C-383/85

COMMISSION v BELGIUM

OPINION OF MR ADVOCATE GENERAL MANCINI * delivered on 20 October 1987

Mr President, the Communities it was necessary to lay Members of the Court, down specific rules which would inter alia have to take account of the different pension schemes existing in Belgium. To that end, in June 1985 the Belgian 1. On 20 October 1981 the Court gave Government submitted to Parliament a draft judgment in the action brought in Case law, the text of which was submitted to the 137/80 by the Commission of the European Commission for its comments. Communities against the Kingdom of Belgium. It held that 'by refusing to adopt the measures necessary for the transfer to the Community pension scheme of sums due In the mean time, however, a Luxembourg to be repaid in respect of or the actuarial court had requested the Court of Justice to equivalent of retirement pension rights determine, by way of a preliminary ruling, acquired under the Belgian pension scheme, whether Article 11 of Annex VIII to the as provided for by Article 11(2) of Annex Staff Regulations conferred upon 'European VIII to the Staff Regulations' Belgium had officials the right to choose freely and failed to fulfil its obligations under the EEC according to their own interests between the Treaty (Commission v Belgium [1981] ECR two methods of transfer of rights under 2393, paragraph 20). national schemes, even if the alternative chosen by the official either is not provided for by the national law to which the national social security institution is subject or is incompatible with the system by which In its application of 28 November 1985, the the Luxembourg schemes are financed' Commission seeks a declaration from the (Case 64/85 Watgen v Caisse de pension des Court that Belgium has failed to comply employés privés [1988] ECR 2435). In those with that judgment, thereby failing to fulfil circumstances, the defendant contends, the its obligations under Article 171 of the EEC Belgian Parliament decided to defer the Treaty. adoption of the draft law submitted to it pending the Court's final judgment in that case.

regulation' (most recently in its judgment of 1981, the Court held that Article 11 20 March 1986 in Case 72/85 Commission v 'seeks... to ensure that Community Netherlands [1986] ECR 1219, at paragraph officials may retain the rights which they 19). It follows that interpretative doubts have acquired in their own State ... and may not be pleaded either. In fact, as such also to ensure that account may be taken of doubts are a subjective factor, they those rights by the pension scheme to which constitute even less of an obstacle to the the persons concerned are affiliated at the implementation of the provision in question end of their careers, in this case the than the factors listed by the Court. Community scheme ... For those reasons [the provision in question] is intended to Nor can a different conclusion be drawn confer upon officials a right... the exercise from the fact that the point in of [which] would be jeopardized if, as the doubt — which amongst other things relates Belgian Government maintains, the Member to national legislation which is quite States were to retain the right to refrain different from Belgian legislation — has from adopting the measures necessary in been referred to the Court in proceedings order to give effect to the provision'. under Article 177 of the EEC Treaty. Finally, the Court came to the conclusion Clearly, the fact that such proceedings are that the Belgian State is 'bound to select and in progress cannot affect a decided case put into effect specific measures which will either by weakening its authority or by make possible the exercise of the right suspending its validity. In other words, to granted to officials to transfer rights describe the ruling to be given by the Court acquired in national employment of Justice in response to the question submitted by the Luxembourg court as 'final', and thereby to downgrade the Faced with that unequivocal statement, judgment which the Court has already given there was only one course of action in relation to Belgium to 'provisional', is available to the Kingdom of Belgium: it contrary to a fundamental principle of any ought promptly to have taken measures of legal system. the kind indicated by the Court. Instead, it took no such measures, with the result that Finally, I might add that in this case there no Community official of Belgian was no foundation for any puzzlement nationality has yet been able to take concerning the scope of the contested advantage of the right conferred upon him provision. In its judgment of 20 October by Annex VIII to the Staff Regulations.