11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS DOES NOT PRESUPPOSE THAT NATIONAL PENSION SCHEMES SHOULD BE CONSISTENT WITH ONE ANOTHER SO AS TO ENABLE THE ACTUARIAL EQUIVALENT TO BE TRANSFERRED IN ALL CASES . THE COMMUNITY LEGISLATURE DID NOT INTEND TO HARMONIZE NATIONAL PROVISIONS IN THE FIELD OF PUBLIC AND PRIVATE PENSIONS WHICH, AS THESE PROCEEDINGS HAVE CLEARLY SHOWN, ARE CHARACTERIZED BY WIDELY DIFFERING FEATURES AND A HIGH DEGREE OF COMPLEXITY .
22 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT, IN ORDER TO DISCHARGE THAT OBLIGATION, THE MEMBER STATES ARE NOT REQUIRED TO GRANT OFFICIALS THE OPTION OF CHOOSING BETWEEN TRANSFER OF THE ACTUARIAL EQUIVALENT AND TRANSFER OF THE SUMS REPAID .
23 AS FOR THE COMMISSION' S ARGUMENT THAT THAT INTERPRETATION WOULD LEAD TO UNEQUAL TREATMENT OF COMMUNITY OFFICIALS WHO WERE AFFILIATED TO DIFFERENT PENSION SCHEMES, IT MUST BE POINTED OUT THAT THE EXISTENCE OF CERTAIN DIFFERENCES BETWEEN PENSIONS THAT ARE TRANSFERRED IS NOT THE RESULT OF COMMUNITY LAW BUT STEMS EXCLUSIVELY FROM DIVERGENCES BETWEEN THE NATIONAL SCHEMES WHICH CREATED THE RIGHTS IN QUESTION . THE COMMISSION' S ARGUMENT CANNOT THEREFORE BE UPHELD .
24 AS FOR THE COMMISSION' S SECOND ARGUMENT, TO THE EFFECT THAT THE LUXEMBOURG LEGISLATION PLACES AT A DISADVANTAGE INSURED PERSONS AFFILIATED TO A CONTRIBUTORY SCHEME WHO ENTER THE COMMUNITY ADMINISTRATION, IT MUST BE STATED THAT, IN CASES WHERE THE NATIONAL PROVISIONS PROVIDE FOR THE MECHANISM OF THE ACTUARIAL EQUIVALENT FOR THE PURPOSE OF TRANSFERRING PENSION RIGHTS TO ANOTHER NATIONAL SCHEME, IT IS APPROPRIATE TO PROVIDE FOR THE SAME POSSIBILITY WITH REGARD TO THE TRANSFER OF THE RIGHTS OF COMMUNITY OFFICIALS . DIFFERENT TREATMENT WOULD HAVE A DETERRENT EFFECT ON THE RECRUITMENT BY THE COMMUNITIES OF NATIONALS OF THE MEMBER STATES CONCERNED AND WOULD BE CONTRARY TO THE AIM OF ARTICLE 11 ( 2 ) OF ANNEX VIII TO THE STAFF REGULATIONS .
25 IN THAT REGARD, HOWEVER, IT MUST BE STATED THAT THE LUXEMBOURG LEGISLATION DOES NOT IN ANY CIRCUMSTANCES GIVE PERSONS AFFILIATED TO A CONTRIBUTORY SCHEME THE POSSIBILITY OF TRANSFERRING THE ACTUARIAL EQUIVALENT, AS DEFINED BY THE COURT IN ITS JUDGMENT OF 18 MARCH 1982 IN CASE 212/81 CAISSE DE PENSION DES EMPLOYES PRIVES V BODSON (( 1982 )) ECR 1019, TO ANOTHER LUXEMBOURG SCHEME . IN SUCH A SITUATION, THE FACT THAT THE REPAYMENT OF CONTRIBUTIONS, AS PROVIDED FOR BY THE NATIONAL PROVISIONS, TAKES NO ACCOUNT OF THE CONTRIBUTIONS PAID BY THE STATE IS OF NO ACCOUNT . THE COMMISSION' S SECOND ARGUMENT CANNOT THEREFORE BE UPHELD .
26 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE ACTION BROUGHT BY THE COMMISSION AGAINST THE GRAND DUCHY OF LUXEMBOURG FOR FAILURE TO FULFIL ITS OBLIGATIONS MUST BE DISMISSED .
Decision on costs
COSTS
27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE COMMISSION HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENERS