Opinion of Mr Advocate General Darmon delivered on 24 January 1989. - François Retter v Caisse de pension des employés privés. - Reference for a preliminary ruling: Cour de cassation - Grand Duchy of Luxemburg. - Transfer of officials' pensions rights to the Community scheme. - Case 130/87.



European Court reports 1989 Page 00865



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . By judgments of 9 April 1987, the Cour de cassation ( Court of Cassation ) of the Grand Duchy of Luxembourg referred two questions to the Court for a preliminary ruling on the interpretation of the provisions permitting Community officials to transfer to their pension scheme rights acquired under a national scheme before they entered the Community civil service . The first of those questions, raised in Decker v Caisse de pension des employés privés, was the subject of a ruling of the Court in its judgment of 5 October 1988 . ( 1 ) The other question, which refers to Mr François Retter' s position, is still before the Court in these proceedings . After a hearing relating to both cases had taken place, the Court took the view, in accordance with my Opinion, that it was necessary to reopen the oral procedure in Mr Retter' s case .

2 . Let me first recall to mind the elements of fact and law essential to an understanding of the problems which the Court is called upon to resolve .

3 . Mr Retter was established as an official of the ECSC on 5 February 1962 . He was thus subject to the Staff Regulations of Officials of the ECSC . Those regulations were laid down in a regulation adopted by the Committee of Presidents of the ECSC . The first subparagraph of Article 11(2 ) of Annex VIII thereto provided 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 :

( i ) the actuarial equivalent of retirement pension rights acquired by him in the government administration, national or international organization or undertaking; or

( ii ) the sums repaid to him from the pension fund of the government administration, organization or undertaking at the date of his leaving its service ".

Article 2 of that regulation provided that it was to enter into force on 1 January 1962 . It should be mentioned that, essentially, the regulation re-enacted, with adaptations purely of a drafting nature, the provisions of Regulation No 31 ( EEC ) and No 11 ( EAEC ) of the Councils of 18 December 1961 laying down Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, ( 2 ) which also entered into force on 1 January 1962 .

4 . Before being established as an official of the ECSC, Mr Retter had been employed by a company in Luxembourg and had been affiliated for 61 months to the Caisse de pension des employés privés ( Pension fund for private employees, hereinafter referred to as "the Fund "). At that time, the Law of 29 August 1951 on pension insurance for private employees was in force . Article 64 of that law provided that where the insured, after completing at least 30 months of contributions, left the insurance scheme without qualifying for a pension, he was entitled to the surrender value (" indemnité de rachat ") and under Article 65, he thereby lost "all rights to benefits from the Fund ". Article 66 of that law laid down a time-limit of two years within which the surrender value must be claimed, calculated from the day on which no further contributions were due to the Fund . It was stated at the hearing that the surrender value provided for in the Law of 1951 covered only the contributions made by the employee .

5 . It is entirely undisputed that the scheme for payment of the surrender value under the Law of 1951 could not take the place of implementation in Luxembourg law of the right of transfer provided for in the Staff Regulations of Officials of the Communities . However, for Community officials who had paid contributions to a Luxembourg pension scheme, it was the only means of obtaining repayment of their contributions after ceasing to be affiliated to that scheme .

6 . Thus, Community officials established after being affiliated to a Luxembourg pension scheme adopted one of the following two approaches . Some waited and did not claim the surrender value of their contributions under the Law of 1951 . Others, such as Mr Retter, complied with the letter of that law, which, as I have said, laid down a time-limit of two years, and claimed the surrender value of their contributions so as not to lose the right to repayment, which they regarded as otherwise inevitable .

7 . In Luxembourg, the detailed rules for the exercise of the right of transfer provided for in the Staff Regulations of Officials of the Community were laid down in the Law of 14 March 1979 . It amended Article 18 of the Law of 16 December 1963 by providing that contributions paid to a Luxembourg pension scheme may, on the application of the insured, be transferred to the Community pension scheme with compound interest at 4% per annum calculated on 31 December of each year of affiliation, the application to be made within one year of establishment . As was made clear at the hearing, that law, which provided that the right to claim the surrender value covered both employer' s and employee' s contributions, applied to persons already established as Community officials on condition that they submitted their claims within one year from its entry into force, failing which their claims would not be admitted .

