Dear Sir,
On 26 January 1997 you lodged a complaint with the European Ombudsman on behalf of yourself and Lord B. against the European Parliament for maladministration in relation to the additional pension scheme for Members of Parliament. By letter of 27 January 1997 Lord B. informed me that he would like to associate himself to your letter. On this basis, the complaints have been dealt with jointly and the correspondence has been addressed to you, Mr M., as your complaint was lodged on behalf of both.
On 26 March 1997 I forwarded the complaint to the President of the European Parliament. The Parliament sent its opinion on 13 May 1997 and I forwarded it to you with an invitation to make observations, if you so wished. On 25 and 30 September 1997 you submitted your observations on the Parliament's opinion. On 10 December 1997 you submitted further material.
I am now writing to let you know the results of the inquiries that have been made. I am genuinely sorry for the time it has taken to deal with your complaint.

THE COMPLAINT

The background to your complaint is briefly the following: By decision of 12 June 1990 the Bureau of the Parliament set up an additional (voluntary) pension scheme for Members of the Parliament; the rules governing the pension scheme constitute Annex IX (formerly Annex X) to the Rules governing the payment of expenses and allowances to Members. In the autumn 1992, a time limit of 6 months was laid down for joining the pension scheme. It is a fact that you did not join the scheme at that time. It is disputed why you did not join; you consider that you were not informed about the introduction of the time limit.
After the elections to Parliament in 1994, you sought to join the scheme. Having been re-elected, you, Mr M., were allowed to join for the period 1994-1999 but not for the previous period. As you, Lord B., were not longer a Member of Parliament, you could not apply for joining for the period 1994-1999, and you were not allowed to join for the previous period.
You contacted different instances within the Parliament with a view to being allowed to join the scheme retroactively, that is for the period before 1994. You argued that you had not been informed about the time limit introduced in the autumn 1992 and that Parliament had applied the time limit in an unfair and discriminatory way. On 24 July 1995, the Chairman of the Pension Fund set up under the scheme, who was also Member of the College of Quaestors of the Parliament, replied to this. The letter states i.a.:

Thank you for your letter of July 10th and your request to be allowed to claim back dated membership of the Additional Voluntary Scheme. Although I understand your position this does not negate the fact that there was a cut off date for Members to join the scheme during the last Parliament ...

As you know during last Parliament your colleague, Mrs M, made the same request that you are now making and that request was turned down by the College of Quaestors at its meeting on May 5th 1993. Prior to that decision in October 1992 when the College introduced the deadline for applications to the scheme it also considered a proposal to the Bureau to back date contributions to periods of service prior to 1989. Its decision at that time that 'for legal and practical reasons, it was not appropriate to submit such a proposal' is as valid as it was then. To give just one example the Budgetary Committees, or for that matter the Court of Auditors, would not, and could not in my view, sanction Parliament's contributions to the scheme being paid three, four or even five years in arrears....

May I also correct an error you have made concerning the College of Quaestors´ discussion on April 24th concerning Mr L. As you will see from the enclosed extract of the minutes of that meeting that matter concerned the French and Italian pension schemes administered by the European Parliament on behalf of the French and Italian Governments. Thus it refers to Annex III of the Rules on Members' Expenses and Allowances rather than Annex X [now Annex IX] which actually contains the rules of MEPs' additional voluntary pension scheme. In addition to this, the request by Mr L was to receive a pension from, rather than join, that particular pension scheme."

The mentioned extract of the minutes of the meeting of the College of Quaestors reads:

"...under the rules governing the pensions for Members of the French National Assembly, which applied by analogy to French Members of the European Parliament, applications to receive a pension must be made in writing within six months of the date on which a Member or former Member becomes eligible. A former French Member, who was unaware of this provision, had made his application to the European Parliament seven months after becoming eligible. After a brief discussion, the College:

Authorised an exception to the current Rules in favour of Mr L in order to enable him to receive the pension notwithstanding his failure to apply within the six-month time limit;

Instructed the Administration to submit a draft amendment with the aim of clarifying the time limits applicable to Annex III to the Rules on Members' Expenses and Allowances."

