Opinion of Mr Advocate General Darmon delivered on 13 February 1990. - Michel Weiser v Caisse nationale des barreaux français. - Reference for a preliminary ruling: Tribunal d'instance de Paris - France. - Officials - Transfer of pension rights. - Case C-37/89.



European Court reports 1990 Page I-02395



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . By judgment of 26 January 1989, the tribunal d' instance de Paris ( cinquième arrondissement ) ( District Court for the Fifth Arrondissement of Paris ) referred a question to the Court for a preliminary ruling on the interpretation of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities ( hereinafter referred to as "Article 11(2 )") laid down in Regulation ( EEC, Euratom, ECSE ) No 259/68 of the Council of 29 February 1968 . ( 1 ) The provision deals with the possibility open to Community officials, on becoming established, to transfer to the Community pension scheme pension rights acquired in respect of their previous occupational activities .

2 . The proceedings in which the question referred to the Court arose are between Michel Weiser, a French official of the Court of Justice, and Caisse nationale des barreaux français ( National Pension Fund for the French Bars, hereinafter referred to as "the Fund ". Before his appointment on 1 July 1984 to a post of lawyer-linguist as a probationary official of the Court of Justice, Mr Weiser had practised since 5 December 1967 as an avocat belonging to the Paris Bar . As such, he had acquired pension rights . When established as a lawyer-linguist with effect from 1 April 1985, he applied to the Fund in September 1985 to have the pension rights he had acquired with it transferred to the Community pension scheme . The Fund' s refusal to do so, which was repeated after an internal administrative appeal, is the subject-matter of Mr Weiser' s action before the national courts and it is one of the grounds for that refusal which led the tribunal d' instance de Paris ( cinquième arrondissement ) to refer a question to the Court for a preliminary ruling .

3 . The Fund set out the reasons for its refusal in its reply to Mr Weiser' s internal administrative appeal, dated 3 October 1986, by stating that it agreed with the opinion of the competent department of the French Ministry of Social Affairs and National Solidarity, which it had consulted . According to that view, on the one hand, Article 11(2 ) is not, in the absence of an agreement between France and the Communities, directly applicable in France and, on the other, an avocat, being a self-employed person, does not come within the scope of the provision and does not, if established as a Community official, qualify for the transfer of his pension rights .

4 . Let us examine, first, the contents of Article 11(2 ) and in particular the first subparagraph thereof : "An official who enters the service of the Communities after leaving the service of a government administration or 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 ) theactuarial 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 ".

5 . Thus, as the national court rightly observed, the Fund and the Ministry of Social Affairs were incorrect to contend that Article 11(2 ) was not directly applicable . According to the very clear terms of the Court' s judgment of 20 October 1981 in Commission v Belgium, ( 2 ) to which the national court' s judgment refers and which deals specifically with Member States' obligations under Article 11(2 ) of Annex VIII to the Staff Regulations of Officials, which were laid down in a regulation possessing

"all the characteristics set out in the second paragraph of Article 189 of the EEC Treaty ... is binding in its entirety and is directly applicable in all Member States ". ( 3 )

6 . Admittedly, the scope of the direct applicability of Article 11(2 ) is rendered relative in so far as, in the absence of arrangements laid down by the Member States for the transfer of pension rights, Article 11(2 ) cannot be effective and effect cannot be given to applications from Community officials who have acquired pension rights in the Member States . It is undoubtedly true that the consequence of the direct applicability of the Staff Regulations is that they are

"binding on Member States in so far as their cooperation is necessary in order to give effect to those regulations" ( 4 )

and that

"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 ". ( 5 )

However, as the Court is aware, the adoption by the Member States of measures for the actual implementation of Article 11(2 ) has been subject to some vicissitudes and the majority of the Member States - eight out of 12, according to particulars given by the Commission at the hearing - are still at the stage of drawing up detailed implementing rules, 28 years after the adoption of the first provision providing for the transfer of pension rights . ( 6 ) That situation has led the Commission to initiate proceedings under Article 169 of the Treaty on several occasions .

