Member State has established detailed rules for such transfers.

38As the Civil Service Tribunal itself acknowledges in paragraph 42 of the judgment under appeal, the transfer of the capital sum representing the pension rights acquired under another scheme is ‘necessary in order to carry out in full the procedure for the transfer of pension rights to the European Union pension scheme’.

39It is apparent from these considerations that the institution to which the person concerned is attached can only acknowledge his entitlement to have pensionable years credited to him under the EU pension scheme once the capital sum representing his pension rights acquired under another scheme has been transferred.

40Furthermore, it follows that the person concerned may only be credited with pensionable years if, and in so far as, it emerges from the application of the calculation method laid down in the general implementing provisions adopted by the institution in question that those pensionable years actually correspond to the capital sum transferred to the EU pension scheme, minus, in accordance with the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations, an amount representing capital appreciation between the date of the transfer application and the date of the actual transfer.

41In other words, the person concerned cannot be credited with additional pensionable years if those years do not correspond to a capital sum actually transferred to the EU pension scheme.

42In particular, the foregoing considerations also show that where, under Article 11(2) of Annex VIII to the Staff Regulations and the general provisions adopted for the purpose of its implementation, an EU institution specifically determines the number of pensionable years with which the person concerned is to be credited under the EU pension scheme after the transfer of the capital sum representing his pension rights acquired under another scheme, it exercises a circumscribed power and therefore does not enjoy any discretion.

43Next, it is necessary to examine the procedure that must be followed in the case of an application to transfer to the EU pension scheme pension rights acquired under another scheme, as that procedure transpires from both the applicable provisions and the explanations supplied by the Commission as regards its own practice.

44It should be borne in mind that the notification of a proposal concerning additional pensionable years is not expressly laid down in Article 11(2) of Annex VIII to the Staff Regulations. This provision only envisages an application from the person concerned, which leads to the payment to the European Union of the capital sum representing the pension rights he acquired by virtue of his previous activities and, following such payment, the determination — in accordance with the detailed rules provided for therein — of the number of pensionable years with which he is to be credited under the EU pension scheme.

45Since paragraphs 42 and 43 of the judgment under appeal must be understood as meaning that Article 11(2) of Annex VIII to the Staff Regulations gives the Commission ‘power’ to notify a proposal concerning additional pensionable years to the official who submitted an application for the transfer of pension rights he acquired under another scheme, it must be observed that it is not apparent from either Article 11(2) of Annex VIII to the Staff Regulations or any other provision or principle that the institution to which the person concerned sent his application for the transfer of his pension rights is required to provide him with a proposal stating the outcome in additional pensionable years of a possible transfer.

46In addition, there is no obligation to send a proposal for the purpose of a transfer of previously acquired pension rights under either the 2004 GIP or the 2011 GIP. Neither of these sets of provisions, which appear in the papers in the case at first instance, forwarded to the Court under Article 137(2) of the Rules of Procedure of 2 May 1991, provide for the notification — to the official or servant who applied for the transfer of his previously acquired pension rights — of a proposal concerning additional pensionable years.

47It therefore appears that the practice of sending such a proposal to the person concerned was adopted voluntarily by the Commission and, as the case may be, by other EU institutions. Obviously, the aim of this practice is to provide an official or servant who has expressed an interest in the possibility of transferring, to the EU pension scheme, his pension rights under another scheme, acquired by virtue of his activities before entering service, with the necessary information enabling him to decide, with full knowledge of the facts, whether or not to proceed with the transfer.

48It is apparent from the Commission’s explanations, summarised in paragraph 35 of the judgment under appeal and reproduced in its pleadings before the Court, that the procedure for transferring pension rights to the EU scheme comprises five stages in practice: (i) the person concerned submits an application for that purpose; (ii) the competent service of the Commission receives from the external pension fund in question notification of the amount of the capital sum that may be transferred and, on the basis of that information, sends a proposal to the person concerned; (iii) the person concerned refuses or accepts the proposal concerning additional pensionable years; (iv) if the proposal is accepted, the Commission requests and receives the transfer of the capital sum in question to the European Union; and lastly, (v) the Commission adopts a decision determining the rights of the person concerned. In the Commission’s view, only the last decision constitutes an act having adverse effect.

49Accordingly, in practice, the Commission has added to the three stages of the transfer procedure provided for in Article 11(2) of Annex VIII to the Staff Regulations (application from the person concerned; transfer of the capital sum; determination of the number of pensionable years to be credited) two further stages (proposal concerning additional pensionable years; acceptance by the person concerned who thereby gives his consent to the transfer). Consequently, it gives the person concerned the opportunity to receive, in the form of a ‘proposal’, as detailed information as possible regarding the extent of the rights to which he would be entitled in the event of the transfer, to the EU pension scheme, of his rights acquired under another scheme. It also allows him, after receiving that information, to bring an end to the procedure set in motion by his initial application, without any consequences whatsoever for him. Only if he confirms, after receipt of the proposal, his intention to proceed with the transfer of his pension rights acquired under another scheme will that transfer take place.

50It must be stated that, after the notification of a proposal concerning additional pensionable years, the legal situation of the person concerned remains the same. As pointed out in paragraphs 39 to 41 above, the person concerned cannot be credited with additional pensionable years until such time as the capital sum representing his pension rights acquired under another scheme has been transferred to the EU pension scheme. When the proposal is sent to the person concerned, this transfer has not yet taken place. Only once the person concerned, after receiving the proposal, has given his consent for the transfer procedure to move forward will the Commission request the transfer, to the EU pension scheme, of the capital sum representing the pension rights acquired by the person concerned under the external pension fund in question.

51Describing the Commission’s proposal as a ‘commitment’, as the Civil Service Tribunal did in paragraph 42 of the judgment under appeal, cannot lead to a different conclusion. According to the Civil Service Tribunal, a proposal concerning additional pensionable years constitutes ‘the necessary commitment on the part of the institution to proceed correctly in implementing effectively the official’s right to transfer of his pension entitlements which he has exercised in submitting his request for transfer’.

