C-315/85

COMMISSION v LUXEMBOURG

O P I N I O N O F MR ADVOCATE GENERAL MANCINI delivered on 7 July 1987*

Mr President, grade on establishment, determine the Members of the Court, number of years of pensionable service with which he shall be credited under its own pension scheme in respect of the former period of service, on the basis of the amount 1. By application lodged at the Court of the actuarial equivalent or sums repaid as Registry on 22 October 1985, the aforesaid'. Commission of the European Communities requested the Court to declare that, by applying Article 11 (2) of Annex VIII to the Staff Regulations of Officials only in part, the Grand Duchy of Luxembourg has failed 2. I would recall that in Luxembourg there to fulfil its obligations under the EEC are two social security schemes which differ Treaty. substantially with regard to the conditions governing entitlement to a pension, the financing procedures and the authorities responsible for administering them: the As the Court is aware, that provision reads 'non-contributor/ scheme, which in as follows: 'An official who enters the practice is restricted to civil servants, and service of the Communities after leaving the the 'contributor/ scheme for employees in service of a government administration or of the private sector. In the light of that a national or international organization or situation and in order to enable the right of an undertaking shall have the right, on conferred by Article 11 (2) of Annex VIII to becoming established with [the] Community be exercised, the Luxembourg legislature to pay to it either: enacted two distinct provisions.

provides that 'where a person moves from a 3. France and the United Kingdom have Luxembourg contributory pension scheme intervened in the proceedings in support of to a pension scheme of an institution which the Grand Duchy of Luxembourg. All three provides for the buying-in of pension rights governments contend that Article 11 (2) acquired during periods of employment confers on Community officials the right to prior to his establishment, the contributions choose between maintaining their pension paid to the Luxembourg pension scheme rights under the provisions of national law shall be transferred upon request by the applicable to them and transferring those person concerned to thè pension scheme of rights to the Community scheme. However, the international institution, together with they consider that Article 11 (2) does not interest at 4% per annum as from 31 authorize Community officials to select the December of each year of affiliation'. method of transfer, which must be carried out in accordance with the criteria laid down by each Member State in connection with the pension scheme to which the official concerned was affiliated.

In substance, in the case of the second category of employees, the transfer of pension rights to the Community scheme must be carried out on the basis of the sums repaid alone. Instead, in the case of civil Let me say at once that I am not swayed by servants, it is the actuarial equivalent that is the applicant's interpretation. It is based on transferred. the premise that, from the point of view of the Staff Regulations, the transfer of the actuarial equivalent is the normal procedure, whilst the transfer of the sums repaid constitutes 'a safety net where there is a transition from one scheme to another' and is therefore of a residual nature.

to the Community scheme. At the hearing, Italy was applying the procedure involving however, the applicant stated that, where the transfer of the actuarial equivalent, national law makes provision for both of the whereas in the other five Member States the methods of transfer specified in Annex VIII, transfer of pension rights was being carried the person entitled to the pension may, if he out by a method which was similar or considers it more advantageous to do so, identical to the transfer of the sums repaid. opt for the second method. Clearly, that The Council took that situation into contention makes the Commission's account and referred to both methods of argument a good deal less forceful. Apart transfer, thereby securing the advantage of from that contradiction, however, the fact facilitating transfers between the adminis- remains that the argument to the effect that trative authorities concerned without the transfer of the actuarial equivalent is the requiring the Member States to amend their rule and the transfer of the sums repaid is systems. I would point out, moreover, that the exception is not substantiated either by this state of affairs was not affected by the the wording or by the objectives of Article successive enlargements of the Community 11 (2). following the entry into force of the Staff

decision). Accordingly, that provision more appropriate. That, moreover, was the required the Member States to adopt 'all view taken by the Court in a judgment appropriate measures, whether they be which it gave when these proceedings were general or particular. . . to enable the already in progress. It held that 'an analysis Community scheme to be coordinated with of the wording of that article clearly reveals the national schemes' (paragraphs 9 and 12 that its fundamental purpose is to ensure the of the decision, emphasis added). transition from a national insurance scheme to the Community scheme by one of the two procedures to which it refers, that is to say transfer of the actuarial equivalent or transfer of the sums repaid; it does not, however, require that both procedures Therefore it was not essential for the should be provided for', quite apart from various Member States to adopt a single whether or not they exist under national law

OPINION OF MR MANCINI —CASE 315/85

4. In the light of the aforesaid considerations, I suggest that the Court dismiss the action brought by the Commission of the European Communities against the Grand Duchy of Luxembourg and, under Article 69 (2) of the Rules of Procedure, order the applicant to pay the costs.