After having received this information, you pursued your contacts with Parliament, but without success. Against this background you lodged the complaint with the European Ombudsman.
In the complaint it was put forward:

"...the European Parliament's Quaestors in the period 1989-1994 set up a pension scheme for MEPs, which they notified through a series of memoranda. At a certain point they introduced a deadline, after which membership of the scheme was closed. Neither Lord B. or I applied at that time, and when we did so subsequently we were refused.

Our complaint is that the scheme was improperly advertised to Members and that the decision of the European Parliament authorities to refuse Lord B. admission and myself to to buy "back years" (in the UK jargon) was unfair and discriminatory. Since my re-election in 1994 I am now a member of the scheme and find that I am paying a substantial levy to cover current pension payments due to the previous maladministration of the scheme.

We have made a number of requests to the College of Quaestors, the board of the Pension Fund and the President of the European Parliament, the last being in the Autumn of 1996, without success. We have taken independent legal advice which supports our case."

Thus, the allegations are to the effect that
- the time limit for joining the pension scheme was not properly advertised,
- it was unfair and discriminatory not to allow you to join the scheme with retroactive effect.

THE INQUIRY

The European Parliament's opinion
In its opinion, the Parliament has stated:

"The College of Quaestors has examined the arguments put forward by Mr M. and Lord B. in some detail on the basis of an opinion by Parliament's Legal Service.

Its position was notified to Mr M. and Lord B. by letters dated 7 May 1996 and 4 October 1995 respectively.

...at its meeting of 22 April 1997 the College of Quaestors confirmed the position adopted at previous meetings and instructed me to send you copies of its letters to the two complainants with a copy of the opinion of the Legal Service."

The mentioned letter of 4 October 1995 reads:

"On Wednesday 20th, and Thursday 21st September 1995 respectively, the College of Quaestors and the Board of Directors of the Pension Fund considered your request, along with similar requests from Lord B. and Mrs M, for the introduction of a system allowing Members to back date their contributions into the additional voluntary pension scheme. Both the College and the Board felt unable to accept your request and therefore will not be drawing up plans to introduce any rules changes to the scheme to allow for the back payment of contributions."

The relevant parts of the legal opinion read as follows:

"(a) Concerning the alleged lack of information

17. The argument according to which the Members were not carefully informed about the decision by the College of Quaestors has to be examined in the light of the following:

- The decision by the College of Quaestors to refuse any new membership after 15 December 1992 follows a series of communications(1) informing all the members about the setting up of the complementary pension scheme and inviting them to declare their interest in it or to join as quickly as possible;

- The decision by the College of Quaestors of 28 October 1992 was the subject of its communication nr. 21/92, distributed in mid-November 1992 in each member's pigeon hole in Strasbourg or Brussels and sent to their home addresses;

- On 8 July 1993 the Bureau introduced a clause into the regulation on the complementary pension scheme, specifying that members could join within a maximum of six months from the date of their (re-)election. Taking into account the decision already taken by the College of Quaestors in October 1992, the modification of the regulations by the Bureau was not accompanied by any transitional measures. The minutes of the decisions by the Bureau, amongst them the one of 8 July 1993, were circulated to all the members.

- the regulation concerning the costs and immunities of the members of the European Parliament, of which the regulation on the complementary pension scheme constitutes annex IX(2) is distributed to all the members at least once a year, and in any case, to all members immediately after they take up office(3).

18. In the light of the preceding, the argument by Mrs M and Mr M. stating that they were not aware of communication nr. 21/92, distributed at the three places of work, cannot be considered in itself an appropriate base for contesting the refusal of a late joining, unless there is proof to the contrary. Indeed, at the time of their re-election in June 1994, and in accordance with the regulation on the complementary pension scheme modified by the Bureau in July 1993, the members concerned had again a six months' time span in which to join the pension scheme, which apparently they did not make use of. Yet, they do not mention anywhere that at the time when this new six months' time span expired (December 1994), they still had not received the text of the regulation concerning the costs and immunities of the members, or that, owing to a lack of information, they still ignored the existence of the time span of a maximum of six months from the date of their election.

