European Ombudsman
Dear Ms M.,
On 6 March 2007, you submitted a complaint to the European Ombudsman against the European Commission concerning the transfer to the Belgian national pension rights system of the pension rights you acquired during your contract as a temporary agent at the Commission.
On 29 May 2007, I forwarded the complaint to the President of the Commission.
By letter of 11 October 2007, I informed you that, for reasons linked to the internal organisation of my services, your complaint had been reassigned to another legal officer.
After being granted an extension of the deadline for responding, the Commission sent its opinion on 13 November 2007.
On 20 November 2007, I forwarded it to you with an invitation to make observations, which you sent on 20 December 2007.
I am writing now to let you know the results of the inquiries that have been made.
The relevant facts according to the complainant were, in summary, as follows:
From 1 May 2004 to 1 May 2005, the complainant worked for the Commission's Joint Research Centre as a research assistant, under a temporary Agent of category B* contract(1). Her contract was extended until 30 April 2006. Since that date, the complainant had been unemployed.
In October 2006, the complainant asked for the transfer, to the Belgian Pensions Office, of the pension rights acquired during her contract with the Commission(2). However, she was informed that the transfer was not possible, for the following reasons: (i) the category of her last contract with the Commission ("temporary B") had not been included in an agreement, as regards the transfer of pension rights, concluded in February 2003 between the Commission and the Belgian authorities; and (ii) under Belgian law, the complainant was required to find a new employment before pension rights could be transferred.
On 3 October 2006, the complainant contacted the Commission to explain her difficulties as regards the transfer of her pension rights. She also mentioned that she had not found any private insurance company which would accept the conditions set out in the Staff Regulations as regards the transfer of her pension rights. The complainant asked the Commission to find a solution.
On 27 October 2006, the Commission informed the complainant that the transferable amount was EUR 22 821.01 and that there were different possibilities open to her. These were: (i) a total transfer to a new pension regime, in accordance with Article 11(1) of Annex VIII of the Staff Regulations; or (ii) a total transfer to a private insurance or pension fund, in accordance with Article 12(1)(b) of Annex VIII. The complainant was invited to present the relevant documents to the pension regime of her choice and was informed that she should submit her application within the following three months.
On the same date and, in reply to her e-mail of 3 October 2006, the Commission acknowledged her concerns and assured her that her rights would be maintained, regardless of the duration of her negotiations aiming to resolve the situation. The Commission recognised that several other EC agents were facing the same problem. The Commission committed itself to finding a solution as soon as possible and to informing the complainant accordingly.
On 31 January 2007, the complainant addressed an e-mail to the Commission in which she explained that, on 7 December 2006, she had submitted an application to the Belgian Pensions Office for the transfer of her pension rights to the Belgian system. However, she had been informed again that the transfer was not possible. The complainant asked the Commission whether it had taken any measure in order to remedy the situation and who would be responsible for a modification of the current regime, namely, Article 11(1) of Annex VIII of the Staff Regulations. She stressed that it was of considerable importance to her that the two years that she had worked for the Commission be taken into account by the Belgian Pensions Office.
In her complaint to the Ombudsman, the complainant stated that, before the administrative reform of May 2004, the amount of EC pension rights accumulated by temporary agents of grade B was directly granted to them and they were therefore excluded from the 2003 agreement. After that date, the Commission modified the former conditions for the reimbursement of pension rights for temporary agents of grade B and replaced them by a transfer to the national authorities. However, in the complainant’s view, the Commission had forgotten to update the pension transfer agreement with Belgium and to include therein temporary agents employed under grade B contracts. Therefore, the complainant's EC pension rights accumulated during her work for the Commission were not recognised by the Belgian system.
The complainant stated that, as a consequence, individuals who, like herself, were unemployed after a period of time working for the Commission were paid unemployment benefits on the basis of zero income. This entitled them only to a fixed amount in terms of unemployment benefits for all the following years. The complainant stated that the Commission should adopt the appropriate measures designed to find a solution since, in the following four years (before she would reach the age of 65 years), she would have to introduce a request for her Belgian pension.
The complainant mentioned that the Commission was aware of her difficulties but had not taken action. She also explained that the transfer of her pension to a private insurance scheme was not feasible, due to the strict conditions imposed and to the fact that, in any case, she would receive a less favourable amount of pension rights than she would obtain with the national authorities. The complainant further mentioned that she had submitted a complaint to the Belgian Ombudsman as regards the condition, under Belgian law, whereby she was required to find a new employer in order to become entitled to a pension transfer.
In her complaint to the Ombudsman, the complainant alleged that the Commission had failed to set up an appropriate mechanism in order to transfer to the Belgian system the pension rights acquired by former EC temporary agents under grade B contracts. She claimed that the Commission should set up an appropriate system for the transfer of her pension rights.
