C-129/87

Mr President, 4. For ECSC officials the 'Regulation Members of the Court, laying down the Staff Regulations and Conditions of Employment of Other Servants of the Community" adopted by the Committee of Presidents of the ECSC had, in the first subparagraph of its Article 1. The Community Staff Regulations entitle 11 (2), provided for the transfer entitlement Community officials to transfer to the in the following terms: 'an official who Community's pension scheme rights enters the service of the Community after acquired in a national scheme before they leaving the service of a government adminis­ entered the Community civil service. In two tration or of a national or international separate cases the Luxembourg Cour de organization shall have the right, on cassation has referred to this Court a becoming established with the Community, number of questions for a preliminary ruling to pay to it either: — the actuarial equi­ which, once again, bear witness to certain valent of retirement pension rights acquired difficulties experienced in the effective by him in the government administration, implementation of that transfer. national or international organization or undertaking; or — the sums repaid to him from the pension fund of the government administration, organization or undertaking at the date of his leaving its service'. Pursuant to Article 2, the regulation was 2. I shall deal in the first place with the due to enter into force on 1 January 1962. Retter case, the facts of which took place It should be mentioned that this provision before those in the Decker case. reiterated with appropriate textual amendments the provisions of Regulation No 31 (EEC), 11 (EAEC) of the Councils of 18 December 1961 laying down the Staff Regulations and the Conditions of Employment of Other Servants of the 3. Mr Retter was established as an official European Economic Community and the of the ECSC on 5 February 1962. Prior to European Atomic Energy Community' his establishment he had been employed in which also entered into force on 1 January the service of a company and had been 1962. However it must be noted that unlike affiliated for 61 months to the Caisse des this latter regulation, which was adopted pensions des employés privés (Pension fund pursuant to Articles 189 of the EEC Treaty for private employees), hereinafter referred and 161 of the EAEC Treaty, the regulation to as 'the Fund'. The issue centres on the of the Committee of Presidents of the question whether the scheme for the reim­ ECSC was apparently not published in the bursement of the surrender value of contri­ Official Journal of the European Communities butions, which was in force in Luxembourg and does not seem to me to have been in 1964 when Mr Retter requested and published elsewhere. obtained such a reimbursement, is compatible with Community law.

6. It seems to me that such a situation justifies this Court requiring the oral (ii) the sums repaid to him from the pension procedure to be reopened in order that fund of the government administration, argument may be heard as to the legal organization or undertaking at the date effects of the 1962 ECSC Staff Regulations of his leaving its service.' and, more precisely, of the provision relating to transfer of pension rights, in particular when there has been no publi­ From the point of view of Luxembourg law cation. Mrs Decker was requesting the application of the provisions of the Law of 14 March 1979 which set out the detailed rules of 7. In these circumstances I consider that I domestic law relating to the transfer entit­ do not have to continue my Opinion in the lement provided for by the abovementioned Retter case today. provision of the Staff Regulations. In particular the Luxembourg law amended Article 18 of the Law of 16 December 1963 8. The legal background to the Decker case and provided that, upon request, contri­ is not identical to that in the first case. It butions made to the Luxembourg pension contains a dispute over a request for scheme, together with compound interest transfer of pension rights formulated in thereon at the rate of 4 % per annum from November 1981 by an official of the 31 December of each year of membership, European Parliament who was established would be transferred to the Community in April 1981. Under Community law that pension scheme and provided further that request was based on the uniform regu­ requests made more than one year after the lations for staff of the European official's establishment would not be Communities adopted by means of Regu­ admitted. It became clear during the course lation (EEC, Euratom, ECSC) No 259/68 of the oral argument presented at the of the Council of 29 February 1968 2and hearing that the scheme for buying up more precisely on the first subparagraph of contributions which is laid down in the Article 11 (2) of Annex VIII which provides aforesaid law concerns all contributions as follows: made, in other words both the employee's and the employer's contributions.

'may in no case be laid down in such a way as to render impossible in practice the 10. Since it was for the national legislature exercise of the rights which the national to determine the detailed rules for the court must protect', 3 transfer provided for by the Staff Regu­ lations I agree with the analysis of the Commission and of the United Kingdom according to which those detailed rules may include the rule that if the request to the I take the view that the detailed rules for competent national authority is not made the exercise of a right conferred by a within one year the request will not be directly applicable Community regulation admitted. The requirements of sound may not be formulated by the national legis­ management of the national authorities lature in such a way as to render it which administer the pension rights impossible or even difficult. More precisely, acquired by individuals before they entered as the United Kingdom stressed in its the Community public service seem to me in written observations, the period within principle to justify the concern which the which the transfer entitlement must be national legislature may have in obliging a exercised must be sufficient to allow an Community official to make up his mind official both to form an opinion and to within a certain period. make an informed decision.

13. From this point of view, the setting of a 11. However, since the time-limit in period of one year from the official's estab­ is question one imposed by national law on lishment in the Community civil service, as the effective exercise of a right granted by provided by the Luxembourg law of 1979, Community law it is only compatible with which was, moreover, adopted after Community law if it complies with certain discussion with the Commission, does not limits. appear to render impossible or even difficult the exercise of the transfer entitlement, especially if one bears in mind, as the Fund pointed out, that the official's establishment is normally preceded by a one-year prob­ 12. Drawing on an analogy with the ationary period. Ferwerda judgment of 5 March 1980 in which the Court acknowledged that it was 3 — Cue 265/78 [1980] ECR 617, paragraph 10.

