61980CJ0137_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 137/80
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
KINGDOM OF BELGIUM, REPRESENTED BY THE MINISTER OF FOREIGN AFFAIRS, WHOSE OFFICES ARE AT 2 RUE QUATRE-BRAS, 1000 BRUSSELS, AND HAVING APPOINTED AS AGENT ROBERT HOEBAER, DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS, EXTERNAL TRADE AND DEVELOPMENT COOPERATION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS, RESIDENCE CHAMPAGNE,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS
OBLIGATIONS UNDER THE PROVISIONS OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES INASMUCH AS IT REFUSES IN PRINCIPLE TO LAY DOWN THE DETAILED RULES FOR TRANSFERRING TO THE COMMUNITY PENSION SCHEME SUMS DUE TO BE PAID UNDER BELGIAN PENSION SCHEMES OR THE ACTUARIAL EQUIVALENT OF FORMER PENSION RIGHTS ACQUIRED THEREUNDER,
Grounds
1 BY APPLICATION RECEIVED AT THE COURT ON 9 JUNE 1980, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY BY OMITTING TO LAY DOWN THE DETAILED RULES FOR TRANSFERRING TO THE COMMUNITY PENSION SCHEME SUMS DUE TO BE REPAID UNDER BELGIAN PENSION SCHEMES OR THE ACTUARIAL EQUIVALENT OF PENSION RIGHTS ACQUIRED THEREUNDER, AS PROVIDED FOR BY ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS ( REGULATION ( EEC EURATOM, ECSC ) NO 259/68 OF THE COUNCIL OF 29 FEBRUARY 1968, OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 30 ).
2 THAT PROVISION PROVIDES AS FOLLOWS :
' ' AN OFFICIAL WHO ENTERS THE SERVICE OF THE COMMUNITIES AFTER LEAVING THE SERVICE OF A GOVERNMENT ADMINISTRATION OR OF A NATIONAL OR INTERNATIONAL ORGANIZATION OR OF AN UNDERTAKING SHALL HAVE THE RIGHT, ON BECOMING ESTABLISHED WITH THAT COMMUNITY, TO PAY TO IT EITHER :
- THE ACTUARIAL EQUIVALENT OF RETIREMENT PENSION RIGHTS ACQUIRED BY HIM IN THE GOVERNMENT ADMINISTRATION, NATIONAL OR INTERNATIONAL ORGANIZATION OR UNDERTAKING ; OR
- THE SUMS REPAID TO HIM FROM THE PENSION FUND OF THE GOVERNMENT ADMINISTRATION, ORGANIZATION OR UNDERTAKING AT THE DATE OF HIS LEAVING ITS SERVICE .
IN SUCH CASES THE INSTITUTION IN WHICH THE OFFICIAL SERVES SHALL, TAKING ACCOUNT OF HIS GRADE ON ESTABLISHMENT, DETERMINE THE NUMBER OF YEARS OF PENSIONABLE SERVICE WITH WHICH BE SHALL BE CREDITED UNDER ITS OWN PENSION SCHEME IN RESPECT OF THE FORMER PERIOD OF SERVICE, ON THE BASIS OF THE AMOUNT OF THE ACTUARIAL EQUIVALENT OR SUMS REPAID AS AFORESAID . ' '
3 THE COMMISSION TAKES THE VIEW THAT ARTICLE 11 ( 2 ) CONSTITUTES A MANDATORY PROVISION INTENDED TO ENSURE THAT OFFICIALS HAVE A PENSION SCHEME WHICH TAKES ACCOUNT OF THE WHOLE OF THE SERVICE WHICH THEY HAVE PERFORMED DURING THEIR CAREERS IN NATIONAL, INTERNATIONAL OR COMMUNITY EMPLOYMENT AND MUST THEREFORE BE INTERPRETED AND PUT INTO EFFECT THROUGHOUT THE COMMUNITY WITHOUT REGARD TO THE DISPARITIES BETWEEN NATIONAL CONTEXTS OR BETWEEN SCHEMES EXISTING WITHIN THE SAME NATIONAL CONTEXTS . IT FOLLOWS, ACCORDING TO THE COMMISSION, THAT THE PROVISION PLACES AN OBLIGATION ON EACH MEMBER STATE TO MAKE THE TRANSFER POSSIBLE AND TO CARRY IT OUT WHEN REQUESTED TO DO SO BY AN OFFICIAL .
4 THAT INTERPRETATION IS CONTESTED BY THE BELGIAN GOVERNMENT WHICH PUTS FORWARD A SET OF ARGUMENTS BASED ON THE ONE HAND ON THE GENERAL CHARACTERISTICS OF THE STAFF REGULATIONS AND ON THE OTHER ON THE WORDING, SUBJECT-MATTER AND CONTEXT OF THE PROVISION IN QUESTION .
