Opinion of Mr Advocate General ancini delivered on 20 September 1989. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Failure to implement a judgment - Transfer of officials' paension rights. - Case 383/85.



European Court reports 1989 Page 03069



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By an application of 28 November 1985, the Commission asked the Court to declare that the Kingdom of Belgium had not complied with the judgment of 20 October 1981 in Case 137/80 Commission v Belgium (( 1981 )) ECR 2393 . In that judgment, the Court held as follows :

"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 . As the Court is aware, these proceedings had already reached the stage of the oral procedure and the Advocate General had delivered his Opinion on 20 October 1987 . Following an application by the Kingdom of Belgium, which the Commission supported, the President adjourned the proceedings . After further adjournments sought by both parties and the departure of certain members of the Court, the President ordered the oral procedure to be reopened .

3 . Even now the Kingdom of Belgium has still not introduced into its legal order the concrete measures which would make it possible to implement the right to transfer pension rights . I note that by its inaction, Belgium has given itself ( so far ) a respite of nine years, in addition to the 12 years of unlawfulness which preceded it . Thus, the rights of an undetermined but surely significant number of officials have been infringed ( it is sufficient to recall to mind the number of applicants in Case 137/88 Scheemann v Commission, in which a declaration was sought that the Commission had failed to fulfil its duty to have regard to the applicants' interests in the light of Belgium' s failure to fulfil its obligations in this matter ).

4 . By persisting in that failure, 20 years after the introduction into the Staff Regulations of Article 11(2 ) and nearly nine years after the judgment of the Court finding that the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty, the Belgian Government has preferred to pursue, unilaterally, its own financial interests - as clearly set out in the first case ( 1 ) - to the detriment of the obligation to comply with Community law and contrary to Article 5 of the Treaty . I fully share in that regard the view of Mr Advocate General Capotorti to the effect that "the provision is therefore one which, in addition to benefiting individuals, serves primarily to satisfy one of the Communities' own interests" ( Opinion in the case cited above, p . 2412 ).

5 . In accordance with the Opinion of my predecessor, Mr Advocate General Mancini, delivered on 20 October 1987, I therefore propose that the Court should grant the Commission' s application and declare that by failing to comply with the judgment of the Court of Justice of 20 October 1981 in Case 137/80 the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the Treaty . The defendant should clearly be ordered to pay the costs .

(*) Original language : Italian .

( 1 ) See, in particular, the "facts and issues" part of the judgment of 20 October 1981 :

"The Belgian Government next claims that that solution would lead to discrimination entailing a privilege

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Thus, a Belgian official who resigns and enters the service of the EEC costs the Belgian State nearly three times more than if he enters the service of another employer, be it an international organization such as NATO, OECD, or Eurocontrol . Moreover, the discrimination manifests itself in the benefits which are subsequently granted to the persons concerned on the basis of those payments since in the case of an official who resigns and enters the service of the Communities the sums paid are converted into years of service qualifying the European official for a pension calculated on the basis of the final salary which he obtains in the service of the EEC, whereas in the case of an official who resigns and enters another organization the sums paid to the social security scheme will provide the servant with a pension related to the salaries on which his social security contributions are based, which will clearly be lower since they were earned at the start of his career ."