C-37/89

Mr President, the Fund in September 1985 to have the Members of the Court, pension rights he had acquired with it trans- ferred to the Community pension scheme. The Fund's refusal to do so, which was repeated after an internal administrative appeal, is the subject-matter of Mr Weiser's 1. By judgment of 26 January 1989, the action before the national courts and it is tribunal d'instance de Paris (cinquième one of the grounds for that refusal which arrondissement) (District Court for the Fifth led the tribunal d'instance de Paris Arrondissement of Paris) referred a question (cinquième arrondissement) to refer a to the Court for a preliminary ruling on the question to the Court for a preliminary interpretation of Article 11(2) of Annex ruling. VIII to the Staff Regulations of Officials of the European Communities (hereinafter referred to as 'Article 11(2)') laid down in Regulation (EEC, Euratom, ECSE) No 259/68 of the Council of 29 February 3. The Fund set out the reasons for its 1968.' The provision deals with the possi- refusal in its reply to Mr Weiser's internal bility open to Community officials, on administrative appeal, dated 3 October becoming established, to transfer to the 1986, by stating that it agreed with the Community pension scheme pension rights opinion of the competent department of the acquired in respect of their previous occupa- French Ministry of Social Affairs and tional activities. National Solidarity, which it had consulted. According to that view, on the one hand, Article 11(2) is not, in the absence of an agreement between France and the Communities, directly applicable in France 2. The proceedings in which the question and, on the other, an avocat, being a self- referred to the Court arose are between employed person, does not come within the Michel Weiser, a French official of the scope of the provision and does not, if Court of Justice, and Caisse nationale des established as a Community official, qualify barreaux français (National Pension Fund for the transfer of his pension rights. for the French Bars, hereinafter referred to as 'the Fund'. Before his appointment on 1 July 1984 to a post of lawyer-linguist as a probationary official of the Court of Justice, M r Weiser had practised since 5 December 4. Let us examine, first, the contents of 1967 as an avocat belonging to the Paris Article 11(2) and in particular the first Bar. As such, he had acquired pension subparagraph thereof: 'An official who rights. When established as a lawyer-linguist enters the service of the Communities after with effect from 1 April 1985, he applied to leaving the service of a government adminis- tration or a national or international organ- * Original language: French. ization or of an undertaking shall have the 1 — Laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the right, on becoming established with that European Communities and instituting special measures Community, to pay to it either: (i) the temporarily applicable to Officials of the Commission (OJ, English Special Edition 1968 (I), p. 30). actuarial equivalent of retirement pension

rights acquired by him in the government and that administration, national or international organization or undertaking; or (ii) the sums repaid to him from the pension fund of the government administration, organ- ization or undertaking at the date of his leaving its service'. 'where a provision of the Staff Regulations requires national measures for its application, the Member States are bound 5. Thus, as the national court rightly under Article 5 of the EEC Treaty to adopt observed, the Fund and the Ministry of all appropriate measures, whether they be Social Affairs were incorrect to contend that general or particular'. 5 Article 11(2) was not directly applicable. According to the very clear terms of the Court's judgment of 20 October 1981 in Commission v Belgium,2 to which the national court's judgment refers and which deals specifically with Member States' obli- However, as the Court is aware, the gations under Article 11(2) of Annex VIII adoption by the Member States of measures to the Staff Regulations of Officials, which for the actual implementation of Article were laid down in a regulation possessing 11(2) has been subject to some vicissitu- des and the majority of the Member States — eight out of 12, according to particulars given by the Commission at the hearing — 'all the characteristics set out in the second are still at the stage of drawing up detailed paragraph of Article 189 of the E E C implementing rules, 28 years after the T r e a t y . . . is binding in its entirety and is adoption of the first provision providing for directly applicable in all Member States'. 3 the transfer of pension rights. 6 That situation has led the Commission to initiate proceedings under Article 169 of the Treaty 6. Admittedly, the scope of the direct on several occasions. applicability of Article 11(2) is rendered relative in so far as, in the absence of arrangements laid down by the Member States for the transfer of pension rights, Article 11(2) cannot be effective and effect cannot be given to applications from 7. According to the information on the file, Community officials who have acquired France has not yet laid down detailed rules pension rights in the Member States. It is for the implementation of Article 11(2) but undoubtedly true that the consequence of an agreement on that subject between the the direct applicability of the Staff Regu- competent national departments and those lations is that they are of the Commission is imminent. Thus, although an application to a French pension institution for the transfer of pension rights 'binding on Member States in so far as their cannot simply be granted in present circum- cooperation is necessary in order to give effect to those regulations' 4 5 — Paragraph 9. 6 — Regulations Nos 31 (EEC) and 11 (EAEC) of the Council of 18 December 1961 (JO L 45, p. 1385), which entered 2 — Case 137/80 [1981] ECR 2393. into force on 1 January 1962, and the regulation laying 3 — Paragraph 7. down the Staff Regulations of Officials of the ECSC, which entered into force on 1 January 1962 (not published 4 — Paragraph 8. in the Official Journal).