5 IN THE OPINION OF THE BELGIAN GOVERNMENT, THE STAFF REGULATIONS OF OFFICIALS DO NOT HAVE THE EFFECT OF IMPOSING OBLIGATIONS ON MEMBER STATES AS THE FORMER EMPLOYERS OF CERTAIN OFFICIALS . THE STAFF REGULATIONS, LIKE ANY SUCH REGULATIONS OF A NATIONAL OR INTERNATIONAL BODY, IT IS CLAIMED, ARE A SET OF RULES WITHIN AN INSTITUTION WHICH GOVERN SOLELY THE LEGAL POSITION OF THE EMPLOYER AND ITS SERVANTS, IN THIS CASE THE COMMUNITIES AND THEIR OFFICIALS . AS SUCH, THEY CANNOT PLACE LEGAL OBLIGATIONS ON THIRD PARTIES WHO ARE NOT PRIVY TO THAT RELATIONSHIP .
6 MOREOVER, THE BELGIAN GOVERNMENT CLAIMS THAT TO ACCEPT THE CONTRARY VIEW WOULD BE TO ASCRIBE TO THE PROVISION IN QUESTION ' ' A SCOPE WIDER THAN THAT RECOGNIZED BY THE GENERAL LAW ' '
INASMUCH AS IT WOULD GOVERN WITH RETROACTIVE EFFECT A PRIOR LEGAL RELATIONSHIP UNRELATED TO THE LEGAL RELATIONS CREATED BY THE STAFF REGULATIONS .
7 AS THE COMMISSION EMPHASIZED, THE STAFF REGULATIONS OF OFFICIALS WERE LAID DOWN BY REGULATION NO 259/68 OF THE COUNCIL OF 29 FEBRUARY 1968 WHICH POSSESSES ALL THE CHARACTERISTICS SET OUT IN THE SECOND PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY UNDER WHICH A REGULATION HAS GENERAL APPLICATION . IT IS BINDING IN ITS ENTIRETY AND IS DIRECTLY APPLICABLE IN ALL MEMBER STATES .
8 IT FOLLOWS THAT THE STAFF REGULATIONS, IN ADDITION TO HAVING EFFECTS IN THE INTERNAL ORDER OF THE COMMUNITY ADMINISTRATION, ARE BINDING ON MEMBER STATES IN SO FAR AS THEIR COOPERATION IS NECESSARY IN ORDER TO GIVE EFFECT TO THOSE REGULATIONS .
9 CONSEQUENTLY, WHERE A PROVISION OF THE STAFF REGULATIONS REQUIRES NATIONAL MEASURES FOR ITS APPLICATION, THE MEMBER STATES ARE BOUND UNDER ARTICLE 5 OF THE EEC TREATY TO ADOPT ALL APPROPRIATE MEASURES, WHETHER THEY BE GENERAL OR PARTICULAR .
10 THE BELGIAN GOVERNMENT ALSO CLAIMS THAT ITS INTERPRETATION OF THE STAFF REGULATIONS IS CONFIRMED BY THE VERY WORDING OF ARTICLE 11 ( 2 ). THE FACT THAT ACCORDING TO THAT PROVISION AN OFFICIAL HAS A RIGHT TO THE TRANSFER INDICATES, ACCORDING TO THE BELGIAN GOVERNMENT, THAT THE SOLE OBLIGATION WHICH CAN ARISE FROM THAT RIGHT IS THAT OF THE EUROPEAN COMMUNITIES TO ACCEPT THE PAYMENT IN THEIR CAPACITY AS THE EMPLOYER OF THE PERSON CONCERNED WHERE SUCH A PAYMENT IS PERMITTED BY THE LEGISLATION OF THE STATE CONCERNED .
11 IT MUST BE STATED IN REPLY TO THAT ARGUMENT THAT ARTICLE 11 ( 2 ), BY ESTABLISHING FOR THE BENEFIT OF OFFICIALS A SYSTEM FOR THE TRANSFER OF PENSION RIGHTS, WAS INTENDED TO FACILITATE MOVEMENT FROM NATIONAL EMPLOYMENT, WHETHER PUBLIC OR PRIVATE, TO THE COMMUNITY ADMINISTRATION AND THUS ENSURE THAT THE COMMUNITIES HAVE THE BEST POSSIBLE CHANCE OF BEING ABLE TO CHOOSE QUALIFIED STAFF WHO ALREADY POSSESS SUITABLE EXPERIENCE .
