Strasbourg, 11 June 2007

Dear Mr P.,

On 5 August 2005, you submitted a complaint to the European Ombudsman against the European Court of Auditors ("the ECA") concerning the conditions of your retirement, namely, the transfer of your pension rights.

On 22 September 2005, I forwarded the complaint to the President of the ECA. The deadline for the submission of its opinion was 31 December 2005.

By letter of 16 December 2005, the President of the ECA requested an extension of the deadline for the submission of its opinion.

By letter of 10 January 2006, I informed the President of the ECA that I granted his request. On the same day, you were informed accordingly by letter.

The ECA sent its opinion on 27 January 2006. On 31 January 2006, I forwarded it to you with an invitation to make observations, which you sent on 22 February 2006. On 27 February 2006, you sent me a further letter related to your complaint.

On 23 May 2006, I asked the ECA for further information in relation to your complaint. The ECA sent its reply on 27 June 2006. The reply of the ECA was forwarded to you, with an invitation to make observations, which you sent on 10 July 2006.

On 11 May 2007, you telephoned my services and informed them that, on 23 February 2007, you had submitted the matter to the European Union Civil Service Tribunal.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay in the handling of your complaint.

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

The complainant is a retired official of the ECA. Before working at the European Court of Auditors ("the ECA"), he had worked in the banking sector in France, from 1974 to 1982.

On 10 November 1994, the complainant requested the ECA to transfer his pension rights deriving from the previously completed period of activity in the banking sector in France to the Community pension scheme. On 13 November 1996, the ECA replied that the transfer of the pension rights acquired in the banking sector was not possible. It further replied that it was for the European Commission to establish a regulation with the Association of Supplementary Pension Schemes ("ARRCO"(1)) in order to make it possible to transfer the whole of the pension rights acquired in France.

On 25 August 2004, the complainant made a request for early retirement to the ECA. On the basis of Article 90(1) of the Staff Regulations, he also requested the Appointing Authority of the ECA to establish his pension rights. On the same day, he wrote a letter to the Commission in which he alleged that the latter had failed to take any measures to ensure that the French authorities respect the provisions of the Staff Regulations related to the transfer of pension rights. The complainant further sent the Commission a copy of this letter of 25 August 2004 to the ECA.

On 6 March 2005, the complainant lodged a complaint on the basis of Article 90(2) of the Staff Regulations against the decision of the ECA not to establish his pension rights, in view of the possibility of his future retirement.

On 21 June 2005, the complainant wrote a letter to the Secretary-General of the ECA in which he asked for early retirement as from 31 December 2005 and for the establishment of his pension rights on the basis of Article 9(2) of Annex VIII of Staff Regulations(2).

On 28 June 2005, the Appointing Authority of the ECA rejected the complainant's appeal of 6 March 2005. It stated that it was true that, pursuant to Article 11(2) of Annex VIII of the Staff Regulations, "[a]n official who enters the service of the Communities after (…) pursuing an activity in an employed or self employed capacity (...) shall be entitled (…) to have paid to the Communities the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities."

However, the Appointing Authority stated that, as long as ARRCO and the complainant could not agree on the amount of the pension to be transferred, the ECA would not be able to establish the complainant's pension rights. The Appointing Authority finally informed the complainant that, on 31 May 2005, the Commission had informed the ECA that the complainant's file was pending and that it would inform the ECA, as soon as possible, of a new proposal for the transfer of the latter's pension rights.

On 25 July 2005, the ECA informed the complainant that it had decided to retire him as from 1 September 2005. On 5 August 2005, the complainant wrote to the Appointing Authority of the ECA. He argued that the decision of 25 July 2005 to retire him as from 1 September 2005 did not correspond to his request of 21 June 2005 for early retirement as from 31 December 2005 and that, consequently, the amount of his pension had been reduced.

On 5 August 2005, the complainant lodged a complaint with the European Ombudsman against the ECA. He submitted the following allegations:

1. The ECA had failed to follow up his request for a transfer of his pension rights presented on 10 November 1994 and reiterated on 25 August 2004.
2. The ECA had wrongly decided to retire him pursuant to Article 9(2) of the Staff Regulations, from 1 September 2005, that is, before the establishment of his pension rights.

The complainant claimed that he should be granted a supplementary premium in the years of pensionable service, which amounted to 10 years, 3 months and 24 days, in order to be able to retire as from 1 January 2006 at the latest(3).

THE INQUIRY

The Ombudsman's approach

The Ombudsman decided to open an inquiry into the complainant's first allegation and informed the complainant accordingly by letter of 5 July 2005.