19. As far as Lord B. is concerned, a member who was not re-elected in 1994, the Legal Service points out that his first request of joining appears to go back to mid 1995. Yet, to the knowledge of the Legal Service, Lord B. has not forwarded until now, any elements or indications to prove prima facie that at that time he still was not aware of the relatively restricted time limit for joining. Equally, the Legal Service has no indication of any steps taken by Lord B. before his request for joining, in view of contesting the decision taken by the College of Quaestors or the modification of the regulations by the Bureau.

20. Under these circumstances, there do not appear to be any grounds for the arguments by the members concerned, aiming at asserting the lack of information about the measure taken by the College of Quaestors.

b) Concerning the margin of appreciation of the College of Quaestors

21. The decision taken by the College of Quaestors on 28 October 1992 to fix a time limit of maximum six months from the date of any (re-)election for joining the complementary pension scheme, as well as the last possible date, i.e. 15 December 1992, as a transitional measure for the members in office, is a general decision essential for all members. In accordance with the generally recognized principle, also in Community law, "patere legem quam ipse fecisti", the College of Quaestors is bound to respect the general rule it has itself set up, and cannot dismiss it without infringing the principle of equal treatment.

In full respect of this rule, the College of Quaestors indeed refused membership of the scheme to all members who applied after 15 December 1992(4), with one exception. This exception is however very specific; it was made by a formal unilateral agreement of the College of Quaestors, made in tempore non suspecto, i.e. before there was any question of limiting membership of the complementary pension scheme right in the middle of a parliamentary term of office(5). For this reason it could not be assimilated to an exception to the rule, which could be put forward as a precedent.

22. Moreover, the above mentioned decision was based on the three following concerns:

(1) to ensure a healthy financial management and restore a financial balance in the pension fund was according to a report by Coopers and Lybrand of 4 August 1992 was deficient at that moment(6);

(2) to allow the accountants to carry out reliable actuarial calculations necessary within the framework of financial management, and to allow the budgetary authorities to make more detailed budgetary forecasts;

(3) not to discriminate the members who had joined the scheme at its very beginnings and whose financial situation would in fact be less favourable than the 'new members' ' who would be able to make back payments.

Taking into account the reasons underlying the decision by the College of Quaestors, neither the general decision itself, nor the concrete refusals resulting from it could be called arbitrary."(translated by the Ombudsman's services)

The complainant's observations
In your observations you have maintained your complaint.