7 . According to the information on the file, France has not yet laid down detailed rules for the implementation of Article 11(2 ) but an agreement on that subject between the competent national departments and those of the Commission is imminent . Thus, although an application to a French pension institution for the transfer of pension rights cannot simply be granted in present circumstances, it would appear that applications from persons entitled to transfer rights under Article 11(2 ) may be granted in the near future .

8 . It is precisely the question whether an official who before his establishment with the Communities practised as an avocat on a self-employed basis is entitled to make such a transfer which is raised in the second ground for the Fund' s rejection of Mr Weiser' s application and the question referred to the Court is concerned only with that point . Even if the national court could not, in the absence of detailed implementing rules, order that the transfer should be carried out, it is called upon in the proceedings before it to reach a determination as of now on the scope of Article 11(2 ) and, as a result, on the principle of the right of an official to transfer pension rights acquired as a self-employed person before he was established . The Court is not in the relatively minor area of the arrangements for transfer but in that already laid down in Article 11(2 ) itself, namely the principle of the right of transfer . According to the case-law of the Court, illustrated in particular by the preliminary ruling made in the judgment of 18 April 1989 in Retter v Caisse de pension des employés privés, ( 7 ) Article 11(2 ) precluded, from its entry into force and therefore even before any national implementation measure whatsoever was adopted, the application of national legislation which does not permit the transfer of pension rights and amounts to depriving officials of a right granted to them by the Staff Regulations .

9 . It is thus perfectly clear that the questions connected with the principle of the right of transfer and the scope of Article 11(2 ) are distinct from, and independent of, national implementation rules and that the national court is in a position to assess the lawfulness in regard to that provision of a decision taken by a body responsible for managing pension rights which calls in question the very principle of an individual' s right to transfer his pension rights .

10 . There is a certain convergence in the written observations submitted to the Court by the Fund, the Commission and the French Government in regard to the literal interpretation of Article 11(2 ) as to whether an official who, before his establishment, acquired pension rights as a self-employed avocat has a right of transfer . They agree that the definition laid down in Article 11(2 ) is clear in so far as it refers to officials who enter the service of the Communities after leaving "the service of a government administration or of a national or international organization or of an undertaking", which means, as the Commission puts it, "employment or employment under staff regulations ". ( 8 ) The Fund interprets those words as meaning that Article 11(2 ) does not cover officials who enter the service of the Communities after exercising an activity as self-employed persons and that that restriction is the result of a deliberate choice on the part of the Community legislature . For its part, the French Government states that the provisions in question "do not appear ... to cover previous occupational activities engaged in as a self-employed person ". ( 9 ) The Commission observes that the terms used are "hard to apply to activities as a self-employed person ". ( 10 ) However, at the hearing, its representative stated, after hearing the arguments of counsel for Mr Weiser, that the wording of the provision at issue was not entirely unequivocal and did not preclude a degree of flexibility in its interpretation .

11 . For his part, Mr Weiser, in his written observations, proposed an interpretation which departed from a strict literal analysis of Article 11(2 ) and took account of its object and purpose . However, at the hearing, his lawyer analysed the terms used in Article 11(2 ) and argued that the words "service", "of" and "national organization" are not so precise in their meaning as to exclude from the scope of that provision an official who has ceased to practise as an avocat in France .

12 . Let me observe at this initial stage that, regardless of what has been argued before the Court, the terms of Article 11(2 ) seem unequivocal . They in fact seem to be directed only to officials who were previously employees or officials . It would be very difficult to take the view that the words "service of ... an undertaking" are capable of referring to practising as a self-employed avocat . Similarly, it seems to me that the efforts which were made before the Court at the hearing to give credence to the idea that a French avocat, inasmuch as he is a member of the Bar, which is regarded as a "national organization", and in the "service" "of" "national organizations" called courts, is capable of falling within the scope of Article 11(2 ) were more commendable than they were convincing . That provision refers first to "the service of a government administration or a national or international organization or of an undertaking" in which the official was prior to entering the service of the Communities, then refers to "retirement pension rights acquired by him in the government administration, national or international organization or undertaking ". ( 11 ) There seems to be no doubt that the government administrations, organizations or undertakings referred to here are those in whose service the person who has become an official exercised his activities and, by implication, those which paid his salary . It is an employer-employee relationship which is envisaged in the words used in Article 11(2 ) and it would be manifestly wrong to consider that an avocat practising on a self-employed basis in the circumstances applying to the profession, for example, in France, is in the service of the Bar or the courts, or can be said to be attached to the Bar . As far as such an avocat is concerned, neither the Bar nor the courts are his employer within the meaning of the relevant provision of the Staff Regulations .