12 ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS, WHICH IS INTENDED TO ENABLE THE COMMUNITY SCHEME TO BE COORDINATED WITH THE NATIONAL SCHEMES, SEEKS, MOREOVER, TO ENSURE THAT COMMUNITY OFFICIALS MAY RETAIN THE RIGHTS WHICH THEY HAVE ACQUIRED IN THEIR OWN STATE EVEN THOUGH THEY MAY BE LIMITED, OR EVEN CONDITIONAL OR FUTURE, OR INSUFFICIENT TO GIVE RISE TO THE IMMEDIATE AWARD OF A PENSION, AND ALSO TO ENSURE THAT ACCOUNT MAY BE TAKEN OF THOSE RIGHTS BY THE PENSION SCHEME TO WHICH THE PERSONS CONCERNED ARE AFFILIATED AT THE END OF THEIR CAREERS, IN THIS CASE THE COMMUNITY SCHEME .
13 FOR THOSE REASONS IT IS CLEAR THAT THE ' ' RIGHT ' '
MENTIONED IN ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS IS INTENDED TO CONFER UPON OFFICIALS A RIGHT WHICH THEY MAY FREELY EXERCISE . THE EXERCISE OF THAT RIGHT WOULD BE JEOPARDIZED IF, AS THE BELGIAN GOVERNMENT MAINTAINS, THE MEMBER STATES WERE TO RETAIN THE RIGHT TO REFRAIN FROM ADOPTING THE MEASURES NECESSARY IN ORDER TO GIVE EFFECT TO THE PROVISION . INDEED, THE REFUSAL OF A MEMBER STATE TO LAY DOWN RULES FOR THE TRANSFER OF PENSION RIGHTS WOULD HAVE THE EFFECT OF DEPRIVING OFFICIALS OF THE COMMUNITIES OF THE VERY RIGHT TO EXERCISE THE OPTION GRANTED TO THEM BY THE STAFF REGULATIONS .
14 THE BELGIAN GOVERNMENT ' S ARGUMENT BASED ON A COMPARISON OF PARAGRAPHS ( 1 ) AND ( 2 ) OF ARTICLE 11 MUST ALSO BE REJECTED . FIRST, THE DIFFERENT WORDING OF THE TWO PROVISIONS IS IN ITSELF AN INDICATION OF THEIR DIFFERENT SCOPE . FURTHERMORE, THE FACT THAT THE TRANSFER IS COMPULSORY IN ONE INSTANCE BUT IS NOT IN THE OTHER IS JUSTIFIED BY THE FACT THAT IN THE CASE OF ARTICLE 11 ( 1 ), WHERE FUNDS REPRESENTING PENSION RIGHTS ACQUIRED UNDER THE COMMUNITIES '
SCHEME ARE TRANSFERRED TO ANOTHER BODY, IT IS ESSENTIAL TO ENSURE THE VALID TRANSFER OF THOSE RIGHTS BY SECURING THE AGREEMENT OF THAT BODY . ON THE OTHER HAND, IN THE CASE OF ARTICLE 11 ( 2 ) THE EFFECTS OF THE TRANSFER TO BE MADE TO THE COMMUNITIES '
PENSION SCHEME MAY BE DETERMINED BY THE COMMUNITIES ALONE BOTH IN THEIR OWN INTERESTS AND IN THOSE OF THEIR OFFICIALS .
15 THE CONCLUSION OF AGREEMENTS PROVIDING THE CONTRACTUAL BASIS FOR THE TRANSFER TO THE COMMUNITY SCHEME MAY BE ENVISAGED ONLY WHERE OFFICIALS COME FROM THE ADMINISTRATIONS OF THIRD PARTIES VIS-A-VIS THE COMMUNITY, SUCH AS INTERNATIONAL ORGANIZATIONS WHICH ARE NOT SUBJECT TO COMMUNITY LAW . THAT IS NEITHER NECESSARY NOR JUSTIFIED WHERE THE OFFICIAL ' S FORMER EMPLOYER IS A MEMBER STATE WHICH IS SUBJECT TO THE RULES LAID DOWN BY COMMUNITY INSTITUTIONS ACTING WITHIN THE SCOPE OF THEIR POWERS . MORE GENERALLY, THE SAME HOLDS TRUE FOR A PUBLIC OR PRIVATE BODY WHOSE PENSION SCHEME IS SUBJECT TO THE LEGISLATION OR RULES MADE BY A PUBLIC AUTHORITY OF THAT STATE .