52As the Commission rightly points out, the obligation, for the institution concerned, to proceed correctly in implementing the right to transfer pension rights provided for in Article 11(2) of Annex VIII to the Staff Regulations flows directly from the wording of that provision. Even if the proposal concerning additional pensionable years had to be interpreted as a ‘commitment’ in the sense described by the Civil Service Tribunal, the institution in question would simply undertake to apply correctly Article 11(2) of Annex VIII to the Staff Regulations and the general implementing provisions to the situation of the concerned party. That obligation of the institution in question flows directly from the provisions at issue, even in the absence of any express commitment. Accordingly, it is not possible to infer from such a commitment any new obligation incumbent on the institution in question or, consequently, any alteration in the legal situation of the person concerned.

53Nor can it be accepted that a proposal concerning additional pensionable years alters the legal situation of the person concerned, in so far as it entails for that person a right to be credited, under the EU pension scheme, with the number of pensionable years stated in the proposal, if he gives his consent to the transfer to that scheme of pension rights he acquired under another scheme. Such a right would imply a corresponding obligation for the institution which issued the proposal, after completion of the transfer, to credit automatically to the person concerned the number of pensionable years stated in the proposal.

54Treating the proposal concerning additional pensionable years and the legal effects flowing therefrom in this way cannot, moreover, be reconciled with the wording of Article 11(2) of Annex VIII to the Staff Regulations.

55This provision refers, first of all, to an official in one of the situations mentioned therein being ‘entitled … to have paid to the [European Union] the capital value … of pension rights acquired’ by virtue of his previous activities. It goes on to state that ‘in such case the institution in which the official serves shall … determine … the number of years of pensionable service with which he shall be credited under the [EU] pension scheme in respect of the former period of service, on the basis of the capital transferred’.

56Consequently, in accordance with Article 11(2) of Annex VIII to the Staff Regulations, the actual determination of the number of pensionable years with which an official will be credited, after applying for the transfer to the EU pension scheme of his pension rights previously acquired under another scheme, is necessarily carried out after the transfer has in fact taken place, ‘on the basis of the capital transferred’. It is therefore not possible to consider that a proposal to calculate the number of pensionable years which, by its very nature, is notified prior to the transfer, can make such a determination.

57The case-law cited in paragraph 37 above and the considerations set out in paragraphs 38 to 42 support this conclusion.

58The number of pensionable years to be credited is the result of applying the method for converting the capital sum representing previous rights to pensionable years, laid down in the general implementing provisions adopted by the institution in question under Article 11(2) of Annex VIII to the Staff Regulations.

59If the view were to be taken that the Commission is required, in all cases, to credit an official with the number of pensionable years stated in the proposal, this could lead, in some cases, to the crediting of a different number of years than that resulting from the correct application of the method laid down in the relevant general implementing provisions. The reasons for the variation between the number of pensionable years stated in the proposal and that resulting from the application of the abovementioned method, whether due to a difference between, on the one hand, the value of the capital sum representing the rights acquired by the person concerned under another pension scheme, as notified to the Commission by the authorities with responsibility for that scheme and taken into account in the preparation of the proposal, and, on the other, the value (minus any capital appreciation between the date of the application and the date of the actual transfer) of the capital actually transferred, or the misapplication of the calculation method when preparing the proposal, are irrelevant. What matters is that, in accordance with Article 11(2) of Annex VIII to the Staff Regulations and the considerations set out in paragraphs 38 to 42 above, the Commission cannot credit the person concerned with a different number of pensionable years than that corresponding, pursuant to the conversion method laid down in the general implementing provisions, to the capital sum actually transferred to the EU pension scheme.

60The considerations of the Civil Service Tribunal set out in paragraphs 47, 48 and 50 to 54 of the judgment under appeal cannot lead to a different conclusion. In essence, the Civil Service Tribunal starts from the premiss that the value of the capital sum taken into consideration in order to prepare the proposal will be the same as the sum that must be taken into consideration after completion of the transfer, since, under the last sentence of the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations, ‘[the] amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer’ is not taken into account when determining the number of pensionable years with which the person concerned is to be credited under the EU pension scheme.

63That conclusion is not called into question by the other considerations in the judgment under appeal.

64In the first place, in paragraph 38 of the judgment under appeal, the Civil Service Tribunal relied on the fact that, in its judgment of 18 December 2008 in Belgium and Commission v Genette (T‑90/07 P and T‑99/07 P, ECR, EU:T:2008:605 , paragraph 91), the Court classified two proposals concerning additional pensionable years which had been notified by the Commission to the official concerned in that case as ‘decisions’.

66Furthermore, it must be recalled that, in contrast to the situation here, in the case giving rise to the judgment in Belgium and Commission v Genette , cited in paragraph 64 above ( EU:T:2008:605 ), the official concerned had accepted the proposals concerning additional pensionable years which had been sent to him and his pension rights acquired before entering the service of the Commission under the Belgian pension scheme had already been transferred to the EU pension scheme, before he brought his action (judgment in Belgium and Commission v Genette , cited in paragraph 64 above, EU:T:2008:605 , paragraph 12).

67In addition, his action did not relate to the lawfulness of the decision adopted following the transfer, which credited additional pensionable years under the EU pension scheme. In the acts to which the action in that case referred, the Commission had rejected an application from the person concerned, filed after completion of the transfer, seeking permission to withdraw his previous application for transfer of his pension rights, submitted under a then-repealed Belgian law, and to submit a fresh application, in order to take advantage of a new Belgian law which he considered to be more advantageous to him (judgment in Belgium and Commission v Genette , cited in paragraph 64 above, EU:T:2008:605 , paragraphs 12 and 92).