13 . I do not therefore think that recourse should be had to an artificial use of language to make the position of an official who formerly practised as a self-employed avocat fit the terms of Article 11(2 ). Let me add that an interpretation equating the Bar with a "national organization" within the meaning of that provision and arguing that an avocat is "in the service" of such a "national organization" in no way deals with the perfectly conceivable case of officials who, before they entered the service of the Community, acquired pension rights as self-employed persons in professions which are not organized in the same way as the Bar .

14 . Should Article 11(2 ) therefore be interpreted literally? As I have remarked, Mr Weiser, in his written observations, urged the Court to go beyond such an interpretation and determine the scope of the provision in the light of the objective to be achieved . He argued, in particular, that the basic purpose of that provision was to confer on Community officials a certain degree of equivalence in regard to their previous occupational experience and that, in the light of that purpose, there was no justification for applying it only to certain categories of officials, namely former national or international civil servants or former employees of an undertaking, to the exclusion of others who were previously self-employed, since they all acquired pension rights in the same circumstances . The plaintiff in the main proceedings therefore concludes that Article 11(2 ) is not exhaustive .

15 . The Court' s judgment in Commission v Belgium, cited above, contains important indications as to the objective which Article 11(2 ) was intended to achieve . The Court pointed out in particular that

"by establishing for the benefit of officials a system for the transfer of pension rights",

that provision

"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 )

The Court added that Article 11(2 ), 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 ... Community (( pension )) scheme ". ( 13 )

16 . If I may briefly dwell on the passages cited, it will be observed that, in the explanation given of the purpose of Article 11(2 ), the Court made no reference to a distinction between the previous occupations of officials depending on whether they were employees, in the broad sense of that term, or self-employed . Its purpose, the Court held, is to "facilitate movement from national employment, whether public or private", which does not seem to preclude an interpretation of the provision at issue which includes the professions practised in an independent capacity, such as the profession of avocat in France, in its scope . Is it not commonly said that a person has "gone into the private sector" when he leaves the civil service either to be employed by an undertaking or to take up an activity as a self-employed person? The last passage quoted from the Court' s judgment refers to the idea of ensuring "that Community officials may retain the rights which they have acquired in their own State" without drawing a distinction between the occupations on the basis of which the rights were acquired .

17 . However, I am somewhat reluctant to propose that the Court, on the ground that the terms used in Article 11(2 ) are too restrictive having regard to the objective which it seeks to achieve, should interpret them more broadly or decide that they are not exhaustive . I find it difficult to consider that a provision could be interpreted in a way which departs clearly from its wording, on the ground that an interpretation going beyond the clear terms of the provision would better serve the objective which it sought to achieve . Grounds of expediency do not seem to me to be sufficient to justify an interpretation which makes the law say what it did not intend to say . I would adopt with approval in that regard the observation of Mr Advocate General Mayras, cited by the Commission : 10

"Although it is true that, in order to obtain the meaning or scope of a Community enactment, it is appropriate if occasion should arise to consider the objective and spirit of its provisions in the light of the general arrangement of the legislation in which they are contained, it is not necessary to resort to this method of interpretation when one is concerned with a text which in itself is clear and the meaning of which cannot, bearing in mind the rules of grammar, semantics and syntax, give rise to any discussion ". ( 14 )