However, in this letter, the Ombudsman further informed the complainant that, as the internal remedies foreseen by Article 90 of the Staff Regulations did not appear to have been exhausted with regard his second allegation and his claim, he had decided to consider these aspects of the complaint as inadmissible on the basis of Article 2(8) of his Statute. The complainant was informed that these aspects of the complaint would therefore not be covered by the Ombudsman’s inquiry.

The ECA's opinion

The opinion of the ECA on the complaint was, in summary, as follows:

The ECA first questioned the admissibility of the complaint and pointed out that, given that the complaint had been lodged on 5 August 2005, it was only admissible to the extent that it concerned facts known by the complainant as from 5 August 2003. However, notwithstanding this statement, the ECA replied to the complainant's allegation in its entirety, including the references to the facts beginning on 10 November 1994.

The ECA considered that it had fulfilled its administrative obligations. It added that the issue at hand was the refusal of ARRCO to transfer the whole of the pension rights acquired in France by the complainant and that only the Commission was competent to deal with national authorities in this field.

Further to the complainant's request of 1994 for the transfer of his rights, the ECA had contacted the relevant French pension funds. From 1995 to 2004, the ECA had, on several occasions, requested the Commission to take the necessary measures to solve the matter. In November 2004, the ECA had asked the Commission to bring an action against France for failure to fulfil its obligations. From mid-1995 to mid-2005, the Commission had led the ECA to understand that the issue related to the refusal of ARRCO to take into account the contributions paid to French pension funds by the complainant would be solved in the near future.

The ECA further stated that, following the complainant's request of 10 November 1994 to transfer his pension rights, more than half of them had been transferred in September 1997, that is, more than 8 years ago. On 11 July 2005, ARRCO, in its new proposal for the transfer of the complainant's pension rights, accepted to take into account the latter's entire pension rights. The ECA stated that these rights had not yet been transferred to the Community scheme because several points, including the revaluation of the amount to be transferred, had still to be dealt with. However, by the date of the complainant's complaint, that is, 5 August 2005, the issue had already been solved.

The complainant's observations

The complainant stated, in summary, that the facts described by the ECA in its opinion did not correspond to reality. In the complainant's view, there were actually two national bodies concerned by the complaint, ARRCO and the General Association of Pension Institutions for Managerial Staff ("AGIRC"(4)).

The complainant stated that the transfer of his pension rights depended on an agreement concluded between the Commission and the relevant French authorities. In the complainant's view, the ECA had still not informed him whether it felt obliged to apply this agreement.

The complainant further stated that, up to the date of his observations, he had still not received any proposal for the transfer of his pension rights.

The complainant's further letter of 27 February 2006

On 27 February 2006, the complainant sent a further letter to the Ombudsman. He stated that, on 7 December 2005, he had submitted an Article 90(2) complaint to the ECA concerning "two notes containing a proposal for the calculation of his pension rights". On 17 February 2006, the complainant received the reply of the Secretary-General of the ECA to his Article 90(2) complaint.

In his letter to the Ombudsman, the complainant challenged the ECA’s reply and drew the Ombudsman's attention to two points of that reply:

1. In the complainant's view, after all its reassuring statements, the ECA had suddenly referred in its reply to a judgment of the European Court of Justice dated 1989, pursuant to which the ECA would not be responsible for the implementation of Community law by the national authorities.
2. The complainant argued that the statements that the ECA had reiterated in its reply did not correspond to reality.

Further inquiries

In the light of the complainant's observations and his further letter mentioned above, the Ombudsman considered that it appeared that the complainant wished to raise the substantive issue regarding the transfer of his pension rights as well. The Ombudsman therefore requested the ECA to provide an opinion on the substantive issue, namely, the settlement of the complainant's pension rights.

The request for further information

The Ombudsman further requested the ECA to address the following issue:

"In its opinion, the Court of Auditors stated that the complainant's pension rights had not yet been transferred to the Community scheme because several points (among which the revaluation of the amount to be transferred) had still to be dealt with. In his observations, however, the complainant stated that, on the date of his observations, he had still not received any proposal for the transfer of his pension rights. Could the Court of Auditors, in these circumstances, please inform the Ombudsman of the current situation with regard to the transfer of the complainant's pension rights?"