16 FINALLY, THE BELGIAN GOVERNMENT PLEADS DIFFICULTIES OF A TECHNICAL NATURE WHICH MAKE THE CALCULATION OF PENSION RIGHTS ACQUIRED UNDER THE NATIONAL SCHEME IMPOSSIBLE IN PRACTICE BEFORE THE PERSON CONCERNED FINALLY RETIRES .
17 IN THAT REGARD, THE DIFFICULTIES WHICH A MEMBER STATE IS SAID TO HAVE TO SURMOUNT IN ADOPTING THE MEASURES NECESSARY IN ORDER TO ENABLE ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS TO BE PUT INTO EFFECT, AND IN PARTICULAR THOSE OF A TECHNICAL NATURE, SUCH AS THE ALLEGED IMPOSSIBILITY OF DETERMINING THE VALUE OF THE RIGHTS ACQUIRED BY OFFICIALS IN THE VARIOUS BRANCHES OF THE PUBLIC SERVICE BEFORE THE DATE ON WHICH THEY FINALLY RETIRE OR THE FACT THAT THE PENSIONS TO WHICH THEY ARE ENTITLED ARE LIABLE TO INCREASES OR REDUCTIONS DECIDED UPON BY THE LEGISLATURE, CANNOT EXPUNGE THE FAILURE TO FULFIL AN OBLIGATION WITH WHICH THE STATE IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW, A MEMBER STATE MAY NOT PLEAD PROVISIONS, PRACTICES OR CIRCUMSTANCES EXISTING IN ITS INTERNAL LEGAL SYSTEM IN ORDER TO JUSTIFY A FAILURE TO COMPLY WITH OBLIGATIONS RESULTING FROM A COMMUNITY REGULATION .
18 IN THIS CASE THE BELGIAN GOVERNMENT IS BOUND TO SELECT AND PUT INTO EFFECT SPECIFIC MEASURES WHICH WILL MAKE POSSIBLE THE EXERCISE OF THE RIGHT GRANTED TO OFFICIALS TO TRANSFER RIGHTS ACQUIRED IN NATIONAL EMPLOYMENT TO THE COMMUNITIES '
PENSION SCHEME . IT SHOULD, MOREOVER, BE OBSERVED THAT BELGIAN LEGISLATION IN ITS PRESENT STATE PREVENTS NEITHER THE TRANSFER OF PENSION RIGHTS WHERE STATE OFFICIALS MOVE TO PRIVATE-SECTOR EMPLOYMENT NOR, MORE GENERALLY, TRANSFERS FROM ONE PENSION SCHEME TO ANOTHER WITHIN BELGIUM ITSELF .
19 THE BELGIAN GOVERNMENT ' S REFUSAL TO ALLOW THE TRANSFER OF PENSION RIGHTS TO THE COMMUNITY SCHEME WHEN OTHER MEMBER STATES HAVE ALREADY DONE SO DESTROYS THE EQUALITY OF COMMUNITY OFFICIALS FROM OTHER MEMBER STATES WITH THOSE FROM BELGIUM BY INTRODUCING DISCRIMINATION AGAINST THE LATTER . THAT REFUSAL MIGHT ALSO IMPEDE THE RECRUITMENT BY THE COMMUNITY OF BELGIAN OFFICIALS WITH A CERTAIN LENGTH OF SERVICE SINCE MOVEMENT FROM THE NATIONAL ADMINISTRATION TO THAT OF THE COMMUNITY WOULD ENTAIL THE LOSS OF PENSION RIGHTS TO WHICH THEY WOULD BE ENTITLED IF THEY HAD NOT ACCEPTED EMPLOYMENT WITH THE COMMUNITY .
20 IT IS CLEAR FROM THE FOREGOING THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY BY REFUSING TO ADOPT THE MEASURES NECESSARY FOR THE TRANSFER TO THE COMMUNITY PENSION SCHEME OF SUMS DUE TO BE REPAID IN RESPECT OF OR THE ACTUARIAL EQUIVALENT OF RETIREMENT PENSION RIGHTS
ACQUIRED UNDER THE BELGIAN PENSION SCHEME, AS PROVIDED FOR BY ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .
Decision on costs
COSTS
ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE KINGDOM OF BELGIUM HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT THE KINGDOM OF BELGIUM, BY REFUSING TO ADOPT THE MEASURES NECESSARY FOR THE TRANSFER TO THE COMMUNITY PENSION SCHEME OF SUMS DUE TO BE REPAID UNDER THE BELGIAN PENSION SCHEME OR THE ACTUARIAL EQUIVALENT OF RETIREMENT PENSION RIGHTS ACQUIRED THEREUNDER, AS PROVIDED FOR BY ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ;
2.ORDERS THE KINGDOM OF BELGIUM TO PAY THE COSTS .