68The Court held that the application rejected by the contested acts was based on a challenge to the implementation, by the competent Belgian authorities, of the relevant Belgian legislation. Since the Commission had no jurisdiction to entertain such a challenge, the Court found that the contested acts in that case did not adversely affect the person concerned and, after setting aside the judgment of the Civil Service Tribunal, it dismissed the action as inadmissible (judgment in Belgium and Commission v Genette , cited in paragraph 64 above, EU:T:2008:605 , paragraphs 79 and 93 to 108).

69It follows that the judgment in Belgium and Commission v Genette , cited in paragraph 64 above ( EU:T:2008:605 ), dealt with a different question which arose long after the transfer, to the EU pension scheme, of the pension rights acquired in Belgium by the person concerned. When the action was brought, the transfer had actually been completed and neither its lawfulness nor the question whether the acts adopted in order to carry it out had adverse effect were at issue in that case.

70It follows that no useful guidance can be drawn from the judgment in Belgium and Commission v Genette , cited in paragraph 64 above ( EU:T:2008:605 ), with respect to the questions raised in this case.

71In the second place, in order to justify its finding that a proposal concerning additional pensionable years constituted an act having adverse effect, the Civil Service Tribunal referred to the right of officials to effective judicial protection, to the requirements of legal certainty ‘inherent in the rules on time-limits laid down in the Staff Regulations’ (paragraph 39 of the judgment under appeal), to the ‘purpose of the administrative procedure for the transfer of pension rights’, as well as to the ‘very essence of the official’s right under Article 11(2) of Annex VIII to the Staff Regulations to choose whether to transfer his pension rights or keep them in the original national or international pension fund’, which would be ‘destroy[ed]’ if the official concerned was required to challenge ‘the method whereby the Commission services calculated the number of additional pensionable years to which he is entitled’ only after completion of the transfer of his previously acquired pension rights (paragraph 49 of the judgment under appeal).

72First, as regards the right to effective judicial protection, it must be recalled that, under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in the second and third paragraphs of that article.

75Secondly, it must be stated that the Civil Service Tribunal failed to explain how the ‘requirements of legal certainty inherent in the rules on time-limits laid down in the Staff Regulations’ would be infringed if it were to be accepted that a proposal concerning additional pensionable years is not an act adversely affecting the person to whom it is addressed.

76Thirdly, as regards the purpose of the ‘administrative procedure for the transfer of pension rights’ and the ‘essence’ of the right conferred on officials by Article 11(2) of Annex VIII to the Staff Regulations, mentioned in paragraph 49 of the judgment under appeal, it must be pointed out, first of all, that in paragraph 91 of the judgment in Belgium and Commission v Genette , cited in paragraph 64 above ( EU:T:2008:605 ) and paragraph 49 of the judgment under appeal, the Court merely found, in essence, that an application for the transfer of pension rights under Article 11(2) of Annex VIII to the Staff Regulations gave rise to the adoption of decisions by the authorities managing the pension scheme to which the person concerned was affiliated before entering service as well as by the EU institution to which he was attached. The conclusions that the Civil Service Tribunal appears to have drawn from paragraph 91 of the judgment in Belgium and Commission v Genette , cited in paragraph 64 above ( EU:T:2008:605 ), are not at all apparent from that judgment.

78That provision thus seeks to ensure that EU officials may retain the rights which they have acquired in a Member State even though they may be limited, or even conditional or future, or insufficient to give rise to the immediate award of a pension, and also to ensure that account may be taken of those rights by the pension scheme to which the persons concerned are affiliated at the end of their careers, in this case the EU pension scheme. For those reasons it is clear that the ‘entitle[ment]’ mentioned in Article 11(2) of Annex VIII to the Staff Regulations is intended to confer upon EU officials a right which they may freely exercise (judgments of 20 October 1981 in Commission v Belgium , 137/80, ECR, EU:C:1981:237 , paragraphs 12 and 13, and Belgium and Commission v Genette , cited in paragraph 64 above, EU:T:2008:605 , paragraphs 89 and 90).

79However, it is not apparent from this case-law that Article 11(2) of Annex VIII to the Staff Regulations also requires that the person concerned must be able, before deciding whether or not to exercise his right to transfer his pension rights acquired under another scheme to the EU pension scheme, to ascertain definitively the number of pensionable years with which he will be credited after that transfer. Nor does this provision require that any dispute between the person concerned and his institution concerning the interpretation and application of the relevant provisions must be resolved by the EU judicature even before the person concerned has decided whether or not to transfer his pension rights acquired under another scheme to the EU pension scheme.

80It is true that the possibility of having the EU judicature define a position on the expected effects of a hypothetical transfer, to the EU pension scheme, of rights acquired under another scheme by an official who has not yet consented to such a transfer may be of certain interest to the official in question.

81It must be recalled, however, that Article 270 TFEU does not give the Courts of the European Union jurisdiction to issue advisory opinions; it only confers jurisdiction in any dispute between the European Union and its officials within the limits and under the conditions laid down in the Staff Regulations.

82It is indeed the Staff Regulations which provide in Article 91(1) thereof, that only an act having adverse effect can form the subject matter of an action for annulment, such as that brought by Mr Verile and Ms Gjergji in the present case. If the act against which the action was brought does not adversely affect the applicant, the action is inadmissible. Any interest the applicant may have in having the substance of the question raised by his action resolved is, in that regard, irrelevant.

83Furthermore, it must be pointed out that it is impossible for the person concerned to be aware of all the relevant parameters when he decides whether or not to exercise his right to have the pension rights he acquired under another scheme transferred to the EU pension scheme. He cannot foresee with any certainty how the EU pension scheme or the scheme to which he was previously affiliated will develop in the future. He must necessarily make his choice based partly on assumptions and forecasts which may well prove to be, either wholly or in part, incomplete, provisional or inaccurate.

84In the third place, the argument of the Civil Service Tribunal based on Article 8(5) of the 2011 GIP (paragraph 46 of the judgment under appeal) cannot lead to a different conclusion.

