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Decision of the European Ombudsman closing his inquiry into complaint 374/2010/ELB against the European Parliament

Available languages: en

This complaint was treated as confidential. This document has therefore been anonymised.

  • Case: 0374/2010/ELB
    Opened on 15 Mar 2010 - Decision on 31 May 2011
  • Institution(s) concerned: European Parliament
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Fairness [Article 11 ECGAB]
  • Subject matter(s): Administration and Staff Regulations

The background to the complaint

1. The European institutions operate a pension scheme which is funded by monthly contributions from their employees. Persons who start working for the European institutions, and who already have pension rights acquired as a result of contributing to a national pension scheme, can request that the rights acquired in their national pension scheme be transferred to the European Union pension scheme ('the EU pension scheme'). If an institution receives such a request, it makes a calculation to determine the value, in terms of "pensionable years", of the pension rights accumulated at national level. Transfers of such rights are made possible by agreements between the EU institutions and the Member States.

2. The complainant, an official at Parliament, paid contributions into pension funds of Member State A. When he joined the European Parliament, there was still no agreement between the EU institutions and Member State A about the transfer of national pension rights to the EU pension scheme. As a result, he was not able to make such a transfer when he joined the EU civil service.

3. Subsequently, an agreement was reached between the EU institutions and Member State A allowing for the transfer of national pension rights to the EU pension scheme. Parliament gave officials from Member State A who were already working in Parliament the possibility to transfer any national pension rights they had into the EU pension scheme. This offer to transfer pension rights applied to persons who were already working in Parliament and remained valid for a limited period of six months. The complainant only found out about the possibility to transfer his pension rights after the period had expired. The complainant requested Parliament to reopen the possibility to transfer his national pension rights to the EU pension scheme. Following Parliament's refusal, he turned to the Ombudsman.

The subject matter of the inquiry

4. The complainant alleged that:

(1) Parliament should not have limited to six months the period during which staff could request a transfer of their national pension rights.

(2) Parliament failed to inform staff properly about the possibility to transfer state pension rights from Member State A.

5. The complainant claimed that:

(1) Parliament should reopen the possibility to transfer his national pension rights. The complainant claimed specifically that Parliament should uphold his request to transfer his national pension rights under the conditions prevailing at the time of his request.

(2) Parliament should properly have informed staff about the transfer of national pension rights.

The inquiry

6. On 10 February 2010, the complainant addressed his concerns to the Ombudsman. On 15 March 2010, the Ombudsman opened an inquiry and forwarded the complaint to Parliament, which then sent its opinion to the Ombudsman on 7 June 2010.

7. On 24 May 2010, the complainant sent additional information to the Ombudsman. In view of this information, the Ombudsman modified the first claim included in his inquiry. On 17 June 2010, he informed Parliament accordingly. On 2 September 2010, Parliament sent an additional opinion to the Ombudsman.

8. On 14 September 2010, the opinion and the additional opinion were sent to the complainant, who submitted his observations on 22 October 2010.

The Ombudsman's analysis and conclusions

A. Alleged wrongful limitation of the period to transfer national pension rights and related claim

Arguments presented to the Ombudsman

9. The complainant questioned whether there was a legal basis for limiting to six months the time during which requests to transfer pension rights could be made. No such time period is referred to in the Staff Regulations. It seemed to have been set out in the General Implementing Provisions. He underlined that no such limit was imposed by the competent national body.

10. In its opinion, Parliament explained that the complainant became a Parliament official on X. Subsequently, Parliament was informed that an agreement had been finally reached with the National Insurance authority of Member State A concerning the transfer of pension rights to the EU pension scheme. The Pensions and Social Insurance Unit sent an e-mail to all staff with the subject "Transfer of state pension rights from Member State A". A note was attached to the e-mail which informed officials of this new development and set a six-month deadline for transfer requests.