stances, it would appear that applications the right of transfer and the scope of Article from persons entitled to transfer rights 11 (2) are distinct from, and independent of, under Article 11 (2) may be granted in the national implementation rules and that the near future. national court is in a position to assess the lawfulness in regard to that provision of a decision taken by a body responsible for managing pension rights which calls in question the very principle of an individual's right to transfer his pension rights.

10. There is a certain convergence in the proceedings before it to reach a determi- written observations submitted to the Court nation as of now on the scope of Article by the Fund, the Commission and the 11(2) and, as a result, on the principle of French Government in regard to the literal the right of an official to transfer pension interpretation of Article 11 (2) as to whether rights acquired as a self-employed person an official who, before his establishment, before he was established.

9. It is thus perfectly clear that the person'. 9 T h e Commission observes that the questions connected with the principle of 8 — Commission's observations, p. 3. 7 — Case 130/87 [1989] ECR 865. 9 — French Government's observations, p. 4.

12. Let me observe at this initial stage that, regardless of what has been argued before the Court, the terms of Article 11(2) seem unequivocal. They in fact seem to be 13. I do not therefore think that recourse directed only to officials w h o were should be had to an artificial use of previously employees or officials. It would language to make the position of an official be very difficult to take the view that the who formerly practised as a self-employed words 'service o f . . . an undertaking' are avocat fit the terms of Article 11(2). Let me capable of referring to practising as a self- add that an interpretation equating the Bar employed avocat. Similarly, it seems to me with a 'national organization' within the that the efforts which were made before the meaning of that provision and arguing that Court at the hearing to give credence to the an avocat is 'in the service' of such a idea that a French avocat, inasmuch as he is 'national organization' in no way deals with a member of the Bar, which is regarded as a the perfectly conceivable case of officials 'national organization', and in the 'service' who, before they entered the service of the 'of' 'national organizations' called courts, is Community, acquired pension rights as self- capable of falling within the scope of Article employed persons in professions which are 11(2) were more commendable than they not organized in the same way as the Bar.

10 — Commission's observations, p. 4. 11 — Emphasis added.

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12 — Case 137/80, paragraph 11. 13 — Paragraph 12.

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O P I N I O N OF M R D A R M O N — CASE C-37/89

The fact that that with approval in that regard the observation regulation, which originally applied to of M r Advocate General Mayras, cited by employed persons, today also applies to self- the Commission: 10 employed persons is not due to an interpre- tation by analogy but, as the Fund points out, to the intervention of the Community legislature in Council Regulation (EEC) No 1390/81 of 12 May 1981. 16 'Although it is true that, in order to obtain the meaning or scope of a Community enactment, it is appropriate if occasion should arise to consider the objective and spirit of its provisions in the light of the 19. However, it must now be asked general arrangement of the legislation in whether the interpretation of Article 11(2) which they are contained, it is not necessary in accordance with its clear and unequivocal to resort to this method of interpretation meaning does not cast doubt on its validity. when one is concerned with a text which in Mr Weiser and the Commission expressly itself is clear and the meaning of which call its validity into question. Moreover, it cannot, bearing in mind the rules of seems to me that the French Government at grammar, semantics and syntax, give rise to least alludes to this possibility.

provides examples of an interpretation as add that, as is illustrated by the Court's 'ambitious' as that proposed by Mr Weiser. judgment of 27 September 1988 in Lenoir In particular, the judgment of 29 September v Caisse d'allocations familiales des Alpes- 1976 in Brack v Insurance Officer, ' 5 in which 16 — Extending to self-employed persons and members of their families Regulation (EEC) N o 1408/71 on the application 10 — Commission's observations, p. 4. of social security schemes to employed persons and their M — Opinion in Case 233/72 Gunnelia v Commission [1973] families moving within the Community (OI L 143, ECR 475, at p. 486. 29.5.1981, p. 1). 15 — Case 17/76 [1976] ECR 1429. 17 — Extract from the question referred to the Court.