On 4 May 2007, on the occasion of a telephone conversation with the Ombudsman’s services, the complainant mentioned that the Belgian Pensions Office had informed her that it had asked the Commission for information in order to regularise the complainant's situation. However, she had not received any follow up from the Belgian Pensions Office to her request concerning this matter.
The Commission’s opinion on the complaint was, in summary, as follows:
The Commission first emphasised that, in her complaint, the complainant acknowledged that both the Commission’s services (PMO) and the national pension office(3) properly applied the relevant provisions of Community and national law.
The Commission further stated that the procedures concerning the implementation of Article 11 of Annex VIII of the Staff Regulations were ready for implementation, at both the EU level and the Belgian level. In accordance with Article 11(1)(4), transfers of pension rights could be made only to the pension organisation to which the relevant person would be affiliated, in the context of a new professional activity.
The Commission then referred to Article 12(1)(b) of Annex VIII of the Staff Regulations(5) which, under certain conditions, foresaw the possibility of the payment of the actuarial equivalent of the benefits to a private insurance company or pension fund of one’s choice.
The Commission stated that the implementation of Article 12(1)(b) of Annex VIII of the Staff Regulations should, in theory, remedy the problem raised by the complainant in her complaint. However, according to the complainant, the offer received from the private insurance company she contacted ("Integral insurance") would lead to a loss of 50 % in her monthly income.
The Commission pointed out that it was essential to emphasise that the problem raised by the complainant would never have arisen had she asked, in good time, for the implementation of Article 42 of the Conditions of employment of other servants of the European Communities ("CEOS"). Article 42 enabled the agent to "request the institutions to effect any payments which he is required to make in order to constitute or maintain pension rights in his country of origin." Indeed, the complainant would thus not only have supplemented her rights in her national pension system, had she, in good time, made such requests, but she would also have received, at the end of her service, the severance grant provided for in Article 12(2) of Annex VIII of the Staff Regulations(6).
The Commission stated that EC agents were supposed to be cognisant of the provisions set out in the CEOS. Consequently, the complainant was required to be aware of the possibility offered to her by Article 42 of the CEOS.
The Commission finally stated that in order to avoid the occurrence of similar situations in the future, it planned systematically to draw the attention of the agents concerned to the possibility offered to them by Article 42 of the CEOS.
In addition, the Commission further stated that, in the complainant’s case, it planned to contact again the Belgian authorities in order to call on them to conclude an agreement designed to remedy the problems encountered in the application of Article 11(1) of Annex VIII of the Staff Regulations.
In her observations, the complainant stated that she had encountered great difficulties in finding a private insurance company for the payment of the actuarial equivalent because the great majority of them refused to accept the first condition set out in Article 12(1)(b) of Annex VIII of the Staff Regulations, pursuant to which no transfer can be made unless the insurance company guarantees that the capital shall not be repaid.
She further stated that only one private insurance company accepted the conditions set out in Article 12(1)(b) of Annex VIII of the Staff Regulations. However, the offer made by the insurance company would lead to a loss of about 50 % in her monthly income, compared to the pension that she would have received from the national pension scheme.
The complainant also stated that i) there had been a lack of information by the Commission because it did not inform her of the existence of Article 42 of the Staff Regulations, thereby leading to unfairness. She also alleged that (ii) she had been the victim of discrimination on the grounds of age because it proved very difficult for her to find a new employer at her age; and (iii) there had been an avoidable delay by the Commission as regards the conditions for the transfer to a private insurance company from 2004 to 2007.
The complainant also raised a series of questions, concerning the transfer of her pension rights to the Belgian Pensions Office.
1.1 From 1 May 2004 to 1 May 2005, the complainant worked for the Commission's Joint Research Centre under a temporary Agent of category "B" contract. Her contract was extended until 30 April 2006. Since that date, she was unemployed. In October 2006, the complainant asked for the transfer to the Belgian Pensions Office of the pension rights acquired during her contract with the Commission(7). However, she was informed that the transfer was not possible.
In her complaint, the complainant alleged that the Commission had failed to set up an appropriate mechanism in order to transfer to the Belgian system the pension rights acquired by former EC temporary agents under grade B contracts.
1.2 In its opinion, the Commission pointed out that it was essential to emphasise that the problem raised by the complainant would never have arisen had she asked, in good time, for the implementation of Article 42 of the Conditions of employment of other servants of the European Communities ("CEOS"). The Commission stated that EC agents were supposed to be cognisant of the provisions set out in the CEOS and that, consequently, the complainant had to be aware of the possibility offered to her by Article 42 of the CEOS. The Commission further stated that in order to avoid similar situations in the future, it planned systematically to draw the attention of the agents concerned to the possibility offered to them by Article 42 of the CEOS. The Commission further stated that, in the complainant’s case, it planned to contact again the Belgian authorities in order to call on them to conclude an agreement to remedy the problems encountered in the application of Article 11(1) of Annex VIII of the Staff Regulations.