18 . Moreover, I should point out that none of the precedents cited in the pleadings provides examples of an interpretation as "ambitious" as that proposed by Mr Weiser . In particular, the judgment of 29 September 1976 in Brack v Insurance Officer, ( 15 ) in which the Court considered that a self-employed person could be regarded as a worker within the meaning of a provision of Regulation ( EEC ) No 1408/71, which was, at the material time, applicable to employed persons, was concerned with a situation where a person was insured under a social security scheme successively as an employed person and as a self-employed person and thus does not seem to me to be conclusive for the purpose of deciding the question which arises in this case . Furthermore, the argument put forward by the plaintiff in the main proceedings concerning the extension of the scope of Regulation No 1408/71 is a double-edged sword . The fact that that regulation, which originally applied to employed persons, today also applies to self-employed persons is not due to an interpretation by analogy but, as the Fund points out, to the intervention of the Community legislature in Council Regulation ( EEC ) No 1390/81 of 12 May 1981 . ( 16 )

19 . However, it must now be asked whether the interpretation of Article 11(2 ) in accordance with its clear and unequivocal meaning does not cast doubt on its validity . Mr Weiser and the Commission expressly call its validity into question . Moreover, it seems to me that the French Government at least alludes to this possibility . The question referred to the Court does not rule out consideration of the validity of Article 11(2 ) inasmuch as, for a person in Mr Weiser' s position, the fact of being "entitled to claim the benefit of the provisions of Article 11(2 )", ( 17 ) may depend on a superior rule which is also applicable in this case . Let me add that, as is illustrated by the Court' s judgment of 27 September 1988 in Lenoir v Caisse d' allocations familiales des Alpes-Maritimes, ( 18 ) it is for the Court to verify the validity of a legislative provision even though the question referred to it does not ask for this to be done, once the Court contemplates interpreting the provision in a way which may cause it to be rendered invalid .

20 . Mr Weiser considers that a restrictive interpretation would render Article 11(2 ) void inasmuch as that provision would "infringe the prohibition of discrimination by excluding from its scope - without any objective justification - a certain category of official ". ( 19 ) The Commission presents a similar, more detailed analysis, arguing that the scope of the provision as determined by a literal analysis of Article 11(2 ) "cannot be accepted, since its application would infringe the principle of equality among officials whose circumstances are similar, a fundamental rule of the organization of the Community civil service" 10 and considers that the principle laid down in the Court' s judgment of 31 May 1979 in Newth v Commission ( 20 ) should be followed, namely that "where there is a rule of the Staff Regulations, even if it is clear, which ... infringes the principle of equal treatment, a superior principle of law, the latter must prevail and the rule of the Staff Regulations must be set aside ". ( 21 )

21 . Finally, the French Government "notes that the provisions of the regulation at issue, as presently drafted and interpreted, do not guarantee equal treatment as between employed persons and self-employed persons who are insured under a retirement pension scheme ". ( 22 ) However, that conclusion leads it, not to argue expressly that the provision is invalid, but to state that it has no objection to self-employed persons being given the same opportunities as employed persons either by means of an amendment of the rules or through informal agreement . However, at the hearing, the French Government' s agent stated that a declaration that Article 11(2 ) was partly void was also a possibility .

22 . In the judgment in Newth, cited above, concerning the determination of the currency in which the allowance paid where an official is retired in the interest of the service under Article 50 of the Staff Regulations of Officials is to be paid, the Court considered that the general rule in that article, which provided for payment in the currency of the country to which the official was last employed, in the case of Mr Newth, constituted a "breach of the principle of equality among officials whose circumstances are similar", regarded as a "superior principle of law ". ( 23 ) More recently, and in a case concerned with the very question of the transfer of pension rights, the Court reaffirmed the importance of the principle at issue . In the judgment in Retter v Caisse de pension des employés privés, cited above, the Court considered that a situation in which the Staff Regulations of Officials of the ECSC were of a lesser consequence in law than the Staff Regulations of Officials of the EEC and the EAEC would constitute in regard to ECSC officials

"a breach of the principle of equality ... incompatible with the fundamental principles of Community law ". ( 24 )

23 . Whether Article 11(2 ), interpreted solely in the light of its clear meaning infringes the principle of equality among officials in comparable circumstances depends, precisely, on whether the circumstances of officials who worked as employed persons, in the broad sense of the term, before being established, and those of officials who were formerly self-employed, such as avocats in France, are or are not comparable . How is that comparability or lack of it to be assessed? In what terms is the comparison to be made?

