The Commission, in its statement concerning its objection of inadmissibility, observes that the subject-matter of the application is the calculation of the pension received by the applicant since 1 January 1975. The calculation of the pension was established through the notice of assessment of 18 April/20 June 1975 which constitutes a measure adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations of Officials.

It is not disputed that the notice of assessment was issued subject to the condition that the settlement is formally approved by the Commission, but that condition had not the slightest connexion with the question of the reduction of the pension rights. It was purely intended to preclude reliance upon the existence of the notice of assessment in the event of a settlement, contrary to expectations, not being attained.

The allegation made by the applicant in his application to the effect that the description final, which he applied to the notice of assessment in his letter of 21 August 1975, did not refer to the calculation of the rate of pension is irrelevant to the dispute. In fact the communication of the decision of 20 June 1975 rendered the notice of assessment fully valid and it could consequently have been contested as a measure adversely affecting the applicant.

The Commission maintains that the applicant should have lodged a complaint against the notice of assessment within the period of three months laid down by Article 90 (2) of the Staff Regulations of Officials and have then filed an application within the period laid down by Article 91. The applicant failed to do so.

In his letter of 21 August 1975 the applicant set out the reasons why he considers that the interest credited to his account with the temporary joint provident scheme should have been taken into consideration in calculating the reduction of his pension in accordance with the first paragraph of Article 49 and he claimed that the notice of assessment of 18 April/20 June 1975 should consequently be reviewed. He stated then that his letter was to be considered as a request that the institution take a decision relating to him within the meaning of Article 90 (1) of the Staff Regulations of Officials if the administration did not review the notice of assessment.

He did not receive a reply to that letter or to his reminders of 8 December 1975 and 2 February 1976.

In his letter of 15 March 1976, which he considered as a complaint within the meaning of Article 90 (2), the applicant again referred to the matter; on 15 June 1976 he again requested that steps be taken in accordance with his letter.

The Commission finally replied to the applicant by a letter of 9 August 1976.

The application was lodged on 30 September 1976.

The Commission maintains that under no circumstances may the application be said to be admissible, whether it is considered that the various letters from the applicant constitute a request or a complaint.

If, despite its wording, the letter of 21 August 1975 is considered as a complaint within the meaning of Article 90 (2) it must certainly be held that the complaint was lodged within the period prescribed, but that does not apply to the application of 30 September 1976. In accordance with Article 91 (2) it should in fact have been filed within a period of three months from the implied decision of late December 1975 whereby the request submitted in the letter of 21 August 1975 was rejected, that is to say at the latest by the end of March 1976 and not six months later.

Even if it were to be claimed that the applicant's letter dated 21 August 1975 must be considered as a request the application must still be held inadmissible. In fact in that case the implied decision rejecting the request merely constitutes confirmation of the reduction of the pension rights which had already been determined in the notice of assessment.

The Commission, on the basis of the case-law of the Court (in particular the judgment of 14 December 1965 in Case 12/65, Bauer v Commission [1965] ECR 1003), claims that such confirmation by way of an implied decision of rejection is incapable of influencing in any way whatever the time-limit laid down for lodging an application against an act adversely affecting the person concerned and a fortiori incapable of causing a fresh time-limit to run for lodging a fresh complaint.

The opposite view, sustained by the applicant in his application, would mean that a request might be submitted at any time, even concerning very old administrative measures which had become final and that, after an implied or express decision rejecting it had been taken, such measures could be contested by means of a complaint and subsequently an application to the Court of Justice.

The Commission maintains that such a view cannot be considered compatible with the provisions governing judicial time-limits. In this connexion it cites the judgment of the Court of 15 June 1976(Wack v Commission [1976] ECR 1017) in which the Court held that The subsequent letters of the Commission in reply to the requests submitted by the applicant merely confirmed the earlier decision and thus could not result in starting a fresh period to run in favour of the applicant. The Court of Justice thus refused to concede that a request submitted prior to an application, as in the present case, can have the effect of extending the period for submitting an application and dismissed the application as inadmissible on the ground that the complaint against the measure adversely affecting the person concerned was not lodged within the prescribed period.

For the same reasons the Court must in the present case find:

It follows that the application must in any case be dismissed as inadmissible.