1.3 In her observations, the complainant stated that she had encountered great difficulties in finding a private insurance company because the great majority of them refused the first condition set in Article 12(1)(b) of Annex VIII of the Staff Regulations pursuant to which the capital shall not be repaid.
2.1 The European Ombudsman notes that, in her observations, the complainant raised new allegations that (i) there had been a lack of information by the Commission, thereby leading to unfairness; (ii) she had been the victim of discrimination on the grounds of age; and (iii) there had been an avoidable delay by the Commission as regards the conditions of transfer to a private insurance company from 2004 to 2007. The complainant also raised a series of questions, concerning the transfer of her pension rights to the Belgian Pensions Office.
2.2 As a preliminary remark, the Ombudsman recalls that his role consists in investigating complaints concerning alleged instances of maladministration in the activities of the institutions and bodies of the European Union. His mandate does not allow him to investigate the behaviour of any national institution or body.
2.3 The implementation of the relevant Belgian Law by the Belgian authorities, namely, the Belgian Pensions Office, appears to come within the competence of the Belgian Ombudsman. In this regard, the Ombudsman notes that the complainant mentioned that she had submitted a complaint to the Belgian Ombudsman as regards the condition, provided for under Belgian law, that in order to be entitled to transfer of pension rights, an unemployed person must first find a new employer. The Ombudsman further notes that the complainant mentioned that the Belgian Pensions Office had asked the Commission for information in order to resolve her situation.
2.4 The Ombudsman would like to point out that the issues raised in the complainant’s observations constitute new allegations that were not raised in her original complaint. They therefore fall outside the scope of the present inquiry and will not be dealt with here. The complainant is free to lodge a new complaint with the European Ombudsman as regards these issues, after having made the prior administrative approaches to the Commission in this regards.
3.1 The Ombudsman first would like to recall that Article 42 of the CEOS reads as follows:
"In accordance with conditions to be laid down by the institution, a servant may request the institutions to effect any payments which he is required to make in order to constitute or maintain pension rights in his country of origin. (…)".
The Ombudsman further notes that an official who leaves the service of the Communities is entitled to have his/her pension rights transferred to (i) a new pension regime, in accordance with Article 11(1) of Annex VIII of the Staff Regulations, or (ii) a private insurance or pension fund, in accordance with Article 12(1)(b) of Annex VIII, provided four conditions are fulfilled(8).
3.2 The Ombudsman would like to point out that his mandate does not allow him to question the existing provisions of the Staff Regulations mentioned above. The Ombudsman will therefore only examine whether there was any instance of maladministration on the part of the Commission in dealing with the complainant’s transfer of pension rights.
3.3 The Ombudsman notes that, in the present case, the complainant did not ask for the implementation of Article 42 of the CEOS because she argues she was not aware of it.
3.4 First, the Ombudsman would like to point out that it has to be assumed that, from a legal perspective, any official or agent should be aware of the provisions set out in the Staff Regulations and that it is his/her responsibility to take the appropriate steps to become fully cognisant of them. The Ombudsman is of the view that the Commission cannot be held legally responsible for the fact that the complainant was unaware of the possibilities offered to her, as regards her pension rights, under Article 42 of the CEOS.
However, the Ombudsman particularly welcomes the Commission’s statement according to which, in order to avoid any similar cases occurring in the future, it intends systematically to draw the attention of the agents concerned to the possibility offered to them under Article 42 of the CEOS. With a view to supporting the intentions of the Commission, the Ombudsman will make a further remark in this respect.
3.5 Second, the Ombudsman notes that pension rights acquired by former temporary agents can only be transferred to the Belgian pension system with the cooperation of the Belgian authorities. The Ombudsman notes that the Commission did contact the Belgian authorities to ask them to conclude an agreement with it, with a view to remedying the problems encountered by the complainant as regards the application of Article 11(1) of the Staff Regulations. As such, the Ombudsman is of the view that the Commission took all steps open to it to assist the complainant. The Ombudsman is of the view that the Commission cannot be held responsible for the fact that the Belgian authorities have yet to take the necessary steps to make such transfers possible.
3.6 In light of the above, the Ombudsman concludes that there appears to be no grounds for further inquiries into the complainant’s allegation.
4.1 The complainant claimed that the Commission should set up an appropriate system for the transfer of her pension rights.
4.2 In light of his conclusion in point 3.6 above, the Ombudsman concludes that there appears to be no grounds for further inquiries into the complainant’s claim.
On the basis of the Ombudsman's inquiries into this complaint, there appears to be no grounds for further inquiries into the complainant’s allegation and claim. The Ombudsman therefore closes the case.
