# Decision of the European Ombudsman closing the inquiry into complaint 2365/2013/ANA against the European Commission
- Author: European Ombudsman
- Date: 2014-12-05T00:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/58477)
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> This case concerned the transfer of state pension entitlements to the Pension Scheme of the European Union. Contrary to the relevant provisions of EU law, it was not possible to transfer state pension entitlements from Ireland. The complaint was brought by an EU official from Ireland against the Commission for its alleged failure effectively to address the problem and enable him to exercise his statutory rights.
>
> The Ombudsman inquired into the issue and found that the Commission was cooperating with the Irish authorities to help them introduce an effective procedure for the transfer of state pension entitlements. In the course of the Ombudsman's inquiry, the Irish authorities introduced the relevant legislation to allow the transfer. On this basis, the Ombudsman found that, in spite of the delay, the Commission's efforts bore fruit and that the Commission had settled the case to the complainant's satisfaction. She, therefore, closed the case.
>
The background to the complaint
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**1.** The complaint was about the transfer of pension entitlements from a Member State pension scheme to the Pension Scheme of the European Union Institutions (PSEUI) and vice versa. In accordance with Article 11 of Annex VIII to the Staff Regulations[\[1\]](#_ftn1 ""){#_ftnref1}, the EU Member States established mechanisms to facilitate the transfer of pension entitlements of EU officials who, upon entering or leaving the service of the EU, have the right to do so. In Ireland, the system in place made it possible to transfer acquired rights from private and public service pension schemes; however, this was not the case for state pension entitlements. Against this backdrop, the complainant, an EU official from Ireland working for the Commission, unsuccessfully tried to have his state pension entitlements transferred from the Irish state pension scheme to the PSEUI.
**2.** By way of background, on 13 August 2004, the complainant made an application to the Commission's Paymaster Office (PMO) for the transfer of his pension rights from previous employment to the PSEUI.
**3.** On 14 September 2004, the Commission replied that it was not yet possible to transfer his Irish state pension entitlements to the PSEUI. The reason was that the Irish Department of Social and Family Affairs (hereinafter, 'DSP'[\[2\]](#_ftn2 ""){#_ftnref2}), the responsible Irish authority, had not put an appropriate procedure in place. However, the Commission reassured the complainant that it was doing its utmost to allow the complainant to exercise his statutory right.
**4.** Following several requests for an update, on 3 September 2009, the complainant made a new application to the Commission's PMO for the transfer of his pension rights.
**5.** On 8 December 2009, the Commission sent the DSP the complainant's application for the transfer of his pension rights.
**6.** Since the complainant's pension entitlements had not been transferred, in August 2012 the complainant sent further follow-up questions to the Commission. He enclosed a copy of an Administrative Notice of the Commission, dated 19 December 2008, which stated that, although the DSP had refused to carry out transfers, such transfers would take place in the following months.
**7.** On 17 September 2013, the complainant asked the Commission about the steps taken to ensure the Irish authorities' compliance with EU law on the transfer of pension rights into the PSEUI.
**8.** In its reply of 15 November 2013, the Commission explained that all efforts had been made to progress and to help the Irish authorities finalise the putting in place of the transfer system. Specifically, the Commission informed the complainant that, since 2007, its services had been in regular contact with the DSP in order to help it put a scheme in place to enable transfers. In 2012, the Commission had sent several e-mails and letters to the Irish authorities and intensified its request for results. The Commission stressed that, during 2013, the DSP showed significant signs of progress concerning the planned mechanism for implementing Article 11 of Annex VIII of the Staff Regulations. The Commission promised the complainant to require the Irish authorities to take the last steps to bring the transfer mechanism into force.
**9.** On 22 November 2013, the complainant lodged this complaint with the European Ombudsman.
The inquiry
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**10.** The European Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:
1) The Commission failed effectively to address Ireland's on-going failure to put a mechanism in place for the transfer of Ireland State pension entitlements to the EU Pensions Scheme.
2) The Commission should effectively address Ireland's alleged failure.
**11.** In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.
Allegation that the Commission failed effectively to address Ireland's failure to put a mechanism in place for the transfer of state pension entitlements to the EU pension scheme and the related claim
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### Arguments presented to the Ombudsman
**12.** In support of his allegation, the complainant argued that the Irish authorities' failure to put a system of pension transfers in place infringed the relevant provisions of the Staff Regulations and affected him adversely. Despite several requests, his state pension entitlements could not be transferred to the PSEUI. In particular, the complainant stressed that the problem continued even though the matter had been under consideration for a number of years. The complainant further argued that, in its reply of 15 November 2013, the Commission provided no tangible evidence to support its view there had been progress on this issue.
**13.** In its opinion, the Commission confirmed that at the time the complainant initially raised the issue, it was not technically possible to transfer his state pension entitlements to the PSEUI. The Commission further explained that, since 2007, it had intensified its negotiations with the Irish authorities. The Commission enclosed with its opinion the letters and e-mails it had addressed to the DSP insisting on the necessity of introducing the system to facilitate such transfers. Specifically, since 2009, the Commission had been in regular correspondence with the DSP and had even warned the Irish authorities that it would consider initiating infringement proceedings against Ireland.
**14.** The Commission noted that, since 2012, the Irish authorities had been working on the adoption of the rules to create a uniform system and the procedure for the transfer of state pension entitlements to the PSEUI. The DSP kept the Commission informed of the steps taken in that direction and sought help and clarification from the Commission on the practical details.