The applicant, in his observations on the objection raised by the Commission, recalls that in April 1974 the parties arrived at an agreement on principle. The details of the settlement still required to be approved by the Commission. That approval was to take the form of a letter which still requires to be signed by Mr A. Borschette, Member of the Commission (letter from the defendant's agent of 1 April 1974).

Furthermore, following the discussion the parties were also able to reach agreement on certain details of the settlement. Only the question of the calculation of the reduction pursuant to Article 49 of Annex VIII to the Staff Regulations of Officials remained outstanding.

The applicant maintains that he did not consider either the notice of assessment or the table annexed thereto concerning the calculation of the reduction previously disputed as measures adversely affecting him. He had obtained a promise from the Commission's agent that this matter would be considered by the administration. The administration clearly considered that this problem was a question of principle going beyond the applicant's case. In order to induce his superiors, which ultimately means the Commission, to take a decision, the applicant submitted his request of 21 August 1975.

At the time the applicant still saw no reason to lodge a complaint. The settlement had been properly implemented by the administration. A ground for complaint arose only when the administration persisted in its silence and the request submitted pursuant to Article 90 of the Staff Regulations was by implication rejected.

Remarking that the validity of the notice of assessment was subject to the condition that the settlement should be formally approved by the Commission, the applicant claims that the decision of the Director of Personnel of 20 June 1975 could not extinguish that condition since it was an administrative measure of a subordinate service. The decision of 20 June 1975 did not form part of the notice of assessment. It merely acknowledged the applicant's retirement pension rights and was not concerned with the calculation thereof.

Since the pension rights had been acknowledged in principle they could have been calculated. This could have been effected on the basis of the specific figures and other information contained in the notice of assessment in which the applicant had already concurred. This was what the applicant meant when he later described the ruling as final, in his request of 21 August 1975.

The applicant never concurred in the calculation of the reduction. In his request of 21 August 1975 he expressly requested that the calculation should be reviewed.

The Commission's claim that the reduction Had already been decided in the notice of assessment is at variance with its own behaviour.

In fact the Commission's agent had again given an assurance on 10 June 1975, confirming an agreement between the lawyers, that the administration would communicate with the applicant direct concerning the calculation of the reduction. If he considered that the agreement which he had just confirmed officially was annulled by the decision of the Director of Personnel of 20 June 1975 he should have stated this in the letter whereby he notified the decision. He omitted to do so. The applicant thus continued to believe that the question of the calculation of the reduction would be separately considered by the administration. The principle of legitimate expectations also applies in administrative law. The Commission is estopped from relying on a failure on the part of the applicant (venire contra factum proprium).

It must consequently be held that the objection based on the failure to observe the time-limits for lodging an application has no objective basis.

The applicant adds that he considers that since, if there has been an error in the calculation of a pension and if the award was contrary to the provisions of the Staff Regulations, notices of assessment may at any time be reviewed pursuant to Article 41 of Annex VIII to the Staff Regulations of Officials and the Commission not only may but indeed must undertake the required review.

The Commission, in its statement of defence, states its views inter alia on the argument which the applicant bases on Article 41 which, according to the Commission, does not empower an official at any time whatever to have notices of assessment which have become final confirmed or to request that his pension be reviewed, with the consequence in law that the decision refusing the request could be contested pursuant to Article 91 of the Staff Regulations by means of a complaint followed by an application. But even if Article 41 did permit an official to have the rate of his pension confirmed in certain cases, with the abovementioned consequence, this would be of no assistance to the applicant. In fact the latter is contesting not a calculation of his pension which incorporates an error or omission as is provided in Article 41, but the interpretation of the first paragraph of Article 49 of Annex VIII which led to a reduction in the amount of his pension. Whilst a dispute of this nature ultimately relates to the amount of the pension it is affected by the time-limits for submitting applications laid down in Article 91 of the Staff Regulations and does not fall within the ambit of the provisions of Article 41 of Annex VIII.

With reference to the correspondence between the parties the Commission claims that the applicant was undoubtedly aware in particular that the matter of a reduction of his pension rights had been settled in a manner unfavourable to him by the notice of assessment which had become final with the decision of 20 June 1975. In fact the applicant, in his letter of 21 August 1975, expressly referred not only to that notice, which he requested should be reviewed, but also to the decision.

