WRITTEN QUESTION E-2263/01

by Bartho Pronk (PPE-DE) to the Commission

(31 July 2001)

Subject: Non-compliance with the case law of the Court of Justice by the Belgian State Pensions Service

The overriding principle of social security law is that the Member States are entitled to maintain their own social security schemes. In practice, this can have unfortunate outcomes, which have to be corrected by the European Court of Justice and other courts. On 26 September 2000 the Court of Justice gave its decision in a case involving the Belgian State Pensions Service and R Engelbrecht.

At issue in this case was Article 3(8) of the Belgian law of 20 July 1990. This law states that the pension of a married couple is reduced where the other partner is in receipt of a pension (i.e. the partner other than that entitled to the pension concerned). In this particular case, Engelbrecht's partner was in receipt of a Dutch AOW allowance, which, under the AOW system, entailed no change in the couple's income. The Court of Justice ruled that this provision constituted an obstacle to the free movement of workers and was therefore inadmissible.

1. Is the Commission aware of the fact that Belgium still applies Article 3(8) of the Belgian law of 20 July 1990?

2. Is the Commission prepared to draw the attention of the Belgian government to the fact that this legislation may no longer be applied in cases similar to the Engelbrecht case?

3. Does the Commission intend to apply Article 228 of the EC Treaty to Belgium?

4. Does the Belgian State Pensions Service, as a party in the Engelbrecht judgment, not have a responsibility of its own to apply the judgment in this case to other interested parties?

5. Does the Commission consider that the Belgian government is liable to pay compensation, now that a body under its responsibility is incorrectly applying the case law of the Court, causing prejudice to individuals?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(4 September 2001)

The Commission's attention has recently been drawn to complaints concerning the failure by the Belgian authorities to apply the case law of the Court of Justice laid down in the judgment in the Engelbrecht case, C-262/97(1), to which the Honourable Member refers.

On 18 July 2001, the Commission therefore contacted the Belgian authorities to ask what measures had been taken to comply with the case law in cases similar to that of Mr Engelbrecht. The Commission pointed out that the nature of their reply or failure to reply within two months might induce the Commission to initiate, where appropriate, the infringement procedure referred to in Article 226 (ex Article 169) of the EC Treaty.

The Commission would point out to the Honourable Member that the procedure referred to in Article 228 (ex Article 171) of the EC Treaty implies that the Court has already previously condemned a Member State for infringement under the procedure referred to in Article 226 of the EC Treaty, after having established that the latter had failed to meet its obligations. That procedure therefore cannot be initiated for failure to implement a judgment issued following a request for a preliminary ruling, as in the case in question.

Finally, any obligation to pay compensation/interest implies that a flagrant violation of Community law has been established(2), the amount being determined by national courts under the national appeals procedure.

(1) OJ C 295, 27.9.1997.

(2) See the Court's judgment of 28 June 2001, Gervais Larsy v. Institut national d'assurances sociales pour travailleurs indépendants (INASTI), Case C-118/00.