11. The complainant sent a request after the expiry of the deadline set in the notice. Parliament rejected his request.

12. Parliament explained that, according to Article 11(2) of Annex VIII to the Staff Regulations, officials are entitled to request previously acquired pension rights to be transferred to the EU pension scheme. The request must be between the date on which they take up their post, or the end of their probationary period, and the date on which they become eligible for payment of a retirement pension under the terms of Article 77 of the Staff Regulations[1]. Thus, according to Parliament, it is clear that the EU legislator intended from the outset to limit the time period within which an official could request such a transfer. In addition, Article 5(1)(5) of the General Implementing Provisions relating to Articles 11 and 12 of Annex VIII to the Staff Regulations, adopted on 28 August 2008, provides that "regardless of their status, staff must submit their application no later than six months after the end of the minimum period needed to qualify them for the right referred to in Article 77 of the Staff Regulations". Prior to a certain date, it was not possible to transfer pension rights from the National Insurance scheme of Member State A to the EU pension scheme because there were no national rules providing for this.

13. This fact, in combination with the reform of the Staff Regulations, led to a degree of uncertainty in the legal situation of officials from Member State A that started working at Parliament ten or more years ago. On the one hand, they did not have the possibility to request the transfer under the old rules because there was no agreement with the National Insurance authority of Member State A. On the other hand, the deadline set by the new Staff Regulations (ten years and six months from the moment of entry into service) to request such a transfer had expired. This particular situation, as well as the need to ensure that these officials recruited before and after 1 May 2004 were treated equally, led Parliament to introduce the six-month period on an exceptional basis. This was in order to allow those nationals, who had not been able to request a transfer previously, to do so. This temporary measure was not intended to become permanent because the EU legislator clearly wanted to limit the time available.

14. Parliament outlined that a period of six months gave members of staff sufficient time both to think about the possibility of transferring their pension rights and, if they choose to use this opportunity, to fill in a one-page application form. A six-month period during which to introduce transfer requests was used both in Article 1(2) of the General Implementing Provisions in force prior to 1 May 2004, as well as in Article 5 of the General Implementing Provisions of 28 August 2008 that replaced them. Moreover, the legality of such a time period was confirmed by the General Court in Case T-185/95 Sergio v Commission[2].

15. It follows that, by deciding to create a six-month time period to request transfers, Parliament did not act arbitrarily, but rather in the best interests of the concerned officials. In doing so, Parliament applied the usual time frame for such matters.

16. In his observations, the complainant pointed out that, according to Article 77 of the Staff Regulations, the period to request a transfer of pension rights is ten years and six months. To be treated equally, officials should have been granted the same period of time.

The Ombudsman's assessment

17. Parliament informed its staff of the possibility to transfer pension rights acquired under the National Insurance scheme of Member State A to the EU pension scheme. It stated the following:

"Officials, temporary and contractual staff who acquired pension rights under the National Insurance Scheme [of Member State A] are informed that it is now possible to transfer them to the [EU] pension scheme.

A. Officials, temporary or contractual staff who are not entitled to a pension pursuant to Article 77 of the Staff Regulations[3] and who, before entering the service of the [EU], acquired pension rights under the National Insurance Scheme [of Member State A] may apply in writing for these rights to be transferred to the [EU] scheme. ... Applications must be received by the Pensions Service within six months of the date on which the applicant completes the period of service necessary to generate entitlement to [an EU] pension...

B. Officials and agents who, at the date of this notice, are no longer in a position to apply for the transfer of their pension rights pursuant to paragraph A above must submit their application within six months of the date of publication of this notice." (Emphasis added)

18. The complainant was recruited by Parliament in XXXX. Therefore, paragraph B of the notice applied to his situation. He requested the transfer of his national pension rights after the expiry of the six-month period.

19. The Ombudsman notes that the length of time given to officials and agents to make a decision as regards the transfer of their pension rights should take into account the complexity of the issue. It should give them enough time to understand the pros and cons of such a decision and to look for advice if needed. He notes that the case-law of the Union Courts considers a six-month deadline as reasonable for the transfer of pension rights[4] for persons entering the EU civil service. In the present case, the Ombudsman considers that six months was a reasonable period of time to consider the offer made by Parliament. It was all the more reasonable given that the notice specified that staff do not have to take a final decision until they have received the calculation showing how the transfer would affect their pension. In addition, he notes that the complainant does not put forward any exceptional circumstances that might justify reopening the six-month period. The Ombudsman therefore finds no maladministration by Parliament as regards this allegation and the related claim.