18. Developing its argument on the close 16. The Commission referred mainly to the cooperation between national adminis­ consistent cooperation between Community trations and Community institutions on the and national institutions concerning transfer transfer of pension rights the Commission of pension rights and considers that as a explained that such cooperation was based result of this cooperation, which is based on on the practice of using the Community Article 5 of the Treaty and more specifically administration as 'the official's appointed on Article 19 of the Protocol on the agent' and inferred from this that if the Privileges and Immunities of the European official clearly expressed his wish to his Communities, a request by an official, administration within one year after his formally expressed to his Community establishment then his wish should be administrative within the one-year period, considered to have been validly expressed. cannot be treated as inadmissible.

could be considered to meet the condition mediary as regards the effective implemen­ laid down in the Luxembourg law of 1979. tation of the entitlement to transfer, and However, as we have seen, it is difficult to more precisely the drawing-up of officials' derive a legal basis for the 'appointed agent' requests for that transfer. The Commission's situation from the provisions of the Treaty written observations and the annexes thereto and the Protocol on the Privileges and reveal that a veritable procedure for the Immunities relied on and there does not preparation of the requests had been estab­ appear to be any other Community lished by the Community administration: provision which could provide the necessary the informing of officials of the entitlement basis in this respect. to transfer as made available under the Luxembourg legislation, centralization of officials' requests for information concerning the sums transferable and the forwarding of those requests to the 20. It must also be added that at the Luxembourg funds; receipt of replies and hearing the Commission's representative their transmission to the officials concerned; indicated in reply to a question that he was centralization of transfer requests properly not going so far as to consider the so-called and their transmission to the Community institution to be the necessary Luxembourg funds. Officials were, agent of national institutions. moreover, made subject by their adminis­ tration to a time-limit for making up their mind.

OPINION OF MR DARMON — CASE 129/87

27. That judgment seems particularly 25. The judgment of 22 January 1986 in relevant in so far as it develops the idea Denkavit v FORMA 5may help to form an that, in order to determine whether a opinion on this point. time-bar is unreasonable, it should be considered whether account has been taken of exceptional circumstances constituting 26. Ruling on the validity of Article 15 of force majeure which enable forfeiture of the Commission Regulation EEC No 1380/75 right to transfer to be avoided. It appears to of 29 May 1975: laying down detailed me that a solution of that kind, which was rules for the appliciation of monetary adopted as regards purely Community rules, compensatory amounts which provided that can be transposed to a situation in which a 'except in cases of force majeure, no claim Community rule establishes an entitlement for payment of a monetary compensatory and national legislation lays down the amount shall be entertained unless the detailed rules for the exercise of that entit­ relevant documents are submitted within lement. To be more precise, it appears to me the six months following the day on which to be possible to interpret the first the customs formalities were completed', the subparagraph of Article 11 (2) of Annex Court stated that VIII to the Staff Regulations as allowing the national legislature to provide that the right to transfer will be forfeited if it is not exercised within a given period of ume 'the barring of claims on the ground that provided that that period is defined the requisite documents:have been submitted reasonably, that is to say that its length will out of time is not a penalty but, as a general allow an informed choice and provided also rule, the normal consequence of the expiry that exceptional circumstances constituting of any prescribed period the observance of force majeure may justify its being exceeded. which is mandatory', 6 For the meaning of force majeure it is in my view appropriate to refer to the formula in the judgment of the Court of 9 February 1984 in Busseni: but went on to recall that Article 15 provided that

not constitute force majeure which would 30. It is not without some hesitation that I allow the time-limit to be fixed by the have arrived at the solution which I have Community regulation in question to be just suggested to the Court. In averting the extended. However, this conclusion may be effects of a regrettable omission on the part explained on the grounds that the provision of the Community administration, that itself set out the procedure which the solution does not require it to bear the operator was to follow if the document was consequences of the omission, at least with not returned. regard to the official concerned. However it appeared to me that the Court's case-law led logically to defining the limits within which the national legislature may prescribe a period within which a right granted by a 29. In the case before this Court today it Community regulation must be exercised will be the responsibility of the national and to including within those limits the court to determine whether a particular taking into consideration of elements which situation exhibits the characteristics of force constitute, so far as the officials in question majeure as defined in the Busseni judgment. are concerned, force majeure.

31. Consequently I suggest that the Court should:

(i) order the reopening of the oral procedure in the Retter case, and

(ii) in the Decker case, rule as follows:

The first subparagraph of Article 11 (2) of Annex VIII to the Staff Regu­ lations of the European Communities does not preclude national legislation from prescribing a period within which the option conferred by that article must be exercised, provided that the period is determined in such a way as not to make it impossible or even difficult to exercise the option and provided also that the exercise thereof may not be barred as being out of time where in respect of an official, this is due to abnormal difficulties independent of his will and which he could not avoid.'