85That provision reads as follows:

‘A signed decision, taken by a staff member ordering payment to the European Union … of the capital sum representing his pension rights is, by its very nature, irrevocable.’

86It must be stated that this provision does not refer to the proposal concerning additional pensionable years, notified by the institution in question to the official interested in the possible transfer of his pension rights acquired under another scheme to the EU pension scheme. As pointed out in paragraph 46 above, the 2011 GIP do not make any provision for the notification of such a proposal.

87Article 8(5) of the 2011 GIP refers to the ‘decision’ of the person concerned ‘ordering payment to the European Union … of the capital sum representing his pension rights’. In other words, it concerns the definitive consent of the person concerned to the transfer, to the EU pension scheme, of the pension rights he acquired under another scheme.

88It is because of the practice established by the Commission itself that this definitive request takes the form of consent by the person concerned to the transfer of his previously acquired rights, consent given in response to the proposal fixing the number of pensionable years sent to him in reply to his initial application. The applicable provisions do not require the Commission to follow this practice, which gives the person concerned the opportunity, after receiving the proposal concerning additional pensionable years, to halt the steps taken following the initial application to transfer his pension rights.

89It must also be made clear that the consent of the person concerned must be understood as covering the continuance of the transfer procedure and not the content of the proposal. In other words, by giving consent following the notification of the proposal, as requested by the Commission, he is simply expressing his intention to proceed with the transfer of his previously acquired pension rights to the EU pension scheme. It follows from all of the considerations set out above that the number of additional pensionable years to which this transfer will give rise in favour of the person concerned will be determined only once the transfer has actually been completed and the person concerned may, where appropriate, challenge the decision adopted in that regard before the competent administrative and judicial bodies.

90Furthermore, Article 8(5) of the 2011 GIP simply sets out in express terms what is apparent, in any event, from the wording of Article 11 of Annex VIII to the Staff Regulations. If an official or servant, under paragraph 2 of this provision, has arranged for the transfer to the European Union of the capital sum representing his pension rights previously acquired under another pension scheme, this process, which entails the loss of his rights under that other scheme with, in return, an increase in the number of pensionable years taken into account under the EU pension scheme, is, in principle, irreversible. A further transfer of pension rights, from the EU pension scheme to another scheme, can only occur in the situations envisaged in Article 11(1) of Annex VIII to the Staff Regulations, all of which presuppose termination of the person concerned’s service.

92Nor can the arguments put forward by Mr Verile and Ms Gjergji lead to any other conclusion.

93In the first place, the argument that the proposal is akin to an ‘offer’ under national law (see paragraph 25 above) must be rejected.

94According to the case-law, the legal link between an official and the administration is based upon the Staff Regulations and not upon a contract (judgments of 19 March 1975 in Gillet v Commission , 28/74, ECR, EU:C:1975:46 , paragraph 4, and 22 December 2008 Centeno Mediavilla and Others v Commission , C‑443/07 P, ECR, EU:C:2008:767 , paragraph 60). It can be inferred from these decisions that the legal relations governed directly by the provisions of the Staff Regulations, such as, in the present case, those concerning the EU pension scheme, are not contractual in nature. Accordingly, concepts falling within the realm of Member States’ private law applicable to contracts, such as the concept of ‘offer’, are not relevant to the application of Article 11(2) of Annex VIII to the Staff Regulations.

95In the second place, it is also necessary to reject the argument that the notification of a proposal concerning additional pensionable years constitutes the ‘implementation of a right to which the official is entitled under the Staff Regulations’.

96It has already been observed in paragraphs 44 to 46 above that neither the Staff Regulations, nor the 2004 GIP, nor the 2011 GIP make any provision for the notification of such a proposal.

97In the third place, Mr Verile and Ms Gjergji submit that the proposal concerning additional pensionable years alters the legal situation of the person concerned, since ‘[that] decision serves as the basis for determining all the applicable general provisions and, therefore, all the parameters for the calculation of the updated capital sum and the corresponding number of pensionable years’.

98Suffice it to note that this argument is based on a false premiss. As Mr Verile and Ms Gjergji themselves recall, the 2011 GIP apply, as provided in Article 9 thereof, to applications for the transfer of pension rights registered by the Commission after 1 January 2009.

99The basis for determining whether the 2004 GIP or 2011 GIP apply is therefore the date of registration of the application for the transfer of pension rights and not the date of notification of a proposal concerning additional pensionable years.

100In the fourth and last place, it is also necessary to reject the argument of Mr Verile and Ms Gjergji that, in essence, the Commission deals with the substance of complaints against proposals concerning additional pensionable years, without stating that those complaints relate to acts having no adverse effect.

101It is sufficient to bear in mind, in that respect, that the conditions of admissibility of an action are a matter of public policy and the EU judicature must, where appropriate, examine them of its own motion and, against that background, dismiss the action as inadmissible if the act to which it relates is not an act having adverse effect (see, to that effect, judgment of 6 December 1990 in B . v Commission , T‑130/89, ECR, EU:T:1990:78 , paragraphs 13 and 14 and the case-law cited). The fact that the Commission, for reasons relating to its staff policy, deals with the substance of a complaint instead of rejecting it as inadmissible cannot lead to a different conclusion (see, to that effect, judgment in B . v Commission , EU:T:1990:78 , paragraph 16 and the case-law cited).

102It follows from all of the foregoing that the Civil Service Tribunal committed an error of law in considering that the second proposals sent by the Commission to Mr Verile and Ms Gjergji constituted acts having adverse effect and could form the subject matter of an action brought on the basis of Article 91 of the Staff Regulations.

103Consequently, the appeal must be upheld and the judgment under appeal set aside, without examining the other pleas relied on by the Commission.

Consideration of the action at first instance

104In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, where the decision of the Civil Service Tribunal is quashed, the General Court is itself to give judgment in the matter if the state of the proceedings permits a decision by the Court.

105In the present case, since the state of the proceedings permits a decision by the Court, the Court should give final judgment in the matter.