B. Alleged provision of inappropriate information concerning the transfer and related claim

Arguments presented to the Ombudsman

20. According to the complainant, a single e-mail, with an unsigned and undated note attached to it, no reminders, and no posting on Parliament's Intranet, do not constitute effective administration of such an important procedure. In contrast, the Commission informed its staff about the additional period to request transfers and sent two reminders. In addition, the Commission sent a full version of the General Implementing Provisions and explained the procedure. The complainant noted that Parliament did not provide any legal arguments for communicating the information by e-mail, or for the lack of any substantive follow-up.

21. In its opinion, Parliament noted that all of Parliament's officials and members of staff received an e-mail message entitled "Transfer of state pension rights from Member State A" and containing an attachment with detailed information and a transfer request form. Sending notices to staff by e-mail has been a common practice in Parliament for many years and there are both practical and environmental reasons for this administrative practice. According to the relevant case-law[5], as long as the information remains clear, precise and correct, an institution is free to choose the way it informs its staff of a possibility to request such a transfer of pension rights. The e-mail clearly met the above-mentioned requirements and created an opportunity for a sufficiently diligent official to take action or request additional information from the contact persons indicated in the attached notice.

22. In his observations, the complainant maintained that Parliament has still not presented any convincing legal reasons for limiting its communication of the information to one e-mail. In the present case, he considered that Parliament's decision only to communicate the information by e-mail was inappropriate. He pointed out that staff receive huge amounts of irrelevant information on a daily basis via e-mail, which makes difficult for them to realise the importance of the information in question. He was disappointed that Parliament implied that his failure to note the e-mail was due to lack of diligence on his part. He explained that, at the time, his service was engaged in particularly demanding calls for tender involving external contracts for translations in all languages. This involved him being away from the office to supervise committees and resulted in huge amounts of e-mails being in his e-mail box when he returned.

The Ombudsman's assessment

23. Parliament's method of communicating information to staff in an appropriate manner regarding the transfer of pension rights is a question that lies within the institution's powers of internal organisation. Parliament must take appropriate measures in order to ensure that its internal operation is in conformity with the interests of good administration[6]. In addition, according to the case-law of the Union Courts, an institution can choose how to inform its staff of a new agreement concerning pension rights[7].

24. Parliament chose to inform its staff by e-mail for practical and environmental reasons. The Ombudsman considers that communicating by e-mail is an appropriate means to inform staff effectively. He further notes that Parliament regularly communicates with its staff by e-mail. The Ombudsman does not consider that it was necessary for Parliament to send reminders. The complainant did not deny that he received this e-mail. He merely stated that he received so many e-mails that he did not pay attention to the one in question. The Ombudsman finds no maladministration by Parliament as regards this allegation and the related claim.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by Parliament.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 31 May 2011


[1] Article 77 of the Staff Regulations states the following: "An official who has completed at least ten years' service shall be entitled to a retirement pension."

[2] Case T-185/95 Sergio v Commission [1996] ECR II-1215, paragraphs 36-37.

[3] Article 77 of the Staff Regulations states the following: "An official who has completed at least ten years' service shall be entitled to a retirement pension."

[4] Case T-185/95, cited above. Paragraphs 36 and 37 state the following, in French: "Le délai de six mois pour l'introduction, auprès de l'administration communautaire, d'une demande de transfert de droits à pension acquis avant l'entrée au service des Communautés, prévu par la disposition générale d'exécution de l'article 11, paragraphe 2, de l'annexe VIII du statut, est raisonnable en ce qu'il permet une période de réflexion suffisante..."

[5] Case T-100/92 La Pietra v Commission [1994] ECR II-275, paragraph 45.

[6] Case C-58/94 Netherlands v Council [1996] ECR I-2169, paragraph 37.

[7] Case T-100/92, cited above, paragraph 45.

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