The ECA’s reply

In its reply, the ECA repeated its view that it considered to have fulfilled its administrative obligations in the complainant’s case. After having received, on 4 and 24 November 2005, the proposals for the complainant’s transfer rights from AGIRC and ARRCO, the ECA had established the years of pensionable service to be taken into account for the calculation of the complainant’s pension rights, pursuant to Article 2(2) of Annex VIII of the Staff Regulations. By note of 6 December 2005, the ECA had forwarded a proposal to the complainant on the basis of this calculation. On 7 December 2005, the complainant had submitted an Article 90(2) complaint to the ECA, to which the Secretary-General of the ECA replied on 17 February 2006.

The ECA further stated that, as mentioned in its first opinion, following the complainant's request of 10 November 1994 to transfer his pension rights, more than half of the complainant’s pension rights had already been transferred to the Community scheme in September 1997.

The ECA finally stated that, contrary to the statement made in his observations, the complainant had received a proposal for the transfer of his pension rights, on the basis of the contributions paid to the Retirement Fund of Société Générale ("CRSG"(5)). This proposal had been attached to the notes addressed by the Head of the Human Resources Department to the complainant on 6 December 2005, which contained a proposal for the calculation of his pension rights.

The complainant’s further observations

In his observations on the ECA’s reply, the complainant maintained his allegation. He stated that there was an infringement of the principle of the protection of legitimate expectations. In his view, the argument raised by the ECA pursuant to which the Commission was the EU institution competent to deal with national authorities in the field of the transfer of the pension rights could not justify the position of the ECA. The complainant further stated that there was a breach of the duty to have regard for the welfare of officials and the duty to provide assistance.

Telephone conversation between the complainant and the Ombudsman’s services

On the occasion of a telephone conversation on 11 May 2007, the complainant informed the Ombudsman’s services that, on 23 February 2007, he had lodged an application with the European Union Civil Service Tribunal against the ECA concerning the allegation raised in his complaint to the Ombudsman.

THE DECISION

1 The complainant's allegation

1.1 The complainant is a retired official of the European Court of Auditors ("ECA"). Before working at the ECA, he had worked in the banking sector in France, from 1974 to 1982. On 10 November 1994, the complainant requested the ECA to transfer his pension rights deriving from the previously completed period of activity in the banking sector in France to the Community pension scheme. On 13 November 1996, the ECA replied that the transfer of the pension rights acquired in the banking sector was not possible. It further replied that it was for the European Commission to establish a regulation with the Association of Supplementary Pension Schemes ("ARRCO"(6)), in order to transfer the whole of the pension rights acquired in France. On 25 August 2004, the complainant made a request for early retirement and asked for his pension rights to be determined. On 6 March 2005, the complainant lodged a complaint, on the basis of Article 90(2) of the Staff Regulations, against the ECA's decision on his request, which he did not consider to be satisfactory. On 28 June 2005, the ECA rejected the complainant's appeal. In his complaint to the Ombudsman, the complainant alleged that the ECA had failed to follow up his request for a transfer of his pension rights presented on 10 November 1994 and reiterated on 25 August 2004(7).

1.2 In its opinion, the ECA stated that it considered that it had fulfilled its administrative obligations. It added that the issue at hand was the refusal of ARRCO to transfer the whole of the pension rights acquired in France by the complainant and that only the Commission was competent to deal with national authorities in this field. Further to the complainant's request of 1994 for the transfer of his rights, the ECA had contacted the relevant French pension funds. From 1995 to 2004, the ECA had requested the Commission on several occasions to take the necessary measures to solve the matter. In November 2004, the ECA had asked the Commission to bring proceedings against France for failure to fulfil its obligations. From mid-1995 to mid-2005, the Commission had led the ECA to understand that the issue related to the refusal of ARRCO to take into account the contributions paid by the complainant to French pension funds would be soon solved. The ECA further stated that, following the complainant's request of 10 November 1994 to transfer his pension rights, more than half of them had been transferred in September 1997, that is, more than 8 years ago. On 11 July 2005, ARRCO, in its new proposal for the transfer of the complainant's pension rights, had accepted to take into account the latter's entire pension rights. The ECA stated that these rights had not yet been transferred to the Community scheme because several points, including the revaluation of the amount to be transferred, had still to be dealt with. According to the ECA, however, the issue was already solved by the date the complainant submitted his complaint to the European Ombudsman.

1.3 In his observations, the complainant stated that the facts described by the ECA in its opinion did not correspond to reality. The complainant further stated that the transfer of his pension rights depended on an agreement concluded between the Commission and the relevant French authorities. In the complainant's view, the ECA had still not informed him whether it considered itself obliged to apply this agreement. The complainant further stated that, up to the date of his observations, he had still not received any proposal for the transfer of his pension rights.