**15.** The Commission added that, on 6 February 2013, the DSP submitted a detailed draft of the mechanism for pension transfers to the Commission and requested further comments to verify the feasibility of the procedure. Moreover, the Commission requested the DSP to provide applicants and the Commission with details of the transferable amounts representing their state pension rights.
**16.** The Commission pointed out that, by January 2014, the Commission had received several notes from pensioners affected by the situation and had asked the DSP to activate the state pensions transfer system. In turn, the Irish authorities reassured the Commission of the priority given to the matter and of their continued cooperation in finalising the creation of a mechanism.
**17.** Taking into account these developments, the Commission argued that, pending the introduction of the system which was in the final stages, the DSP was able to deal with individual files on a case-by-case basis. Therefore, the Commission took the view that there was no maladministration and rejected the complainant's allegation.
**18.** Lastly, the Commission undertook to continue making every effort to resolve the issue by means of amicable negotiations with the Irish authorities, failing which it would consider starting infringement proceedings against Ireland.
**19.** With his observations, the complainant enclosed a letter from the Commission dated 24 April 2014. That letter set out that, on 3 February 2014, the complainant made a request in accordance with Article 24 of the Staff Regulations seeking the Commission's assistance to make the Irish authorities introduce a mechanism for the transfer of his state pension entitlements. The Commission summarised the complainant's case and informed him that, in recent years, it had intensified its efforts and had cooperated with the Irish authorities to help them comply with their obligations. The Commission announced to the complainant that its efforts were ultimately successful in that, on 24 March 2014, the Irish authorities introduced new legislation governing the transfer of pension rights to and from PSEUI. The Commission enclosed a copy of the relevant legislation and underlined that, since its entry into force on 1 April 2014, it has been possible for the complainant to transfer the adjusted capital value of his pension rights to the PSEUI.
**20.** In light of this development, the complainant stated that, although he was dissatisfied with the long delay of the Irish authorities in upholding the rights of Irish citizens as well as the lack of determination on the part of the Commission to use its powers in order to settle the issue earlier, justice had finally been done. The complainant thanked the Ombudsman for her interest and efforts in achieving a satisfactory outcome.
### The Ombudsman's assessment
**21.** Article 11 of Annex VIII of the Staff Regulations gives, under certain conditions, the right to officials who enter the service of the EU to transfer their acquired pension rights to the PSEUI. The purpose of this provision is to ensure that capable officials are not dissuaded from moving to EU institutions and to facilitate such moves with respect to pension rights. In order to give full effect to this right established by EU law, Member States must take all appropriate measures to ensure the fulfilment of obligations stemming from this provision of EU law[\[3\]](#_ftn3 ""){#_ftnref3}.
**22.** It is undisputed that, in this case, although the Irish authorities enabled the transfer of pension rights to the PSEUI from the public service pension scheme and private occupational schemes, they did not put the necessary mechanisms in place regarding the transfer of state pension rights.
**23.** Given that the Treaties entrust the Commission with the tasks of overseeing the application of EU law and initiating infringement proceedings against Member States if they fail to fulfil their obligations[\[4\]](#_ftn4 ""){#_ftnref4}, the focus of the Ombudsman's analysis is the Commission's role as guardian of the Treaties and not its role as the complainant's employer. In its role as guardian of the Treaties, the Commission enjoys broad discretion in deciding whether to bring proceedings against a Member State [\[5\]](#_ftn5 ""){#_ftnref5}.
**24.** In examining the complainant's allegation, the Ombudsman could not but notice that a decade has passed since the complainant first drew the Commission's attention to his grievances. At first sight, such a long delay would be hard to reconcile with the requirements of the right to good administration. However, the Ombudsman notes that, in its submissions, the Commission gave a detailed account of its efforts to ensure that the Irish authorities put an effective pension transfer system in place. It enclosed evidence to demonstrate that it had been negotiating with the Irish authorities all those years. More recently, the Commission intensified its efforts and, in seeking an expeditious solution, stated that it was prepared to initiate infringement proceedings against Ireland. Thus, the long delay notwithstanding, the Ombudsman considers that the Commission's efforts in this matter were committed and persistent. As a result of those efforts, the Irish authorities have adopted legislation putting in place a system for the transfer of state pension entitlements.
**25.** The Commission's efforts eventually resulted in a satisfactory outcome for the complainant and settled his claim. What is more, the complainant acknowledged that the issue has been successfully resolved and thanked the Ombudsman for her work.
**26.** In the light of the above considerations, the Ombudsman has decided to close the inquiry.
Conclusion
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On the basis of the inquiry into this complaint and taking into account the recent developments, the Ombudsman closes it with the following conclusion:
**The case has been settled.**
The complainant and the Commission will be informed of this decision.
Emily O'Reilly
Done in Strasbourg on 05 December 2014
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[\[1\]](#_ftnref1 ""){#_ftn1} The Staff Regulations of Officials of the European Union are available at: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1962R0031:20140101:EN:PDF>
[\[2\]](#_ftnref2 ""){#_ftn2} In 2010, the title of the Irish Department of Social and Family Affairs (DSFA) changed to Department of Social Protection (DSP). For reasons of consistency, the latter acronym shall be used in this decision.
[\[3\]](#_ftnref3 ""){#_ftn3} Article 4(3)(2) of the Treaty on European Union.
[\[4\]](#_ftnref4 ""){#_ftn4} Articles 17 and 258 of the Treaty on the Functioning of the European Union.
[\[5\]](#_ftnref5 ""){#_ftn5} Decision of the European Ombudsman closing his inquiry into complaint 1786/2011/(GRK)MHZ against the European Commission, paragraphs 45 and 62.