8 . The new law thus permitted Community officials who had not up to that point claimed the surrender value of their contributions under the Law of 1951 to take advantage of the new rules implementing the right of transfer provided for in the Staff Regulations . In regard to them, therefore, the fact of not having made a claim under the Law of 1951 did not operate to their disadvantage, even though the time-limit had expired .

9 . On the other hand, officials who, like Mr Retter, had complied with the letter of the Law of 1951 and claimed the surrender value of their contributions for fear of being out of time were regarded, in accordance with Article 65 of that law, as having lost all rights connected with those contributions, which prevented them from taking advantage of the new rules laid down in the Law of 1979 . Whatever may have been suggested to the Court at the hearing, it does not appear that the Luxembourg courts at any time referred to the fact that Mr Retter might have been entitled to claim the benefit of the Law of 1979 within one year of its entry into force . In particular, it is clear from a reading of the decision of the conseil supérieur des assurances sociales ( Social Security Appeals Board ) of 2 July 1986 that Mr Retter' s application, submitted in February 1983, which sought to take advantage of the rules laid down in the Law of 1979 by procuring the annulment of the 1964 arrangement for payment of the surrender value, was rejected by the Fund solely on the basis of Article 65 of the Law of 1951, according to which "the payment of the surrender value which was sought and obtained ... entailed the definitive liquidation (( of the insured' s )) account with the Fund ... " ( 3 ) and that at no stage in the proceedings before that national court had it been argued that the application was out of time, having regard to the time-limit laid down in the Law of 1979 .

10 . However that may be, without referring to that time-limit, the question put to the Court by the Cour de cassation of the Grand Duchy of Luxembourg seeks essentially to determine whether the effect of the entry into force in 1962 of the Staff Regulations of Officials of the ECSC, providing for the right of transfer, was not to preclude the application of a scheme for the repayment of surrender values such as that provided for in the Luxembourg Law of 1951 . If that question were answered in the affirmative, the surrender value paid to Mr Retter in 1964 could be regarded as wrongly paid and that would place him in the same position as Community officials who had decided to wait and see .

11 . It is not possible to determine what effects on domestic law the Staff Regulations of Officials of the ECSC, in particular the provisions thereof concerning the transfer of pension rights, could have had without first answering another question, namely whether those regulations and provisions could produce any effect whatsoever in domestic law . That question is made necessary in view of the procedure whereby the regulation laying down the Staff Regulations of Officials of the ECSC was adopted in 1962 and it is precisely that which justified the reopening of the oral procedure .

12 . The provisions concerning the transfer of pension rights were identical in the Staff Regulations adopted in 1962 for, on the one hand, the officials of the ECSC and, on the other, for those of the EEC and the EAEC . However, although, in regard to the latter, the Staff Regulations were laid down in a measure taking the legal form of a regulation of the Councils of the two Communities, published in the Official Journal of the European Communities and stating in the last subparagraph of its sole article that it was "binding in its entirety and directly applicable in all Member States", another procedure was followed in regard to the ECSC . In accordance with the provisions of Article 78 of the ECSC Treaty and the third subparagraph of Article 7 of the Convention on the Transitional Provisions provided for in Article 85 of that treaty, the Staff Regulations of Officials of the ECSC were laid down in a regulation adopted by the committee composed of the President of the Court of Justice, the President of the High Authority, the President of the Assembly and the President of the Council, without being published in the Official Journal or anywhere else and without its being provided that those Staff Regulations were directly applicable in all the Member States .

13 . Thus, although I do not think that the applicability in all the Member States of the Staff Regulations of Officials of the EEC and the EAEC, which entered into force on 1 January 1962, requires any particular explanation, the same is not true of the legally separate Staff Regulations of Officials of the ECSC, which entered into force on the same date .

14 . It should first be stated that the difficulties which could arise by virtue of the fact that the Staff Regulations of Officials of the ECSC were not published are relatively limited . That is so first inasmuch as, essentially, the provisions of those regulations concern only the relations between the institutions and their staff and, from that point of view, the distribution to each member of staff of a copy of the text is equivalent to notice valid in law . It is so also because, in 1968, the separate Staff Regulations applying to officials of the ECSC, on the one hand, and to those of the other two Communities, on the other, were replaced by the Staff Regulations of Officials of the European Communities, laid down in Regulation ( EEC, Euratom, ECSC ) No 259/68 of the Council of 29 February 1968, which entered into force on 5 March 1968, the day following its publication in the Official Journal of the European Communities . ( 4 ) The final provision of that regulation states that it is "binding in its entirety and directly applicable in all Member States ". Thus, it is only between 1 January 1962 and 5 March 1968 that the problem of the applicability in the Member States of the provisions of the Staff Regulations of Officials of the ECSC arises .

15 . However, it is precisely between those two dates, in 1964, that there was applied to Mr Retter a provision of Luxembourg law the compatibility of which with the provisions of the Staff Regulations of Officials of the ECSC concerning the transfer of pension rights is called in question by means of the present proceedings for a preliminary ruling .

16 . It is certainly to be regretted that the regulation laying down the Staff Regulations of Officials of the ECSC was not published in the same way as the regulations laying down the Staff Regulations of Officials of the EEC and the EAEC . The difference in that regard may be such as to sow doubts as to the direct applicability in the Member States of certain provisions of the Staff Regulations of Officials of the ECSC; if they were not directly applicable, those provisions would be ineffective, since their effects are intended to be produced not just in the relations between the Community institutions and their staff but also in relations under national law between Community officials and institutions of the Member States . The provisions concerning transfer to the Community pension scheme of rights acquired under a national scheme before an official' s joining the Community civil service constitute a perfect illustration of the fact that certain rules of the Staff Regulations are so designed as to produce effects outside the internal sphere of the Community institutions and not just within it . Moreover, it must be recognized that if, between 1962 and 1968, the Staff Regulations of Officials of the ECSC were not directly applicable, this would, for a period of six years, place those who were subject to those regulations in a situation which it would not be unfair to describe as discriminatory in comparison to that of officials of the other two Communities, with the harmful consequences which the Court can easily imagine .

17 . At the hearing, the Commission informed the Court that in 1962 it ultimately abandoned a plan to adopt a single set of staff regulations for officials of the three Communities . If that plan had not been abandoned, those regulations would in all probability have been contained in the regulation adopted on 18 December 1961, cited above, the publication of which in the Official Journal and the express reference to its direct applicability in all Member States would have made it possible to avoid certain problems .

18 . Since that was not the case, it must be asked whether the fact that the Staff Regulations of Officials of the ECSC was not published could cause its provisions not to be directly applicable in a Member State .

19 . At the hearing, the Fund indicated that that question may be decisively answered in the negative on the basis of Article 15 of the ECSC Treaty . That argument may be disposed of rapidly inasmuch as the third paragraph of Article 15 deals only with applicability "by the mere fact of publication" of decisions, recommendations and opinions of the High Authority . However, it is the applicability of the provisions of a regulation of the committee of the four Presidents of the institutions of the ECSC which is at issue here and that has nothing to do with the terms of Article 15 .

20 . In seeking a solution to the problem before the Court, I had thought first of basing myself on certain information supplied to the Court at the hearing and to propose the following solution : the fact that the Staff Regulations of Officials of the ECSC, which entered into force on 1 January 1962, were not published cannot be relied upon by any institution of a Member State as a ground for refusing to apply one of the provisions thereof if that institution was clearly aware of the provisions of those Staff Regulations .

21 . In addition to the broad scope which it gives for reasoning by analogy, such a formulation, or a similar one, seems to me, on reflection, to have a serious, not to say inherent, defect, namely that it posits a sort of relative direct applicability - I am almost tempted to speak of random direct applicability - of the provisions of the Staff Regulations of Officials of the ECSC . Direct applicability, since it would depend on the attitude of the many institutions concerned in the Member States, would become purely contingent . The same provision could be directly applicable in one Member State and not in another, or even directly applicable in a situation involving an institution of a Member State and not in a comparable situation involving another institution of the same Member State . Needless to say, such a relativistic solution is unacceptable in the light of the fundamental principle of the Community legal order which requires that, in the absence of an express provision to the contrary, the rules of Community law, which are identical for all the Member States, be uniformly applied in them .

22 . Moreover, I would like to stress in a general manner, and with particular insistence, the need to avoid giving an answer in terms which would allow of dangerous extrapolation . It is necessary to be very alert to the possible use by parties in other cases, which are less concerned with the question of equity, of terms which had been inspired only by a very praiseworthy desire to "right" a situation . I know that the Court will show the necessary vigilance in that respect .

23 . Thus, I consider that only a general answer, whether in the affirmative or in the negative, should be given to the question whether the provisions of the Staff Regulations of Officials of the ECSC which entered into force on 1 January 1962 were or were not directly applicable in all Member States .