24 . Obviously, there are manifold differences between being employed, in the broad sense of the term, and being self-employed . Are those differences relevant, however, to the situation that the Court is considering in this case? Do they introduce an absence of comparability which makes it possible to exclude from the scope of Article 11(2 ) officials who were formerly self-employed? I think that only differences related to the content of Article 11(2 ) itself are relevant . The purpose of that article, I would recall, is to permit Community officials when they are established to transfer pension rights they acquired under a national pension scheme or under the pension scheme of an international organization . It is in the light of that right of officials that it must be assessed whether or not there are differences between former employed persons and former self-employed avocats .

25 . Within those confines, the Commission analyses the difference in treatment essentially in the light of the purpose of Article 11(2 ), as the Court defined it in its judgment in Commission v Belgium, cited above . Since it is a system for the transfer of pension rights 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", ( 25 )

the Commission considers that in the light of that objective, both categories of official - former "employees" and former "self-employed persons" - are "placed in comparable positions and should therefore be treated in the same way" and that "one group should not be privileged with regard to social protection or favoured from the point of view of recruitment ... compared with the other ". ( 26 )

26 . Let me say here that I view the matter in the same way as the Commission . In regard to the objective set out above, I can see no difference between "former employees" and "former self-employed persons" which would justify their not being treated in the same way . None of the - existing - differences between a former status as an employed person, in the broad sense of that term, and a former status as a self-employed person appears to be material to that objective .

27 . Does an analysis of the different treatment under Article 11(2 ) in the light of the technical characteristics of the transfer of pension rights reveal a justification which, from the point of view of the objective to be achieved, is lacking? None of the arguments put to the Court allows such a conclusion to be drawn . Since Article 11(2 ) makes it possible for an official who has been established to transfer to the Community pension scheme rights under a pension scheme subject to national or international law and since both officials who formerly worked as employed persons and those who were formerly self-employed have acquired rights under a pension scheme subject to national or international law, I consider that it is not possible to provide for different treatment for them on the basis of technical differences in regard to the pension rights acquired by one group or the other . In the absence of such differences, pension rights acquired by a self-employed avocat who has become a Community official are, a priori, capable of being transferred to the Community pension scheme under the same conditions as those of an employed person who has been established as a Community official . There is therefore, in my view, nothing to justify refusing to permit one group to transfer pension rights while permitting the other to do so .

28 . As I have indicated, no technical difference was alleged to exist . Moreover, the French Government does not seem to think that there is any decisive difference because it suggests that the scope of Article 11(2 ) should be extended and states that even in the absence of an amendment of the rules, an agreement between the pension funds involved would be sufficient to make the transfer possible . For its part, the Fund referred essentially at the hearing to the difficulties caused by the need to draw up lists of the many pension schemes which would be involved if self-employed persons were to be allowed to transfer their rights rather than to technical obstacles to the transfers themselves . In fact, I think the Fund has placed itself, rather imprecisely, in the area of the implementation, rather than the principle, of the right of transfer, which is the only point at issue here .

29 . However, I should point out that the French scheme for avocats who become members of the judiciary, which permits them, on certain conditions, to have account taken for the purposes of their civil service pension of the periods during which they were practising at the Bar, provides no clues as to whether there are or are not any technical obstacles to a transfer of the kind provided for in Article 11(2 ). Under that scheme, the pension fund for civil servants does not recover either the actuarial equivalent or the amounts actually paid . In contrast, there is a right of subrogation on the part of the State in respect of any benefits to which the former lawyers might be entitled from the pension fund for avocats on the basis of the periods taken into account for the purposes of their civil service pension . ( 27 ) In other words, instead of paying the former avocat who has become a judge, at the appropriate time, the pension to which he is entitled, the Fund pays the same amount to the Treasury . It is thus a different system from that provided for in Article 11(2 ), and consequently cannot be used for the purposes of comparison .