THE DECISION

Improper advertisement of the time limit introduced
1 As concerns the allegation that the time limit for joining the pension scheme was not properly advertised to Members of Parliament, it appears that there are no regulatory rules governing the question what should be considered to be proper advertisement. In particular, it shall be noticed that Parliament's Rules of Procedure do not contain any relevant rules.
2 As concerns the case law of the Community Courts, it shall be noticed that in relation to Art 173 of the Treaty and Articles 90 and 91 of the Staff Regulations, the Courts have ruled that the notification of a measure normally occurs when the measure is communicated to the addressee and he is able to take knowledge of it(7). The Courts have also ruled that the burden of proof of due notification lies with the administration. However, this case law does not appear to be transposable to this case. The case law concerns individual acts which adversely affect the addressee, whereby the exact definition of the moment of notification is of utmost importance for the calculation of the time limit within which judicial proceedings can be brought. This case concerns communication of general information concerning an offer of which the addressee can choose to make use or not. In case the addressee applies and his application is refused, it is that refusal to which the time limit for bringing judicial proceedings applies(8).
3 As for the Community institutions' administrative practices, there are to the Ombudsman's knowledge no binding practices on the issue. It appears that the administration frequently makes use of general communications to make possible rights known to servants for which they may have to apply(9).
4 On this basis it must be concluded that the question of proper communication of information to Members is a question that lies within the Parliament's powers of internal organisation. In exercising these powers, the Parliament shall, according to the case law of the Community Courts, act in conformity with the interests of good administration(10). The question is thus whether Parliament has acted accordingly.
It appears that in this case, the Parliament sent out a communication to the Members concerning the time limit introduced in the pension scheme through the internal distribution system of Parliament. As a supplementary way of ensuring the communication to the Members, Parliament also sent it by ordinary mail to each Member at his home address, whereby it shall be noticed that the events in this case took place before the introduction of electronic mail. Thus, the individual Member had at least two occasions to get knowledge of the time limit introduced. This does not appear to constitute an instance of maladministration.
Unfair and discriminatory treatment
5 As for the question whether the refusal to admit you to the scheme with retroactive effect is unfair and discriminatory, it appears that this question covers two; the first one is whether it is unfair that the regulation in general does not provide for joining with retroactive effect; the second one is whether the time limit for joining the pension scheme in your case should have been waived, whereby it shall be noticed that it seems to be common ground between you and Parliament that waiving the time limit in your case would entail joining with retroactive effect. Thus, it is clear that if the first question is answered to the effect that there should be a general possibility for joining with retroactive effect, the second question is made redundant.
6 As concerns the first question, it is common ground between you and Parliament that the regulation does not contain any provision to the effect that the scheme can be joined retroactively. The question is thus whether it is fair that Parliament has not introduced such a provision. It appears that Parliament has not done so for reasons of sound financial management of the scheme. Furthermore, it shall be noticed that it lies within Parliament's powers not to set up a scheme at all. Thus, the Parliament must also be entitled to lay down limitations on the scheme for the said reasons.
Therefore, the Ombudsman finds that it does not constitute an instance of maladministration that the Parliament has not provided for a general possibility for joining the scheme with retroactive effect.
7 As concerns the question whether the time limit for joining the scheme in your case should have been waived, the examination of this question falls into various parts. Firstly it has to be examined whether the refusal to waive the time limit was unfair and subsequently whether it was discriminatory.
8 As for the fairness, it shall firstly be observed that the regulation governing the pension scheme does not contain any provision allowing for waiving the time limit on grounds of equity. The relevant provision of the regulation simply provides that Members shall have a "maximum period of six months following their election or re-election" for joining the scheme.
9 In the absence of an explicit provision allowing for waiving the time limit, the question is whether under Community law there exists a general principle to the effect that a time limit shall be waived on grounds of equity. There appears to be no such general principle(11).
10 Against this background and taking into account the reasons of sound financial management indicated by the Parliament, it cannot be considered unfair that the time limit was applied strictly to you.
11 As for the allegation about discrimination, it shall be recalled that the principle of equal treatment requires that identical situations are treated identically and that different situations are not treated identically.
12 It has been put forward that another Member of Parliament has been allowed to join the scheme in spite of being outside the time limit. It appears from the Parliament's opinion that this Member, prior to the introduction of the time limit, had received assurance that she could join the scheme. Thus, her situation does not appear identical to the one in this case.
13 Secondly, it has been put forward that Parliament under the retirement pension scheme - the scheme in annex III - has waived the time limit in one case, that is the case mentioned in the letter of 24 July 1995 quoted above. In this regard, it shall be noticed that the demand concerned was presented one month after the expiration of the time limit concerned, that it was presented under another scheme in a different financial situation and that the demand concerned entitlement to a pension to which the Member concerned had already contributed. Furthermore, it appears from the amendment to the rules, for which the administration was requested to submit a proposal in the quoted minutes of the meeting of the College of Questors, that demands presented outside time limit have no retroactive effect. The situation thus appears to be different from the one in this case.
14 Consequently, the principle of equal treatment does not appear to have been violated. However, the question whether the principle of equal treatment has been violated is a question of law and therefore, it shall be recalled that the Court of Justice is the highest authority on questions of Community law.
Conclusion
15 On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Parliament. The Ombudsman has therefore decided to close the case.
Yours sincerely
Jacob SÖDERMAN
Copy:
Mr José Maria Gil-Robles Gil- Delgado
Mr Julian Priestley, Secretary General

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(1) Parliament's footnote : Communications 25/90, 30/90 and 6/91 by the College of Quaestors.