Admissibility

106It is necessary, in the first place, to examine the admissibility of the action, disputed by the Commission.

107It must be recalled that, under Article 21 of the Statute of the Court of Justice, the application initiating proceedings must indicate, inter alia, the subject matter of the dispute and contain the forms of order sought by the applicant. Furthermore, according to the case-law, the forms of order sought must be set out in a precise and unequivocal manner, since otherwise the Court would risk giving a ruling infra petita or ultra petita and disregarding the rights of the defendant (see order of 13 April 2011 in Planet v Commission , T‑320/09, ECR, EU:T:2011:172 , paragraph 22 and the case-law cited).

109In the present case, the forms of order sought in the action brought by Mr Verile and Ms Gjergji before the Civil Service Tribunal relate to the second proposals concerning additional pensionable years which the Commission sent to them. It follows from the considerations set out in the analysis of the Commission’s first ground of appeal that these proposals do not constitute acts having adverse effect which may form the subject matter of an action for annulment. Therefore, the heads of claim seeking annulment of the second proposals are inadmissible.

110However, the parties agree that Mr Verile and Ms Gjergji gave their consent to the continuance of the procedure for the transfer of their pension rights acquired prior to entering service, by indicating their agreement, as the Commission requested, to the second proposals.

111It is apparent from the Commission’s answers to the questions put to it by the Court and the documents it furnished at the Court’s request that the procedure for the transfer of the previous pension rights of Mr Verile and Ms Gjergji indeed continued and was completed.

112Thus, the capital sum representing the pension rights acquired by Mr Verile under a Luxembourg pension fund was received by the Commission on 16 September 2011. The Commission also produced an undated note addressed to Mr Verile informing him that the additional pensionable years with which he had been credited by reason of the transfer was seven years and nine months, as set out in both the first and second proposals sent to him (see paragraphs 3 and 4 above). In addition, it submitted documents showing that it had paid Mr Verile, in respect of the excess of the capital sum transferred, an amount slightly higher than that stated in the second proposal but significantly lower than that stated in the first proposal.

113As regards Ms Gjergji, the capital sum representing her pension rights acquired under a Belgian pension fund was received by the Commission on 9 December 2011. On 27 January 2012, the Commission sent Ms Gjergji a note informing her that the additional pensionable years with which she had been credited by virtue of the transfer was 4 years, 10 months and 17 days, which corresponds to what was stated in the second proposal sent to her (see paragraph 6 above).

114In those circumstances, the question arises whether the action brought by Mr Verile and Ms Gjergji before the Civil Service Tribunal, formally directed against the second proposals, may be regarded, in actual fact, as an action for annulment of the decisions concerning additional pensionable years adopted in respect of them following the transfer to the EU pension scheme of the capital sum representing their previously acquired pension rights.

116In Ms Gjergji’s case, the decision of the Commission crediting additional pensionable years following the transfer of the capital sum representing her pension rights acquired before entering service must necessarily be regarded as having been adopted after the date (2 December 2011) on which the action was brought before the Civil Service Tribunal.

117That decision could only be adopted after the Commission had received the capital sum representing the pension rights acquired by Ms Gjergji under the Belgian pension scheme, which occurred on 9 December 2011.

118Consequently, in Ms Gjergji’s case, when the action was brought before the Civil Service Tribunal, there was no decision which she could have challenged by way of an action for annulment. The adoption, while an action is in progress, of such a decision is, in this respect, irrelevant (see, to that effect, judgment of 10 July 1990 in Automec v Commission , T‑64/89, ECR, EU:T:1990:42 , paragraph 69, and order of 2 May 1997 in Peugeot v Commission , T‑90/96, ECR, EU:T:1997:63 , paragraph 38).

119Accordingly, the action before the Civil Service Tribunal must be dismissed as inadmissible, in so far as it was brought by Ms Gjergji.

120As regards Mr Verile, the exact date of the Commission’s decision crediting additional pensionable years by reason of the transfer, to the EU pension scheme, of the capital sum representing his pension rights acquired under the Luxembourg system, is not apparent from the replies of the Commission to the questions put by the Court or from the documents supplied by the former.

121Furthermore, the Commission did not produce a copy of that decision. Therefore, it is not clear whether it exists in written form.

122The Court nonetheless finds that the decision was adopted before the action was brought before the Civil Service Tribunal.

123The capital sum representing the pension rights acquired by Mr Verile under the Luxembourg pension scheme was received by the Commission on 16 September 2011. In the absence of any claim or information which would justify a delay in the adoption of the decision crediting additional pensionable years following that transfer, it seems reasonable to consider that the decision was adopted shortly after the transfer.

124The Court also notes that a stamp bearing the words ‘approval and date’ was affixed to the note for the attention of Mr Verile, mentioned in paragraph 112 above. This stamp included the approval of the ‘Case Officer’ responsible for the file, stating the date of 28 November 2011, as well as the approval of ‘Check 1’, stating the date of 1 December 2011. A box in that stamp containing the words ‘Check 2’ was struck through, which obviously suggests that a second check was not envisaged. It is thus possible to conclude that the preparation of this note was completed on 1 December 2011 at the latest.

125Furthermore, the note in question informs Mr Verile that a period of seven years and nine months ‘has been credited to [him]’ under the EU pension scheme, following receipt of the capital sum representing his pension rights under the Luxembourg pension scheme. It is thus apparent from the wording used that the decision crediting additional pensionable years to Mr Verile had already been adopted when the note was drawn up.

126It follows that, when the action was brought before the Civil Service Tribunal, there already existed, in respect of Mr Verile, a decision crediting additional pensionable years capable of forming the subject matter of an action for annulment.

128First, the content of the application and all of the arguments put forward therein show that, in short, Mr Verile intended to challenge the Commission’s assessment of the implications for him arising from the transfer, to the EU pension scheme, of the capital sum representing his pension rights acquired under the Luxembourg scheme.