In addition, the Ombudsman makes the following further remark:
The Commission should systematically draw the attention of agents to the possibility offered to them under Article 42 of the CEOS.
The President of the Commission will also be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) The Ombudsman notes that the denomination "category B*", used during the provisional period of implementation of the new Staff Regulations, which entered into force on 1 May 2004, corresponds to the current AST category contracts.
(2) "Office national des Pensions" in the French original version.
(3) See footnote 2.
(4) Article 11(1) of Annex VIII of the Staff Regulations reads as follows:
"1. An official who leaves the service of the Communities to: – enter the service of a government administration or a national or international organisation which has concluded an agreement with the Communities; – pursue an activity in an employed or self employed capacity, by virtue of which he acquires pension rights under a scheme whose administrative bodies have concluded an agreement with the Communities, shall be entitled to have the actuarial equivalent of his retirement pension rights, updated to the actual date of transfer, in the Communities transferred to the pension fund of that administration or organisation or to the pension fund under which he acquires retirement pension rights by virtue of the activity pursued in an employed or self employed capacity."
"1. An official who leaves the service of the Communities to:
– enter the service of a government administration or a national or international organisation which has concluded an agreement with the Communities; – pursue an activity in an employed or self employed capacity, by virtue of which he acquires pension rights under a scheme whose administrative bodies have concluded an agreement with the Communities,
– enter the service of a government administration or a national or international organisation which has concluded an agreement with the Communities;
– pursue an activity in an employed or self employed capacity, by virtue of which he acquires pension rights under a scheme whose administrative bodies have concluded an agreement with the Communities,
shall be entitled to have the actuarial equivalent of his retirement pension rights, updated to the actual date of transfer, in the Communities transferred to the pension fund of that administration or organisation or to the pension fund under which he acquires retirement pension rights by virtue of the activity pursued in an employed or self employed capacity."
(5) Article 12 of Annex VIII of the Staff Regulations reads as follows:
"1. An official aged less than 63 years whose service terminates otherwise than by reason of death or invalidity and who is not entitled to an immediate or deferred retirement pension shall be entitled on leaving the service: (b) in other cases, to the benefits provided under Article 11(1) or to the payment of the actuarial equivalent of such benefits to a private insurance company or pension fund of their choice, on condition such company or fund guarantees that: (i) the capital will not be repaid; (ii) a monthly income will be paid from age 60 at the earliest, and age 65 at the latest; (iii) provisions are included for reversion or survivors' pensions; (iv) transfer to another insurance company or other fund will be authorised only if such fund fulfils the conditions laid down in points (i), (ii) and (iii)."
"1. An official aged less than 63 years whose service terminates otherwise than by reason of death or invalidity and who is not entitled to an immediate or deferred retirement pension shall be entitled on leaving the service:
(b) in other cases, to the benefits provided under Article 11(1) or to the payment of the actuarial equivalent of such benefits to a private insurance company or pension fund of their choice, on condition such company or fund guarantees that: (i) the capital will not be repaid; (ii) a monthly income will be paid from age 60 at the earliest, and age 65 at the latest; (iii) provisions are included for reversion or survivors' pensions; (iv) transfer to another insurance company or other fund will be authorised only if such fund fulfils the conditions laid down in points (i), (ii) and (iii)."
(6) Article 12(2) of Annex VIII of the Staff Regulations reads as follows: "By way of derogation from paragraph 1(b), officials under 63 years of age who, since taking up their duties, have, in order to establish or maintain pension rights, paid into a national pension scheme, a private insurance scheme or a pension fund of their choice which satisfies the requirements set out in paragraph 1, and whose service terminates for reasons other than death or invalidity without their qualifying for an immediate or deferred retirement pension, shall be entitled, on leaving the service, to a severance grant equal to the actuarial value of their pension rights acquired during service in the institutions. In these cases the payments made in order to establish or maintain their pension rights under the national pension scheme in application of Articles 42 or 112 of the Conditions of Employment of other servants shall be deducted from the severance grant."
(7) See footnote 2.
(8) According to Article 12(1)(b) of the Annex VIII of the Staff Regulations, these four conditions are the following:
"(…) on condition such company or fund guarantees that: (i) the capital will not be repaid; (ii) a monthly income will be paid from age 60 at the earliest, and age 65 at the latest; (iii) provisions are included for reversion or survivors' pensions; (iv) transfer to another insurance company or other fund will be authorised only if such fund fulfils the conditions laid down in points (i), (ii) and (iii)."
"(…) on condition such company or fund guarantees that:
(i) the capital will not be repaid;
(ii) a monthly income will be paid from age 60 at the earliest, and age 65 at the latest;
(iii) provisions are included for reversion or survivors' pensions;
(iv) transfer to another insurance company or other fund will be authorised only if such fund fulfils the conditions laid down in points (i), (ii) and (iii)."
