2.

The Belgian Government's position is based essentially on the proposition that Article 11 (2) places no obligation on the Member States. In support of that view the defendant does not confine itself to advocating an interpretation of that provision which is different to that adopted by the Commission but puts forward three preliminary arguments according to which : (a) the Council could not have been entitled to exercise its power to lay down the Staff Regulations of Officials in such a manner as to impose on the Member States obligations concerning the transfer of pension rights; (b) whilst the Staff Regulations of Officials are in the form of a regulation, they are intended to govern solely the relations between the Communities and their staff; (c) it is in any event not permissible to impose obligations on the Member States indirectly and by implication. It seems to me that those arguments should be discussed first. That provision which empowered the Council to define the position of all Community officials is Article 24 of the Treaty merging the executives, which provides: “The Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the other institutions concerned, lay down the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of those Communities”. There is no doubt that that article confers upon the Council a wide discretion to determine the subject-matter of the relations between officials and the Community institutions in whose service they are employed. Such a power must clearly be exercised in the interests of the Community and within the confines of the objective pursued by Article 24; that requirement was certainly fulfilled, however, when the Council decided that it was appropriate to grant officials the option of making use, in the Community context, of pension rights which they had acquired as a result of previous employment in a Member State. The conferment of such a right is intended to facilitate movement from national employment, whether public or private, to the Community administration and therefore to ensure that the Communities have a good chance of being able to choose qualified staff who already possess suitable experience. The provision is therefore one which, in addition to benefiting individuals, serves primarily to satisfy one of the Communities' own interests by promoting the better organization and more efficient functioning of their administrations. In view of that, it was in my opinion perfectly permissible for the Council to impose on the Member States the obligation to adopt the measures necessary in order to enable the abovementioned scheme to be put into effect. These measures are not to be compared with those on the harmonization of national social security schemes — a subject which is certainly different and relates to different objectives. The purpose of the provisions in the present case is to establish a certain continuity for pension purposes between national and Community employment without prejudice to the differences existing between the social security schemes of the Member States. As far as the identity of the addressees of the Staff Regulations is concerned, it seems to me that the possibility can by no means be excluded that those regulations impose obligations or confer rights on subjects other than the Communities and officials. Even if it is correct that most of the provisions of the Staff Régulations are intended solely to govern the position of servants vis-à-vis the Community institutions, there is nothing to prevent a given provision from containing obligations which are also incumbent on Member States. As a matter of form, it would be sufficient to regard the regulation laying down the Staff Regulations of Officials as a measure having general application within the meaning of Article 189 of the EEC Treaty; even though the adoption of the Staff Regulations was specifically provided for by Article 24 of the Treaty merging the executives, there is no reason to think that that entailed a derogation from the principles of Article 189. On the contrary, it may be argued that precisely because the power provided for by Article 24 of the Merger Treaty was exercised by way of adopting a regulation, there can be not doubt that the Staff Regulations have general application. It depends therefore on the structure of each provision whether it governs solely relations between the Communities and officials or possibly also relations between Member States and the Communities. More specifically, Article 11 (2) of Annex VIII is not the only provision of the Staff Regulations whose implementation requires the cooperation of the Member States: examples which may be cited are Article 11 which places an obligation on the official not to seek or take instructions from any government and consequently by implication imposes on the governments of the Member States an obligation not to give instructions to any official of the Communities and Article 83 (1) which provides that the Member States are to guarantee jointly payment of benefits under the pension scheme. In any event, the achievement of the objectives laid down in the Staff Regulations of Officials is also covered by the general obligation placed on the Member States by Article 5 of the EEC Treaty, under which those States are bound to adopt “all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community”, and also to facilitate the achievement of the Community's tasks. In view of the breadth of the expression “resulting from action taken by the institutions” and the duty to facilitate the fulfilment of the Community's tasks, the objection that it is not permissible to impose obligations on the Member States indirectly or by implication also fails. Where it is certain that a provision of the Staff Regulations places an obligation on the Community (in this case, to allow the right conferred upon officials by Article 11 (2) of Annex VIII to be exercised) and cannot be put into effect without the cooperation of the Member States, the Member States are bound to adopt the necessary measures. That is the conclusion to which the reference to Article 5 of the EEC Treaty leads.