1.4 In light of the complainant's observations and his further letter of 27 February 2006, the Ombudsman requested the ECA to provide a supplementary opinion on the substantive issue, namely, the settlement of the complainant's pension rights.

1.5 In its reply, the ECA repeated its view that it considered that it had fulfilled its administrative obligations in the complainant’s file. The ECA further stated that, contrary to the statement made in his observations, the complainant had received a proposal for the transfer of his pension rights, on the basis of the contributions paid to the Retirement Fund of the “Société Générale” ("CRSG"(8)).

1.6 In his further observations, the complainant stated that there had been an infringement of the principle of the protection of legitimate expectations and a breach of the duty to have regard for the welfare of officials and the duty to provide assistance.

1.7 On the occasion of a telephone conversation on 11 May 2007, the complainant informed the Ombudsman’s services that, on 23 February 2007, he had lodged an application with the European Union Civil Service Tribunal against the ECA concerning the allegation raised in his complaint to the Ombudsman(9).

1.8 Article 195 of the Treaty establishing the European Community empowers the Ombudsman to receive complaints "(...) concerning instances of maladministration in the activities of the Community institutions or bodies (…) except where the alleged facts are or have been the subject of legal proceedings." If legal proceedings are brought regarding the same facts as those in the complaint to the Ombudsman, the Ombudsman therefore has to terminate his inquiry. In such a case, the outcome of the inquiries that have been carried out up to that date have to be filed without further action, in accordance with Article 2(7) of the Ombudsman's Statute.

1.9 In view of the information provided by the complainant on the occasion of the telephone conversation of 11 May 2007 with the Ombudsman’s services, the Ombudsman takes the view that the subject-matter of the present complaint and that of the application filed by the complainant with the Civil Service Tribunal (Case F-17/07 )(10) appear to concern the same facts.

2 Conclusion

On the basis of Article 2(7) of the Ombudsman's Statute, the Ombudsman therefore terminates his consideration of the complaint and files the case without further action.

The President of the ECA will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) This acronym stands for "Association des régimes de retraites complémentaires".

(2) Pursuant to this Article, "an official leaving the service before reaching the age of 63 years may request that his retirement pension: (a) be deferred until the first day of the calendar month following that in which he reaches the age of 63; or (b) be paid immediately, provided that he is not less than 55 years of age. In this case, the retirement pension shall be reduced by an amount calculated by reference to the official's age when he starts to draw his pension. (…) The Appointing Authority may decide, in the interests of the service on the basis of objective criteria and transparent procedures introduced by means of general implementing provisions, not to apply the above reduction to the officials concerned."

(3) In his complaint to the Ombudsman, the complainant further alleged that Commission had failed to ensure that the French authorities respect the provisions of the Staff Regulations related to the transfer of his pension rights. Given that this aspect of the case was directed against another European institution, the Ombudsman’s services registered the complaint against the Commission with a new reference 3001/2005/MF.

(4) This acronym stands for "Association générale des institutions de retraite des cadres".

(5) This acronym stands for "Caisse de retraite de la Société Générale".

(6) This acronym stands for "Association des régimes de retraites complémentaires".

(7) In his complaint, the complainant also alleged that the ECA had wrongly decided to retire him pursuant to Article 9(2) of the Staff Regulations, as from 1 September 2005, that is, before the establishment of his pension rights. The complainant claimed that he should be granted a supplementary premium for the years of pensionable service, which amounted to 10 years, 3 months and 24 days, in order to be able to retire as from 1 January 2006 at the latest. In his letter of 5 July 2005, the Ombudsman informed the complainant that, on the basis of Article 2(8) of his Statute, these aspects of the complaint would not be covered by his inquiry.

(8) This acronym stands for "Caisse de retraite de la Société Générale".

(9) Case F-17/07 P. v Court of Auditors, action brought on 23 February 2007.

(10) In this context, the Ombudsman notes that the second paragraph of the part concerning the pleas in law and main arguments of the application is written as follows: "In support of his action, the applicant is putting forward four pleas alleging, respectively: (i) the infringement of a number of provisions of the Staff Regulations of Officials and Annex VIII thereto (in particular, of Article 11(2) and Article 26 of that annex); (ii) breach of the duty to have regard for the welfare of officials and the duty to provide assistance referred to in Article 24 of the Staff Regulations of Officials; (iii) infringement of the principle of equal treatment and non-discrimination; (iv) infringement of the principle of the protection of legitimate expectations."