The applicant was thus aware of the legal situation at the latest on 21 August 1975. He was thus simply mistaken when in his letter of that date he submitted a request instead of lodging a complaint and when after the time-limit of four months had expired he lodged a complaint in December 1975 instead of filing an application before March 1976.

The applicant in his reply to the statement of defence, and the Commission, in its rejoinder, provide further details of their arguments on the various issues already set out in their previous statements.

The applicant disputes the determination of the rate of his pension in respect of the period when he was affiliated to the temporary joint provident scheme before the Staff Regulations came into force. He considers that the provision concerning reduction under the first paragraph of Article 49 of Annex VIII to the Staff Regulations of Officials has been wrongly applied.

When the administration calculated his retirement pension rights it reduced the rate of pension in view of the amounts which the applicant had withdrawn from his account with the temporary joint provident scheme in order to maintain his pension rights in his country of origin. However, for the period during which he was affiliated to that scheme account was taken only of the sum of FB 4545 by way of contributions which remained on his account at the time of the transfer to the Staff Regulations, and the sum of FB 27874, which constituted interest, was not taken into consideration.

The applicant maintains that the provident scheme established by the Staff Memorandum of 19 June 1958 constituted a pension fund. The credit appearing on the individual accounts consisting of contributions and the revenue from their investment were the equivalent of pension rights in the course of acquisition during the period before the Staff Regulations came into force. In fact an official who left the service early without the right to a pension received in particular the amount standing to the credit of his account under the temporary joint provident scheme of the institutions of the Communities at the date when the Staff Regulations entered into force, plus compound interest at the rate of 3·5 % per annum (that is to say up to the date of leaving — Article 12 (a) of Annex VIII to the Staff Regulations of Officials).

When retirement pension rights are reduced pursuant to Article 49 of Annex VIII the decisive question is thus by how much the credit was in fact reduced by the sums withdrawn.

The applicant notes that under the first paragraph of Article 49 pension rights shall be reduced in proportion to the sums withdrawn and claims that in proportion means that it must be established what proportion the sums withdrawn bear to the amount which would have remained when the transfer to the scheme under the Staff Regulations was effected had the withdrawals not been made. The full pension corresponds to the amount remaining which was transferred to the budget of the Community. In other words, the extent of the reduction is established in proportion to the reduction in the account, that is to say the credit, including interest, which occurred as a result of the withdrawals.

However, the administration adopted another course for the reduction. Instead of comparing the sums withdrawn with the credit standing to the account (without withdrawals) it compared them exclusively with the contributions. Furthermore, it failed to take account of the credit balance, which remains without an equivalent from the point of view of pension rights.

The Commission, in its statement of defence, claims that only the provisions of the first paragraph of Article 49 are relevant. Since that article does not provide any information on the point at issue it must be interpreted on the basis of the way in which that provision, and the question of account being taken of interest, fit into the framework of the pension scheme under the Staff Regulations.

The basic principles of that scheme are laid down in Article 77 of the Staff Regulations and in Article 2 of Annex VIII thereto. According to those provisions the amount of the pension is determined exclusively on the basis of the … number of years of pensionable service and of the final basic salary carried by the last grade in which the official was classified for at least one year. Years of pensionable service are calculated in accordance with the provisions contained in Article 3 of Annex VIII which relate exclusively to the period of service completed for one of the Community institutions.

If the interest entered to his account is taken into consideration, as the applicant claims that it should be, in calculating the reduction of pension rights pursuant to the first paragraph of Article 49 this gives a lower rate of reduction and thereby a greater number of years of pensionable service which in its turn affects the amount of the pension. To effect the reduction in this manner is incompatible with Article 3 of Annex VIII. Furthermore, officials who did not make any withdrawals from their account under the temporary joint provident scheme would be unable to benefit from such additional years of pensionable service because they do not come under the provisions of the first paragraph of Article 49 of Annex VIII.

Only the provisions of Article 12 (a) of Annex VIII concerning the severance grant confer upon an official the benefit of the interest entered to his account with the temporary joint provident scheme. Those provisions do not apply to the applicant's case since, after repaying to the Commission the severance grant which had previously been paid to him, together with the interest in question, he now receives a pension on the basis of the settlement arrived at in Case 133/73.

The applicant, in his reply to the statement of defence, confirms that he concurs with the Commission's opinion that the question of reduction must be based solely upon the first paragraph of Article 49 of Annex VIII. That provision forms part of Chapter 8 of Annex VIII, the special provisions of which govern the problem of the transition from the temporary joint provident scheme to the pension scheme under the Staff Regulations.

