C-64/85
ECLI:EU:C:1988:141
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WATGEN v CAISSE DE PENSION DES EMPLOYÉS PRIVÉS
O P I N I O N OF ADVOCATE GENERAL MANCINI delivered on 9 March 1988 *
Mr President, European Parliament, asked the Members of the Court, Luxembourg Caisse de pension des employés privés to transfer to the Community pension scheme the actuarial equivalent of the rights which he had 1. Pursuant to Article 11 (2) of Annex VIII acquired up to that time. He received no to the Staff Regulations, a person who reply for four years, since the Caisse de 'enters the service of the Communities after pension had decided to await the outcome leaving the service of a government adminis- of a dispute between it and another tration or of a national or international Luxembourg official of the European organization or of an undertaking shall Parliament regarding the same matter (see have the right on becoming established with in that connection the preliminary ruling of that Community to pay to it either: this Court of 18 March 1982 in Case 212/81 Caisse de pensions des employés privés v Bodson [1982] ECR 1019, which was the actuarial equivalent of retirement followed by the judgment of the pension rights acquired by him in the Luxembourg Cour de cassation of 28 government administration, national or October 1982); when a decision was finally international organization or undertaking; given, Mr Watgen was dissatisfied with it. or
the sums repaid to him from the pension The Caisse de pension did in fact grant him fund of the government administration, the transfer; however, it calculated the organization or undertaking at the date of amount on the basis of the sums repayable his leaving its service'. from the pension scheme, as — it contended — it was required to do by Article 18 of the Law of 16 December 1963. That provision, in the amended text of 14 In any such case, the provision continues, March 1979, states that 'where a person 'the institution in which the official serves withdraws from a Luxembourg contributory shall, taking into account his grade on pension scheme and becomes affiliated to a establishment, determine the number of pension scheme of an international organ- years of pensionable service with which he ization which makes provision for the shall be credited under its own pension repayment of pension rights acquired during scheme in respect of the former period of periods of employment prior to his estab- service, on the basis of the amount of the lishment, the contributions paid to the actuarial equivalent or sums repaid as Luxembourg scheme shall be transferred at aforesaid'. the request of the person concerned to the pension scheme of the international organ- ization, together with compound interest at 2. In 1980 Mr Fernand Watgen, a the rate of 4 % per annum as from 31 Luxembourg national employed by the December of each year of affiliation'.
* Translated from the Italian.
OPINION OF MR MANCINI — CASE 64/85
Mr Watgen immediately challenged the and consideration of their merits would be Caisse's decision before the Conseil arbitral otiose. The central issue raised in the two des assurances sociales and then appealed to questions — whether Article 11 confers the Conseil supérieur. The latter, 'in view of upon EEC officials a genuine right of the disagreement between the parties, which election between the two types of transfer is the result of a considerable difference for which it provides — was recently dealt between the principles accepted in with by the Court in its judgment of 17 Community law, on the one hand, and in December 1987 in Case 315/85 (Commission Luxembourg law, on the other', asked the v Grand Duchy of Luxembourg [1987] Court under the third paragraph of Article ECR 5391), in which I was the Advocate 177 of the EEC Treaty: General. In its application, the Commission alleged that the Grand Duchy had failed to fulfil its obligations under Article 11 in so far as its social security legislation — and in particular Article 18 of the Law of 16 (a) whether the rules laid down by Article December 1963 to which I referred 18 (3) of the Law of 16 December 1963 earlier — did not grant nationals who leave were compatible with the right of private employment and become Com- election provided for Community munity officials the right to opt for the officials by Article 11 (2) of Annex VIII transfer of the actuarial equivalent of to the Staff Regulations of the pension rights. European Communities; and
(b) whether that right of election might be exercised even if the alternative chosen With respect to that allegation the Court by the official either was not provided stated in the first place that neither the text for by the national law to which the nor the purpose of the Community national social security institution was provision made it possible to infer 'une subject or was incompatible with the priorité en faveur d'une des deux méthodes system which that institution had to de calcul. En effet, . . . l'objectif de l'article apply. 11, paragraphe 2, . . . e s t de garantir le passage d'un système d'assurance nationale au système communautaire sous l'une des deux formes qu'il mentionne'. As a resuit 'les États m e m b r e s . . . ne sont pas obligés Written observations were submitted by the d'accorder aux fonctionnaires la faculté de parties to the main proceedings, the choisir entre le transfert de l'équivalent Commission of the European Communities, actuariel et du forfait de rachat' (paragraphs the United Kingdom and the Luxembourg 20 and 22, emphasis added). and French Governments. Only the latter failed to present its observations at the hearing.
As regards the Luxembourg legislation, the 3. Let me say right away that in this case an Court held (even though no proof of that exposition of the arguments of the parties fact had been furnished by the defendant
WATGEN v CAISSE DE PENSION DES EMPLOYÉS PRIVES
government) that it 'ne prévoit, en aucun que le forfait de rachat tel que prévu par les cas, la possibilité pour les personnes affiliées dispositions nationales ne tient pas compte à un régime contributif de transférer l'équi- des contributions versées part l'Etat est sans valent actuariel... vers un autre régime pertinence' as regards the provision of the luxembourgeois. Dans ce contexte, le fait Staff Regulations at issue (paragraph 25).
4. In the light of those statements I suggest that the Court should give the following answer to the questions submitted by order of 1 March 1985 by the Conseil supérieur des assurances sociales in the proceedings by Fernand "Watgen against the Caisse de pension des employés privés, Luxembourg:
'Article 11 (2) of Annex VIII to the Staff Regulations of Officials of the European Communities is intended to safeguard the possibility of changing from a national social security system to the Community system in accordance with either of the two procedures for which it provides, namely payment of the actuarial equivalent of retirement pension rights or of the sums repaid from the pension fund concerned. That provision must therefore be interpreted as meaning that the Member States are not under any obligation to grant their nationals who enter the service of the Communities the right to choose between the two alternatives, regardless of the fact that such a right may be provided for by national law.'