24 . Having regard to the fact that they were not published, which suggests an answer in the negative, what considerations are there which, in spite of everything, would justify an answer in the affirmative?

25 . I do not think that any such considerations are to be found in the fact that one of the members of the committee which adopted the regulation laying down the Staff Regulations of Officials of the ECSC in 1962 was the President of the Council of the ECSC, the institution composed, according to Article 27 of the ECSC Treaty, of "representatives of the Member States ". That sort of "indirect de facto notice to the Member States", suggested to the Court by the Commission of the European Communities, does not seem to me to fulfil the minimum requirements of legal certainty for the Member States and, a fortiori, for Community citizens . In particular, I find it difficult to accept that a rule could be directly applicable in all Member States, that is to say, in regard to any person concerned in any Member State, without such persons being able to obtain knowledge both of the substance of the rule in question and of the fact that it is directly applicable .

26 . I therefore think that it is in following another avenue that the possibility must be explored of justifying the direct applicability of the provisions of the Staff Regulations of Officials of the ECSC which the Court is called upon to interpret in these proceedings . That avenue is to be found by having recourse to the substantive unity of the pension schemes for the three Communities between 1962 and 1968, which transcended the formal differences of the measures in which they were adopted .

27 . It can be seen that the title of the regulation of the two Councils and the Committee of Presidents of the ECSC of 10 July 1963, published in the Official Journal of the European Communities, ( 5 ) expressly refers to "the calculation of officials' pensions referred to in Article 83(3 ) of the Staff Regulations" without drawing the slightest distinction between the Staff Regulations of Officials of the ECSC, on the one hand, and those applying to officials of the other two Communities, on the other . That indication of an intention to avoid drawing a distinction between provisions contained in measures which are none the less different in terms of form is also found in the preamble to the regulation in question, which states that "it is for the Committee of Presidents of the European Coal and Steel Community and the Councils of the European Economic Community and the European Atomic Energy Community to adopt by common accord ... the detailed rules for the calculation of officials' pensions referred to in Article 83(3 ) of the Staff Regulations ". I consider that, by virtue of that information being published, there is an outward appearance of identity as between the provisions of the Staff Regulations on the subject of Community officials' pensions, regardless of the Community to which they were attached, and even an outward appearance of uniformity of the Staff Regulations applying to them . That outward appearance also corresponds to a substantive reality, since the provisions of the Staff Regulations of Officials of the ECSC on pension rights are in no way different from those of the staff regulations applying to officials of the other Communities . The fact that the provisions applicable to each group of officials were contained in documents which differed in form appears, in the publicly stated position adopted by the Councils and the Committee of Presidents, as no more than a mere circumstance which may, as it were, be "passed over ". It will be easy to understand that attitude if it is borne in mind that the 50 articles contained in Annex VIII to the Staff Regulations of Officials of the ECSC on the pension scheme are identical word for word to the first 50 articles of the Staff Regulations of Officials of the EEC and the EAEC, only Article 51, containing transitional provisions, being unique to the latter regulations .

28 . In my view, that analysis finds support in the Decision of 10 July 1963, adopted by the same bodies as the regulation of the same date, cited above, and published in the same Official Journal, ( 6 ) Article 1 of which deals with the "payment of benefits provided for in the pensions scheme for officials ". The apparent unity of the pension scheme for officials of the three Communities is even clearer here than in the regulation and, consequently, the apparent substantive identity of the provisions governing that scheme, regardless of the Community to which an official is attached, is also clearer .

29 . Since the Community legal measures cited above, all of which were duly published, reveal the existence of a single pension scheme for Community officials, they informed all concerned that the provisions of which they had previously become aware through the publication of the Regulation of 18 December 1961 laying down the Staff Regulations of Officials of the EEC and the EAEC apply without distinction to officials of all three Communities, including the ECSC . By giving notice that the provisions concerning pension rights applied without distinction to officials of all three Communities, the abovementioned measures also indicated, inter alia, that they were all directly applicable in all the Member States .

30 . Under those circumstances, I consider that the provision which the Court is called upon to interpret, namely the first subparagraph of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC adopted in 1962 must be regarded as having been directly applicable in all Member States, with effect from 1 January 1962, the date on which the two measures of 10 July 1963 entered into force and which is also the date that the Committee composed of the four Presidents of the ECSC adopted for the entry into force of the Staff Regulations of Officials of the ECSC .