30 . In so far as no technical difficulty has been raised in connection with a pension scheme such as that for French avocats for transferring pension rights acquired under such a scheme in one of the forms mentioned in Article 11(2 ) - actuarial equivalent or amounts paid - I do not think there is any justification for preventing the transfer of such rights .

31 . At this stage of the discussion, I am therefore forced to conclude that, when interpreted in accordance with the clear meaning of its terms, Article 11(2 ) creates an unjustified difference in treatment between officials who, having regard both to the purpose of that provision and the techniques involved, are in comparable positions as regards pension rights . For that reason, it infringes the principle of equality, a superior rule of law .

32 . I think that I should point out here, in order to avoid any confusion, that the principle at issue is not that of equality between employed and self-employed persons, of which there is no trace as a general rule of Community law, whether in black-letter law or in the law reports . Since the provision to be interpreted is intended to provide "an official who enters the service of the Communities ... the right, on becoming established with that Community, to pay to it either the actuarial equivalent ... or the sums repaid to him from the pension fund", the question is whether, by distinguishing between officials who enter the service of the Communities after working as employed persons in the broad sense of that term and those who enter the service of the Communities after being self-employed, that provision does not infringe the well-known principle cited above of equality of officials in comparable circumstances .

33 . I would like to put particular emphasis on the latter point . The Court is in no sense confronted with a provision which provides for different treatment for employed persons on the one hand and self-employed persons on the other . The provision which the Court is considering applies in favour of certain officials of the Communities because they formerly worked as employed persons and excludes other officials of the Communities because they were formerly self-employed . It is thus easy to understand why Regulation No 1408/71 is not relevant as a precedent either, as we have seen, in favour of a broad interpretation of Article 11(2 ), ( 28 ) or in favour of setting aside the principle of equality . The fact that the provisions of that regulation, applicable to employed persons in regard to social security, were not equally applicable to self-employed persons throws no light on the scope of the principle of equality in this case . What the Court must assess here is the effects of a provision of the Staff Regulations, not in regard to employed persons, on the one hand, and self-employed persons, on the other, but to persons now officials whose former different occupational background is the cause of a present difference in treatment .

34 . I am firmly convinced that the principle to which, as I have pointed out, the Court referred in particular in the judgments in Newth and Retter, is fully applicable in this case .

35 . What consequences must be drawn in answering the question referred to the Court from the finding that the principle of equality has been infringed? The Commission states that there are two possible avenues . The first consists of interpreting Article 11(2 ) broadly so as to reconcile it with the principle of equal treatment . That could be called an interpretation in accordance with that principle . The second possibility is to declare Article 11(2 ) invalid on the ground that it does not permit an official who, before entering the service of the Communities, acquired pension rights as a self-employed person to transfer those rights to the Community scheme . In that case, as in the case of the Court' s judgment in Pinna v Caisse d' allocations familiales de la Savoie ( No 2 ), ( 29 ) it must be considered that the principle of equality precludes national authorities from applying an exclusion which is contrary to Community law and that it is incumbent on those authorities to

"draw the inferences in their legal system from a declaration of invalidity made in the context of Article 177 of the Treaty ". ( 30 )

36 . I also consider that a choice must be made between those two alternatives . The Commission expresses its preference for the conciliatory route, by means of a broad interpretation which would be in accordance with Community law . To accept that solution would amount to saying that a broad interpretation going beyond the clear terms of a provision is not justified on the ground that it is appropriate but is justified on grounds of legality . I must say that I find that solution difficult to accept, since the terms of Article 11(2 ) seem to me to be quite simply incapable of being applied to the position of an official who was a self-employed avocat before entering the service of the Community . I therefore find it difficult, even in the name of the superior principle of equality, to do what in reality amounts to adding to the terms of that provision .