(2) Parliament's footnote : Annex X up to July 1995.

(3) Parliament's footnote : Art. 27 of the Regulation concerning the costs and immunities of the members : "As soon as they take up office, the members receive the present regulation; they acknowledge receipt thereof in writing (...)".

(4) Parliament's footnote : Cf. e.g. the refusal of membership by Mrs M and Mrs M in 1993.

(5) Parliament's footnote : The member in question who joined the scheme late was Mrs S; taking into account the specific conditions in which she joined the scheme, her membership can hardly be put forward as an argument for discriminatory treatment.

(6) Parliament's footnote : Thus, e.g. late contributions could not be invested by the pension fund during the period of delay.

(7) See amongst others, judgment of 9 June 1994 in case T-94/92, X v Commission, [1994] ECR for Staff law II-481, judgment of 20 March 1991 in case T-1/90, Casariego v Commission, [1991] ECR II-143, judgment of 13 July 1989 in case 58/88, Olbrecths v Commission, [1989] ECR 2643 and judgment of 11 May 1989 in joined cases 193/97 and 194/97, Maurissen and Union Syndicale v Court of Auditors, [1989] ECR 1045.

(8) It is established case law of the Community Courts that individual measures which affect the financial situation of individual Members may be subject to legal review, judgment of 23 March 1993 in case C-314/91, Weber v Parliament, [1993] ECR I-1093.

(9) See for instance, the Commission's comments to the Ombudsman on joined complaints 669/17.6.96/ND/L/VK, 670/27.6.96/KM/L/VK and 679/1.7.96/CS/L/VK, as reported in the Ombudsman's Annual Report for 1997, p. 118, and the Commission's pleadings in case 159/86, Canters v Commission; judgment of 22 September 1988, ECR 4859.

(10) See judgment of 30 April 1996 in case C-58/94, Netherlands, supported by the Parliament, v Council, supported by the Commission and France, [1996] ECR I-2169, at paragraph 37.

(11) As for case law related to the time limit laid down by Article 173 of the Treaty of Rome, see amongst others, judgment of 15 December 1994 in case C-195/91 P, Bayer v Commission, [1994] ECR I-5619, judgment of 30 May 1984 in case 224/83, Ferriera Vittoria v Commission, [1984] ECR 2349 and judgment of 9 February 1984 in case 284/82, Busseni v Commission, [1984] ECR 557; as for case case law relating to the time limit laid down by Article 91 of the Staff Regulation, see amongst others, order of 9 July 1997 in case T-63/96, Fitchner v Commission, [1997] ECR for Staff law II-563 and judgment of 29 February 1996 in case T-547/93, Lopes v Court of Justice, [1996] ECR for Staff law II-185; as for case law related to time limits and force majeure provisions laid down under the Common Agricultural Policy, see amongst others judgment of 27 October 1987 in case 109/86, Theodorakis v Greece, [1987] ECR 4319 and judgment of 1 October 1985 in case 125/83, OBEA v Corman, [1985] ECR 3039. In some few cases, the Court of Justice has ruled that the consequences attached to the non respect of a time limit violate the principle of proportionality; however, the time limits concerned had just been exceeded by 1, 3 and 4 days, see judgment of 21 January 1992 in case C-319/90, Pressler Weingut-Weingrosskellerei v BEF, [1992] ECR I-203 and judgment of 27 June 1990 in case C-118/89, Firma Otto Lingenfelser v Germany, [1990] ECR I-2637.