The applicant emphasizes the basic differences between the provident scheme existing before the Staff Regulations came into force and the pension scheme under the Staff Regulations, and in particular the fact that the provident fund mentioned in Staff Memorandum No 16, constitutes a mutual insurance scheme financed by contributions and the return on the investment thereof, which was to meet its own needs whereas benefits under the scheme pursuant to the Staff Regulations are charged to the budget of the Communities (Article 83 of the Staff Regulations).

The applicant maintains that it is thus quite wrong to base an interpretation of the first paragraph of Article 49 on the role played by that provision and by the account taken of interest within the framework of the pension scheme under the Staff Regulations.

In fact pension rights are determined under Article 48, which forms part of the transitional provisions contained in Chapter 8 of Annex VIII, on the basis of affiliation to the temporary joint provident scheme and not, as the Commission maintains, pursuant to Articles 2 and 3 of Annex VIII, that is to say in terms of the number of years of pensionable service completed in posts under the Staff Regulations.

The applicant disputes the argument of the Commission to the effect that if the interest credited to his account were taken into account for the purposes of the reduction of his pension rights this would place him in a more favourable situation than that of officials who had not effected withdrawals. In fact, it is clear arguing a contrario from the first paragraph of Article 49, that if the official has not exercised his option to effect withdrawals he is entitled to the full pension.… The amounts standing to his credit under the temporary joint provident scheme (Article 51 of Annex VIII) are then to be transferred in full to the Communities. Amounts standing to the credit of an official if no withdrawal has been effected are stated in Staff Memorandum No 16 to be contributions … together with annual compound interest. The total pension is thus the equivalent of the credit balance consisting of contributions plus interest if both have been transferred unreduced to the budget of the Community.

The applicant maintains that the interest on the account has always been taken into consideration if no withdrawal from the account has been effected and, pursuant to the first paragraph of Article 49, the interest must also be taken into consideration where pension rights have to be reduced in view of withdrawals.

The Commission in its rejoinder claims that the temporary provident scheme referred to in Staff Memorandum No 16 was not a pension scheme properly so-called. In fact that scheme did not provide for a pension but only for the payment of a severance grant (contributions and interest) in the event of early termination of service. The corresponding provisions contained in the Staff Memorandum were subsequently re-enacted in the provisions of the Staff Regulations concerning the severance grant and the taking into account of periods of service completed before the Staff Regulations came into force (Annex VIII, first paragraph of Article 48).

On the basis of Article 77 of the Staff Regulations all officials are entitled to a pension, including those who had already entered the service before 1 January 1962. The first paragraph of Article 48 of Annex VIII only lays down that periods of service completed before the Staff Regulations came into force by officials who had already entered the service on 1 January 1962 must be taken into consideration in calculating the pension; it thus supplements Article 3 of Annex VIII with regard to that category of officials.

The applicant's argument, based on the alleged entitlement to the full pension of officials who have not effected withdrawals, is mistaken. In fact, as the Commission has already stated, the temporary provident scheme is not a scheme properly so-called, and, despite what the applicant maintains, it confers no right to a pension. Within the scope of the first paragraph of Article 49 there can accordingly be no equivalence between the full pension and the credit balance consisting of contributions and interest, whether or not those contributions and interest were subsequently transferred to the budget of the Communities.

The Commission maintains that the full pension which the applicant would have enjoyed if he had not made withdrawals from his account with the scheme before the Staff Regulations came into force is to be calculated, as is the case with all his colleagues in the same situation, on the sole basis of years of service and of the last basic salary (Article 77 of the Staff Regulations; first paragraph of Article 48 of Annex VIII).

In conclusion it must be found that the applicant's request that in reducing his pension rights pursuant to the first paragraph of Article 49 of Annex VIII regard should be had to the interest credited to his account with the temporary joint provident scheme is incompatible with the principles governing the pension scheme established under the Staff Regulations.

The contested notice of assessment of 18 April/20 June 1975 which did not take into account the interest credited to the applicant's account with the temporary joint provident scheme when his pension rights were reduced pursuant to the first paragraph of Article 49 of Annex VIII, like all previous instances of the application of this provision, is thus lawful and consequently the application must be dismissed as unfounded.