37 . I therefore think that the Court should have recourse to the solution which consists of declaring Article 11(2 ) of Annex VIII to the Staff Regulations invalid in so far as it does not permit an official who has acquired pension rights on the basis of a previous occupational activity as a self-employed person to transfer those rights to the Community pension scheme . Admittedly, it is natural to wish to avoid the "dramatization" which is generally involved in a declaration that a provision is invalid . However, in this case, such a finding seems to me to be closer to the reality of the situation and, what is more, the validity of the provision in question is in fact at issue only as regards what it excludes, not what it already permits .

38 . Let me say with regard to a point raised at the hearing that no really precise and detailed argument was put forward in support of the proposition that the Court should possibly place a time-limit on the effects of a broad interpretation or a declaration that the provision is invalid . Having regard to the exceptional nature which the Court has attributed in its previous decisions to such a limitation of the scope of a judgment in a reference for a preliminary ruling, I consider that such a limitation is not justified in this case .

39 . Let me close the discussion by adding that an answer which would enable officials who acquired pension rights as self-employed persons not to be disqualified from exercising the entitlement to transfer those rights would ensure that persons who were engaged in similar occupations in different Member States would not be subject to different treatment, which would be all the more unjustified for that reason . Let us bear in mind that although the profession of avocat may not be exercised in France by an employed person, that is permitted in other Member States . I think the Court should try to avoid a situation in which, in regard to the transfer of pension rights, what former avocats from one Member State are permitted to do is forbidden to those from other Member States .

40 . I therefore propose that the Court should rule as follows :

"An official of the European Communities who, before entering the service thereof, acquired pension rights under a national pension scheme on the basis that he had been a self-employed avocat cannot be denied the right to transfer those rights under Article 11(2 ) to Annex VIII to the Staff Regulations of Officials of the European Communities, since that provision is invalid in so far as it does not permit the transfer of rights acquired under a pension scheme for a self-employed occupation ."

(*) Original language : French .

( 1 ) 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 ( I ), p . 30 ).

( 2 ) Case 137/80 (( 1981 )) ECR 2393 .

( 3 ) Paragraph 7 .

( 4 ) Paragraph 8 .

( 5 ) Paragraph 9 .

( 6 ) Regulations Nos 31 ( EEC ) and 11 ( EAEC ) of the Council of 18 December 1961 ( JO L 45, p . 1385 ), which entered into force on 1 January 1962, and the regulation laying down the Staff Regulations of Officials of the ECSC, which entered into force on 1 January 1962 ( not published in the Official Journal ).

( 7 ) Case 130/87 (( 1989 )) ECR 865 .

( 8 ) Commission' s observations, p . 3 .

( 9 ) French Government' s observations, p . 4 .

( 10 ) Commission' s observations, p . 4 .

( 11 ) Emphasis added .

( 12 ) Case 137/80, paragraph 11 .

( 13 ) Paragraph 12 .

( 14 ) Opinion in Case 233/72 Gunnella v Commission (( 1973 )) ECR 475, at p . 486 .

( 15 ) Case 17/76 (( 1976 )) ECR 1429 .

( 16 ) Extending to self-employed persons and members of their families Regulation ( EEC ) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community ( OJ L 143, 29.5.1981, p . 1 ).

( 17 ) Extract from the question referred to the Court .

( 18 ) Case 313/86 (( 1988 )) ECR 5391, in particular paragraph 12 .

( 19 ) Mr Weiser' s observations, p . 10 .

( 20 ) Case 156/78 (( 1979 )) ECR 1941 .

( 21 ) Commission' s observations, pp . 4 and 5 .

( 22 ) French Government' s observations, p . 5 .

( 23 ) Case 156/78, paragraph 13 .

( 24 ) Case 130/87, cited above, paragraph 17 .

( 25 ) Case 137/80, cited above, paragraph 11 .

( 26 ) Commission' s observations, pp . 6 and 7 .

( 27 ) See Decree No 83.893 of 5 October 1983, in particular, the third paragraph of Article 3 ( JORF, 8.10.1983, p . 3021 ).

( 28 ) See my comments in paragraph 18 .

( 29 ) Case 359/87 (( 1989 )) ECR 585 .

( 30 ) Paragraph 13 .