129In particular, Mr Verile contended that the calculation of the additional pensionable years with which he was going to be credited by virtue of the transfer had to be carried out under the 2004 GIP, which were more advantageous to him in so far as they meant that he would be paid a higher amount in respect of the excess of the capital sum transferred. In that context, he argued that the provisions of the 2011 GIP, which provided for the application of the 2011 GIP to applications for the transfer of pension rights submitted after 1 January 2009, were unlawful. Obviously, this argument is relevant in relation to an application for annulment of the decision crediting additional pensionable years.

130Secondly, the wording of the second proposal sent to Mr Verile is virtually identical to the wording of the decision crediting additional pensionable years, adopted after completion of the transfer of the capital sum representing his pension rights acquired under the Luxembourg scheme. There is only a very slight difference between the excess capital sum mentioned in the proposal and the sum which was actually paid to him. This difference is undoubtedly due to the difference between the sum taken into account in order to prepare the proposal and the sum actually transferred, as is apparent from the documents in the case.

131It can therefore be considered that the proposal and the decision adopted after completion of the transfer form an integrated whole, as provided in the case-law cited in paragraph 108 above, so that an action formally brought against the first proposal may be regarded as also covering the second.

132This interpretation of the application is all the more justified because, as is apparent from paragraphs 65 to 70 above, the case-law of the Court has not hitherto clearly distinguished between a proposal concerning additional pensionable years, which is not an act having adverse effect, and the decision crediting additional pensionable years, which does constitute such an act and may form the subject matter of an action for annulment.

133Thirdly, it should also be recalled that the appointing authority’s conduct played a part in making Mr Verile believe that he had to formally direct his action against the second proposal and not against the decision crediting additional pensionable years, which was adopted following acceptance of that proposal and after completion of the transfer of the capital sum representing his previously acquired pension rights.

134The appointing authority did not inform Mr Verile that the complaint he had filed against the second proposal was not directed against an act having adverse effect (which is the only act capable of forming the subject matter of a complaint under Article 90(2) of the Staff Regulations) and that he had to wait for the adoption of such an act to be able to challenge it by way of a complaint. On the contrary, the appointing authority examined and rejected the substance of Mr Verile’s complaint (see paragraph 5 above), which could only be construed by him as an additional indication that the claim for annulment in his action had to be formally directed against the second proposal, which he had challenged by way of his complaint.

135Moreover, the Court finds that the requirements of Article 91(2) of the Staff Regulations — under which an action for annulment of an act having adverse effect is admissible only if the appointing authority has previously had a complaint against that act submitted to it pursuant to Article 90(2) thereof and if the complaint has been rejected by express or implied decision — were met to the requisite standard in this case.

136It is true that Mr Verile’s complaint was directed against the second proposal and was submitted and rejected before the adoption of the decision crediting additional pensionable years, in respect of his previous pension rights transferred to the EU pension scheme.

137However, it must be pointed out that, first, the content of that decision, as revealed by the note mentioned in paragraph 112 above and the other documents produced by the Commission, is virtually the same as that of the second proposal, to which the complaint relates; second, for that reason, the pleas and grounds of challenge put forward by Mr Verile, in both his complaint and his action, against the second proposal also apply to the decision; third, in the decision rejecting the complaint, the appointing authority examined and rejected all these grounds of challenge, suggesting that its response to a hypothetical second complaint, directed against the decision crediting additional pensionable years, would have been exactly the same; and, fourth and last, the appointing authority did not reject Mr Verile’s complaint as inadmissible, because it did not relate to an act having adverse effect, but examined and rejected it as to its substance.

138In those circumstances, it would be unreasonable and contrary to good faith for the Commission to require Mr Verile to submit a fresh complaint against the decision crediting additional pensionable years before bringing an action for annulment against that decision.

Substance

140Three pleas in law were put forward before the Civil Service Tribunal. They allege, first, error of law, infringement of Article 11(2) of Annex VIII to the Staff Regulations and, in essence, non-compliance with acquired rights; secondly, infringement of the principle that action must be taken within a reasonable period and of the principles of legal certainty and protection of legitimate expectations; and, thirdly, infringement of the principles of equal treatment, non-discrimination and proportionality.

141By these pleas, Mr Verile essentially claims that the 2011 GIP were unlawfully applied to applications for the transfer, to the EU pension scheme, of pension rights acquired under another scheme which were submitted after 1 January 2009, in other words, to transfer applications submitted even before the adoption and entry into force of the 2011 GIP.

142Provision for the application of the 2011 GIP to transfer applications submitted before those provisions entered into force is made in the third and fourth paragraphs of Article 9 thereof. The last sentence of the third paragraph of Article 9 of the 2011 GIP provides that the 2004 GIP will continue to apply ‘to the cases of staff members whose request for a transfer under Article 11(2) and (3) of Annex VIII to the Staff Regulations was registered before 1 January 2009’. The first sentence of the fourth paragraph of the same article provides that the ‘conversion coefficients (TrCoeff x ) laid down in Annex 1 shall apply from 1 January 2009’. It is therefore apparent from a combined reading of these two provisions that the transfer, to the EU pension scheme, of the capital sum representing the pension rights acquired by the person concerned under another scheme is carried out, if the transfer application was submitted after 1 January 2009, in accordance with the provisions of the 2011 GIP and not in accordance with those of the 2004 GIP, which continue to apply to applications submitted before that date.

First plea in law

143In order to justify the application of the 2011 GIP to transfers of pension rights applied for before those provisions entered into force, the Commission had relied — in its reply to Mr Verile’s complaint and in the proceedings before the Civil Service Tribunal — on the adoption of Council Regulation (EC, Euratom) No 1324/2008 of 18 December 2008 adjusting, from 1 July 2008, the rate of contribution to the pension scheme of officials and other servants of the European Communities ( OJ 2008 L 345, p. 17 ).

