Opinion of Mr Advocate General Léger delivered on 29 May 1997. - Commission of the European Communities v Kingdom of Spain. - Failure of a Member State to fulfil its obligations - Article 5 of the EC Treaty and Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities - Failure to take the measures necessary to enable pension entitlements of officials to be transferred to the Community scheme. - Case C-52/96.



European Court reports 1997 Page I-04637



Opinion of the Advocate-General

1 In the present proceedings, brought under Article 169 of the EC Treaty, the Commission claims that, by failing to adopt the national measures necessary to ensure that officials of the European Communities are able to transfer their retirement pension rights to the Community pension scheme, the Kingdom of Spain has failed to fulfil its obligations under Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities (1) and Article 5 of the EC Treaty. It also asks that the Spanish Government be ordered to pay the costs.

2 Article 11(2) of Annex VIII to the Staff Regulations (2) provides:

`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

- pursuing an activity in an employed or self-employed capacity;

shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat-rate redemption value of retirement pension rights acquired by virtue of such service or activities.

In such case the institution in which the official serves shall, taking into account his grade on establishment, determine the number of years of pensionable service with which he 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 Staff Regulations `[are] binding in [their] entirety and [are] directly applicable in all Member States.' (3) They therefore entered into force, in Spain, with effect from 1 January 1986. (4) The technical nature of the Staff Regulations means that, in order to give effect to the obligation set out in Article 11(2) of Annex VIII to the Staff Regulations, Article 5 of the Treaty requires Member States to adopt particular measures. (5)

4 The Kingdom of Spain took certain steps to implement the provision at issue in its internal legal order. The amended version of the Law on pensioners and retired employees of the State was thus adopted and published on 27 May 1987. (6)

5 Acknowledging, however, that Law was not sufficient to ensure the operation of the scheme in question, the Spanish Government has since 1989, submitted a number of draft Royal Decrees to the Commission setting out detailed measures in that respect.

6 The Commission noted that those measures were still only in draft form and, on 27 October 1992, sent a letter of formal notice to the Kingdom of Spain under Article 169 of the Treaty.

7 Having received no official response to that letter, the Commission issued a reasoned opinion on 13 December 1993 concerning the lack of national measures necessary to ensure the implementation of Article 11(2) of Annex VIII to the Staff Regulations.

8 Despite numerous exchanges of views and contacts with the Commission concerning the amendments necessary to ensure that national legislation was in conformity with Community law, the Spanish authorities did not officially respond to the reasoned opinion.

9 On 21 February 1996, noting that the royal decree [implementing] Article 11(2) of Annex VIII to the Staff Regulations had not been adopted, the Commission brought these proceedings before this Court.

10 The Kingdom of Spain considers that, in view of the complexity of the matter and the practical problems arising, the Spanish authorities have remained in constant contact with the Commission, taking all relevant steps in order to resolve the problems raised as soon as possible and thus discharge the obligation set out in Article 11(2) of Annex VIII to the Staff Regulations. However, [in spite of that], it accepts that it failed to take appropriate measures, whether general or particular, under Article 5 of the Treaty, to implement the provision at issue with effect from 1 January 1986. (7)

11 It should therefore be held that the Spanish Government failed to fulfil its obligations under Article 11(2) of Annex VIII to the Staff Regulations and Article 5 of the Treaty.

12 Moreover, this Court has consistently held that 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. (8)

13 The Commission's application should therefore be granted.

Conclusion

14 Consequently I propose that the Court:

(1) declare that, by failing to adopt the necessary laws, regulations and administrative provisions necessary to conform to Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities, the Kingdom of Spain failed to fulfil its obligations under that article, and Article 5 of the EC Treaty;

(2) order the Kingdom of Spain to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.

(1) - Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of officials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (1), p. 30), as amended by Council Regulation (EEC, Euratom, ECSC) No 571/92 of 2 March 1992 modifying the Staff Regulations of officials of the European Communities (OJ 1992 L 62, p. 1, hereinafter `the Staff Regulations').

(2) - Or, alternatively, `the provision at issue'.

(3) - See, in particular, the judgment in Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 7.

(4) - Following the accession of the Kingdom of Spain to the European Communities.

(5) - Judgment in Commission v Belgium, paragraph 9.

(6) - Page 3 of the [French] translation of the application.

(7) - Defence.

(8) - Judgment in Commission v Belgium, paragraph 17.