(Civil service – Former member of the contract staff – Retirement pension – Household allowance – Article 109(3) of the CEOS)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bosman seeks annulment of the Council’s decision of 28 February 2007 refusing to recognise his right to the household allowance for the purposes of the calculation of retirement pension rights, on the basis of Article 109(3) of the Conditions of Employment of Other Servants of the European Communities.

Held: The action is dismissed. The applicant is to pay all the costs, that is to bear his own costs and to pay those of the Council.

Summary

(Conditions of Employment of Other Servants, Art. 109(3))

3. Officials – Pensions – Retirement pension – Calculation

(Conditions of Employment of Other Servants, Art. 109(3))

1.The premiss that the status of local staff has merely been ‘transposed’ within the new category of contract staff created in the new Conditions of Employment of Other Servants is without substance; even if the category of contract staff is indeed intended eventually to replace local staff categories, as it is also intended to replace the category of auxiliary staff, it is nevertheless true that the Community legislature, in creating a new category of staff, also made them subject to different legal and financial rules from those of local staff, and therefore a former member of the local staff cannot consider that he belonged to a category of staff equivalent to that of contract staff.

(see para. 36)

See: F-61/05 Dalmasso v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 78

2.The Community legislature is free to make at any time such amendments to the rules of the Staff Regulations as it considers to be consistent with the interests of the service, and to adopt for the future provisions of the Staff Regulations which are less favourable for the officials or other staff concerned, provided, however, that those specifically affected by the new rules are treated in exactly the same way.

The application of the clear and precise provisions of Article 109(3) of the Conditions of Employment of Other Servants results in identical treatment for all contract staff, in that the provisions are based on the fundamental and absolute condition that, if the household allowance is to be included in the calculation of retirement pension rights, they must have been employed as members of the contract staff for more than three years. Even if, in borderline cases, fortuitous problems must arise from the introduction of any general and abstract system of rules, there are no grounds for taking exception to the fact that the legislature has resorted to categorisation, provided that it is not in essence discriminatory having regard to the objective which it pursues.

(see paras 41, 44, 46-47)

See: 147/79 Hochstrass v Court of Justice [1980] ECR 3005, para. 14

3.Recognition of entitlement to the household allowance for calculating the remuneration of a member of the contract staff cannot be regarded as a precise, unconditional and consistent assurance that the staff member concerned will have that allowance included in the calculation of his pension rights, and in no way confers on the staff member an established right to that allowance, since the remuneration and pension relate to different administrative situations subject to different rules.

(see paras 54-55)