144Article 2 of Regulation No 1324/2008 provides that, with effect from 1 January 2009, the rate for the calculation of compound interest stipulated in Article 4(1) and Article 8 of Annex VIII to the Staff Regulations as well as in the fourth paragraph of Article 40 and Article 110(3) of the Conditions of Employment of Other Servants is set at 3.1%.

145The Commission’s argument, as revealed by its response to a measure of organisation of procedure before the Civil Service Tribunal, is therefore that, since the conversion coefficients laid down in the general implementing provisions for Article 11(2) of Annex VIII to the Staff Regulations are ‘directly dependent’ on the interest rate laid down in Article 8 of Annex VIII to the Staff Regulations, the amendment of the latter, which took place on 1 January 2009 with the entry into force of Regulation No 1324/2008, had ‘necessarily’ led on the same date to amendment of those conversion coefficients. The conversion coefficients laid down in the 2004 GIP thus became ‘obsolete’ and ‘devoid of legal basis’ on 1 January 2009, independently of any formal repeal of the 2004 GIP (see paragraph 67 of the judgment under appeal).

146Mr Verile submits that this argument is vitiated by an error of law, since the interest rate to which Article 2 of Regulation No 1324/2008 refers is not taken into account for the transfer of pension rights to the EU pension scheme, laid down in Article 11(2) of Annex VIII to the Staff Regulations.

147This argument must be upheld. Article 11(2) of Annex VIII to the Staff Regulations refers solely, for the detailed rules on converting the capital sum transferred to pensionable years, to the general implementing provisions adopted by each EU institution and makes no reference whatsoever to the interest rate set out in Regulation No 1324/2008.

148Even if the taking into consideration of this interest rate for the purpose of establishing the conversion coefficients for the application of Article 11(2) of Annex VIII to the Staff Regulations may seem logical or even necessary in order to ensure that the EU pension scheme is actuarially balanced, this could only come about through the amendment, by the institution in question, of the general implementing provisions for the abovementioned provision. It cannot be claimed that, in the absence of such an amendment, the adoption of Regulation No 1324/2008 is sufficient to render the general implementing provisions already in force obsolete and preclude their application.

149For these reasons and those set out in paragraphs 72 to 97 of the judgment under appeal, which the Court adopts as its own, the Commission’s argument summarised in paragraph 145 above must be rejected.

150However, contrary to Mr Verile’s contentions, it cannot be accepted that, by making provision in Article 9 of the 2011 GIP for the application of those provisions to applications for the transfer of pension rights submitted after 1 January 2009, the Commission infringed the acquired rights of persons who, like Mr Verile, had submitted such an application prior to the adoption of the 2011 GIP which had not yet culminated in the transfer, to the EU pension scheme, of the capital sum representing their rights acquired under another scheme.

151As explained above, in the analysis of the Commission’s first ground of appeal, neither the notification, to an official or servant who has submitted an application, of a proposal concerning additional pensionable years, nor, far less, the mere submission of such an application, alter the legal situation of the person concerned or produce binding legal effects. Accordingly, for an official or servant in the position of Mr Verile, there were no acquired rights capable of being infringed by the application, in their case, of the 2011 GIP.

154Therefore, the application of the 2011 GIP to a transfer of pension rights acquired under another pension scheme, such as Mr Verile’s transfer, applied for before the adoption of the 2011 GIP but carried out after those provisions entered into force, is not contrary to Article 11(2) of Annex VIII to the Staff Regulations and does not infringe the acquired rights of the person concerned.

155It follows from all of the above considerations that the first plea in law is unfounded and must be dismissed.

Second plea in law

156The second plea in law alleges infringement of the principle that action must be taken within a reasonable period and of the principles of legal certainty and protection of legitimate expectations.

157In support of this plea, Mr Verile relies on the fact that the first proposal concerning pensionable years sent to him was withdrawn by the Commission one year after being accepted, which constitutes an infringement of the principle that action must be taken within a reasonable period and of the principle of legal certainty.

158The principle of legal certainty applies to situations of the type at issue here only where EU rules apply to situations existing before their entry into force, assumptions which are not relevant to this case (see, to that effect, judgment of 11 July 2007 in Centeno Mediavilla and Others v Commission , T‑58/05, ECR, EU:T:2007:218 , paragraph 60 and the case-law cited).

159As regards the principle that action must be taken within a reasonable period, it must be recalled that although Mr Verile applied for the transfer of his pension rights acquired under the Luxembourg scheme on 17 November 2009, the transfer was only finally completed on 16 September 2011, with the receipt by the Commission of the capital sum transferred by the Luxembourg fund. There is nothing to suggest that either the Luxembourg fund or Mr Verile himself is responsible for this considerable delay (of almost two years).

160However, even if the delay in processing Mr Verile’s application constitutes an infringement, by the Commission, of the principle that action must be taken within a reasonable period, such an infringement does not justify the application in his case of the 2004 GIP instead of the 2011 GIP, as Mr Verile essentially claims. Indeed, there is nothing to suggest that if the Commission had processed Mr Verile’s application for the transfer of pension rights more quickly, the 2004 GIP would have been applied to his case, after the capital sum representing his pension rights acquired under the Luxembourg scheme had been transferred to the EU scheme.

161On the contrary, as is apparent from the copy, appearing in the documents in the proceedings before the Civil Service Tribunal, of a notice circulated on the Commission’s intranet site on 17 September 2010 addressed to all of its staff, the Commission drew the attention of all interested parties to the fact that the new general implementing provisions for Article 11(2) of Annex VIII to the Staff Regulations which had to be adopted would apply to all applications for the transfer of pension rights submitted after 1 January 2009. It also informed interested parties that the new general implementing provisions would take into account, in particular, the interest rate laid down in Regulation No 1324/2008.

162That notice also shows that quite a significant number of applications for the transfer of pension rights (more than 10000) had been registered by the Commission during the months prior to the circulation of the notice, which may explain the time which elapsed between the submission of Mr Verile’s transfer application (17 November 2009) and the notification to him of the initial proposal concerning additional pensionable years (5 May 2010).