31 . Consequently, that provision was directly applicable in Luxembourg at the time when Mr Retter applied to the Fund for payment of the surrender value of his pension rights in accordance with the provisions of the Luxembourg Law of 29 August 1951 . It is true that during the written procedure the Luxembourg Government argued that the Staff Regulations of Community Officials did not, in regard to the matter at hand, grant any right which could be relied upon as such by an individual and that the provisions of national legislation laying down the detailed rules for the transfer of pension rights were the only ones having the force of law . However, the Court' s judgment in Decker, cited above, has clearly established that the provision of the Staff Regulations of Officials of the Communities concerning the transfer of pension rights may certainly be relied upon as such by an individual, who may, in particular, rely on it as against a measure implementing a national law .

32 . However, it is true that the direct applicability of the provision of the Staff Regulations in question is not absolute inasmuch as an application for transfer cannot be dealt with in a Member State solely on the basis of that provision . The legislation of that Member State must determine the specific procedures for the transfer, under which it may, in particular, prescribe that only one of the two procedures to which that provision refers, namely transfer of the actuarial equivalent or transfer of the sums repaid, is to be used, as can be seen from the Court' s judgment of 17 December 1987 Commission v Luxembourg . ( 7 ) However, in regard to the question of ensuring that national law does not adversely affect the scope and effectiveness of a provision of the Staff Regulations and does not render impossible the exercise of a right conferred by them, the effects of direct applicability are produced in full .

33 . I will now turn, finally, to the substance of the question referred to the Court by the Luxembourg Cour de cassation . Neither the Luxembourg Government nor the Fund disputes that the provisions of the Law of 1951 do not lay down detailed rules permitting the application of the principle of transfer . The payment to an insured person of a surrender value equal only to his own contributions and representing the definitive extinction of his rights cannot constitute a means of transferring pension rights acquired under a national scheme to the Community scheme . However, Community officials were obliged to have recourse to the surrender value scheme provided for under the Law of 1951 because applications for payment of the surrender value had to be submitted within two years of the payment of the last contribution . Moreover, since payment of that amount involved the definitive extinction of the insured persons' rights as against the Luxembourg pension scheme, it prevented them from taking advantage, at the appropriate time, of the Luxembourg legislation which actually permitted the transfer of rights .

34 . Clearly, a surrender scheme such as that provided for by the Luxembourg Law of 1951 was not compatible with the right of transfer laid down in the Staff Regulations and that right precluded the application to a Community official of such a scheme . It is along those lines that I would propose that the Court reply to the question referred to it by the Luxembourg Cour de cassation .

35 . That court wondered whether it was possible to apply to the payment of the surrender value imposed on Mr Retter in 1964 Article 21(2 ) of the Luxembourg Law of 16 December 1963 prohibiting any refund of contributions "as long as the insured person is affiliated to one of the schemes covered by this law", and its question seeks to determine whether the effect of the provision of the Staff Regulations at issue is to assimilate the Community pension scheme to the "schemes covered" by the Law of 1963 . It seems to me that the provision of the Staff Regulations directly precluded the application of rules such as those laid down in the 1951 Law, without its being necessary to determine precisely the effects of Community law on a provision such as Article 21(2 ) of the Law of 1963 . Having regard to that observation, the form of reply which I will propose to the Court is based on that suggested by the Commission .

36 . Consequently, I propose that the Court should answer as follows the question referred to it :

"The first subparagraph of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC must be interpreted as precluding, from 1 January 1962, the application of national legislation whereby a Community official was obliged to surrender definitively the pension rights which he had acquired under a national scheme prior to being established as a Community official in return for the surrender value of those pension rights limited to his own contributions and thereby to waive the option of transferring those rights, an option which, in its principle, was established in that provision ."

(*) Original language : French .

( 1 ) Case 129/87 (( 1988 )) ECR .

( 2 ) JO 45, 14.6.1962, p . 1385 .

( 3 ) Annex 1 to the Fund' s observations .

( 4 ) OJ, English Special Edition 1968 ( I ), p . 30 .

( 5 ) JO 130, 24.8.1963, p . 2301 .

( 6 ) OJ, English Special Edition 1963-64, p . 50 .

( 7 ) Case 315/85 Commission v Luxembourg (( 1987 )) ECR 5391 .