Transfer of pension rights acquired under Belgian schemes

additional information

This problem has already been examined in a number of administrative notices published on 19 July 2005 (No. 58-2005), 2 September 2005 (No. 65-2005), 3 March 2006 (No. 14-2006), 8 August 2006 (No. 40-2006) and 25 January 2007 (No. 07-2007).

Since the last administrative notice, the Commission has further analysed the judgment of the European Union Civil Service Tribunal (CST) in case F-92/05 (Emmanuel Genette v Commission).

Belgium had announced that it would lodge an appeal against this judgment, which it has indeed done on 26 March 2007, on the basis of the following main arguments:

1. The CST has interpreted Belgian law governing the transfer of pension rights acquired under Belgian schemes to the Community scheme, whereas it is up to Belgian courts to interpret Belgian law;
    
2. In its interpretation of the Belgian law, the CST has decided that the withdrawal of the transfer decisions would not affect the rights of the Belgian pension schemes, whereas Belgium on the contrary considers that there would be financial implications for the Belgian pension schemes.

The Commission's interests are different from those of Belgium. The Commission has nevertheless likewise decided to lodge an appeal against the Genette judgment.

Indeed, the Commission believes that the Genette judgment can place the parties involved – officials, the Commission and the Belgian authorities – in a situation of great legal uncertainty.

The withdrawal of the transfer decisions means that the interested party can submit to the relevant Commission services a new request to transfer its pension rights, on the basis that the modalities for transfer foreseen in the Belgian legislation of 2003 are more favourable.

For the Commission, this means that the pension rights acquired under the Belgian schemes by Mr Genette and the officials and other agents affected by the judgment are not transferred to the Community scheme. The Belgian authorities have made it clear that any new requests for transfer will be deemed inadmissible in view of the applicable Belgian provisions. Those concerned would then have to launch legal proceedings before the relevant Belgian courts in order to have their requests declared admissible.

In the event the Belgian courts follow the interpretation of the national legislation advocated by the competent Belgian authorities, hence rejecting the actions brought before them, the interested parties who have chosen to withdraw their requests for transfer will be confronted with the following situation:

1. The initial decision to transfer their pension rights, calculating pensionable service on the basis of the Belgian law of 1991, would be withdrawn as a consequence of the CST's judgment;
    
2. A new transfer decision based on the Belgian legislation of 2003 can not be taken due to the inadmissibility, under Belgian law, of such a new request.

In sum, the Genette judgment could lead to a situation in which Mr Genette and those officials to whom the judgment could apply will have lost the possibility to transfer their pension rights to the Community scheme.

While awaiting a judgment by the Court of First Instance on the two appeals mentioned above, the Commission is obliged to implement the Genette judgment by the CST. The Commission will therefore withdraw its decisions in which the calculation of Mr Genette's pensionable service was based on the law of 1991, allowing Mr Genette to introduce a new request to transfer his pension rights.

In view of the legal uncertainty referred to above, the Commission advises other officials in the same situation not to avail themselves of the Genette judgment until the Court of First Instance has clarified the situation. However, for those who nevertheless wish to do so, the Commission will deal with their requests in the light of the Genette judgment, as indicated in administrative notice No. 65-2005.