163In those circumstances, it can be concluded that if the Commission had processed Mr Verile’s application and the approximately 10000 other applications submitted during the same period more quickly, then, at most, it would have realised that there was a need to amend the general implementing provisions for Article 11(2) of Annex VIII to the Staff Regulations in order to take account of the adoption of Regulation No 1324/2008 and, thus, would have circulated the notice mentioned in paragraph 161 above at an earlier point in time and, as the case may be, adopted new general implementing provisions earlier. By contrast, the Commission would not have adopted, in Mr Verile’s case, a decision crediting additional pensionable years pursuant to the 2004 GIP.

164In those circumstances, the alleged infringement of the principle that action must be taken within a reasonable period is irrelevant to Mr Verile’s action.

166Mr Verile contends that the first proposal sent to him stated that, although amendments had to be made to the detailed rules on the implementation of Article 11 of Annex VIII to the Staff Regulations, ‘[the number of pensionable years] credited following the transfer [would] not decrease’ (paragraph 88 of the application before the Civil Service Tribunal).

167Besides the fact that this initial proposal was withdrawn before the transfer was carried out and Mr Verile’s legal situation was not altered in any way, it must be pointed out that the sentence invoked by Mr Verile cannot be interpreted as meaning that the Commission undertook to apply the 2004 GIP to the transfer of Mr Verile’s pension rights. It simply means that, after completion of the transfer, any subsequent amendment of the general implementing provisions for Article 11(2) of Annex VIII to the Staff Regulations would have no effect on the number of pensionable years credited to the person concerned following the transfer.

168In the explanation of this plea set out in the application, Mr Verile also refers to assurances he claims were given to another official who had also submitted an application for the transfer of pension rights during the same period as him, assurances that the new general implementing provisions would not have any effect on his situation.

169Furthermore, reference is made in the notice mentioned in paragraph 161 above to ‘an unfortunate notification … in May 2010’. That notification was also produced by the Commission before the Civil Service Tribunal, at the latter’s request. It dates from 5 May 2010 and states, inter alia, that the ‘updated’ general implementing provisions ‘came into force on the first day of the month following their publication in Administrative Notices ’ and that ‘they shall apply only to new applications for transfer registered … after that date’.

171It follows that the second plea in law must also be rejected.

Third plea in law

172In support of the third plea in law, alleging infringement of the principles of equal treatment, non-discrimination and proportionality, Mr Verile argued before the Civil Service Tribunal that only the date of submission of the application for the transfer of pension rights had to be taken into account in order to determine which general implementing provisions applied. If that date was not taken into account, as an objective factor, the outcome of the transfer application and the applicable parameters would depend on the varying speed with which the national authorities and the EU institution in question processed the application.

173By way of a measure of organisation of procedure decided on by the Civil Service Tribunal, Mr Verile was asked to specify the category of official in relation to which he considered himself to be a victim of discrimination, as claimed in the third plea.

174He answered that he considered himself to be discriminated against in relation to officials and servants who had submitted an application for the transfer of their pension rights during the same period as that in which he had submitted his own application and in respect of whom, due to the fact that their national pension bodies had processed their files more quickly, the transfer to the EU pension scheme of the capital sum representing their pension rights acquired under national schemes had already been carried out ‘when the Commission decided to freeze all transfer procedures’.

175Before the Civil Service Tribunal, the Commission confirmed that, in less than 300 applications for the transfer of pension rights submitted after 1 January 2009, the capital sum had already been transferred by the national fund in question and the decision crediting additional pensionable years had already been adopted, on the basis of the 2004 GIP, when it realised that it was necessary to apply to such applications conversion coefficients taking account of the interest rate laid down in Regulation No 1324/2008. The Commission thus considered those decisions to be definitive and irrevocable.

178Mr Verile and the other officials in respect of whom the capital sum representing their pension rights acquired under another scheme had not been transferred to the EU pension scheme when the 2011 GIP came into force are not in the same legal situation as officials whose pension rights acquired before their entry into service had already, prior to that date, been transferred, in the form of a capital sum, to the EU pension scheme and in respect of whom a decision crediting additional pension years under the latter scheme had already been adopted. The first set of officials still had pension rights under another scheme while, for the second set, the transfer of the capital sum resulting in the extinguishment of those rights and the corresponding crediting of additional pensionable years under the EU pension scheme had already taken place.

179Such a difference in treatment is, moreover, based on an objective factor independent of the will of the Commission, namely, the speed with which the external pension scheme in question processed the application for the transfer of capital of the person concerned.

180As regards the principle of proportionality, suffice it to point out that this bears no relation to the arguments summarised in paragraph 172 above. Since Mr Verile did not put forward any other argument, it cannot be concluded that this principle was infringed in the present case.

181It follows that the third plea in law in the action before the Civil Service Tribunal must also be dismissed, as must the action in its entirety, in so far as it was brought by Mr Verile.

Costs

182Under Article 211(2) of the Rules of Procedure of the General Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court shall make a decision as to costs.

183Under Article 134(1) of those rules, which applies to the appeal procedure pursuant to Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

184However, under Article 211(3) of the rules, in proceedings brought by institutions, the institutions are to bear their own costs.

185In this instance, since the Commission’s appeal was held to be well founded and it was necessary to dismiss the action before the Civil Service Tribunal, it is appropriate, pursuant to the abovementioned provisions, to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1.Sets aside the judgment of the European Union Civil Service Tribunal (Full Court) of 11 December 2013 in Verile and Gjergji v Commission (F‑130/11);

2.Dismisses the action brought by Mr Marco Verile and Ms Anduela Gjergji before the Civil Service Tribunal in Case F‑130/11;

3.Orders Mr Verile, Ms Gjergji and the European Commission each to pay their own costs.

Jaeger

Kanninen

Gratsias

Delivered in open court in Luxembourg on 13 October 2015.

[Signatures]

( *1 ) Language of the case: French.