Maritimes, '8 ¡t is for the Court to verify the clusion leads it, not to argue expressly that validity of a legislative provision even the provision is invalid, but to state that it though the question referred to it does not has no objection to self-employed persons ask tor this to be done, once the Court being given the same opportunities as em- contemplates interpreting the provision in a ployed persons either by means of an way which may cause it to be rendered amendment of the rules or through informal invalid. agreement. However, at the hearing, the French Government's agent stated that a declaration that Article 11(2) was partly void was also a possibility. 20. Mr Weiser considers that a restrictive interpretation would render Article 11(2) void inasmuch as that provision would 'infringe the prohibition of discrimination by excluding from its scope — without any objective justification — a certain category 22. In the judgment in Newth, cited above, of official'.,9 The Commission presents a concerning the determination of the similar, more detailed analysis, arguing that currency in which the allowance paid where the scope of the provision as determined by an official is retired in the interest of the a literal analysis of Article 11(2) 'cannot be service under Article 50 of the Staff Regu- accepted, since its application would lations of Officials is to be paid, the Court infringe the principle of equality among considered that the general rule in that officials whose circumstances are similar, a article, which provided for payment in the fundamental rule of the organization of the currency of the country to which the official Community civil service' l0 and considers was last employed, in the case of Mr that the principle laid down in the Court's Newth, constituted a 'breach of the judgment of 31 May 1979 in Newth v principle of equality among officials whose Commission10 should be followed, namely circumstances are similar', regarded as a that 'where there is a rule of the Staff Regu- 'superior principle of law'.23 More recently, lations, even if it is clear, which . . . infringes and in a case concerned with the very the principle of equal treatment, a superior question of the transfer of pension rights, principle of law, the latter must prevail and the Court reaffirmed the importance of the the rule of the Staff Regulations must be set principle at issue. In the judgment in Retter aside'.» v Caisse de pension des employés privés, cited above, the Court considered that a situation in which the Staff Regulations of Officials of the ECSC were of a lesser consequence 21. Finally, the French Government 'notes in law than the Staff Regulations of that the provisions of the regulation at issue, Officials of the EEC and the EAEC would as presently drafted and interpreted, do not constitute in regard to ECSC officials guarantee equal treatment as between employed persons and self-employed persons who are insured under a retirement pension scheme'.22 However, that con-

23. Whether Article 11(2), interpreted 'to facilitate movement from national solely in the light of its clear meaning employment, whether public or private, to infringes the principle of equality among the Community administration and thus officials in comparable circumstances ensure that the Communities have the best depends, precisely, on whether the circum- possible chance of being able to choose stances of officials who worked as employed qualified staff who already possess suitable persons, in the broad sense of the term, experience', 25 before being established, and those of officials who were formerly self-employed, such as avocats in France, are or are not comparable. H o w is that comparability or lack of it to be assessed? In what terms is the Commission considers that in the light the comparison to be made? of that objective, both categories of official — former 'employees' and former 'self- employed persons' — are 'placed in com- parable positions and should therefore be treated in the same way' and that 'one group should not be privileged with regard 24. Obviously, there are manifold differ- to social protection or favoured from the ences between being employed, in the broad point of view of recruitment. . . compared sense of the term, and being self-employed. with the other'. 26 Are those differences relevant, however, to the situation that the Court is considering in this case? Do they introduce an absence of comparability which makes it possible to exclude from the scope of Article 11 (2) officials who were formerly self-employed? 26. Let me say here that I view the matter I think that only differences related to the in the same way as the Commission. In content of Article 11(2) itself are relevant. regard to the objective set out above, I can The purpose of that article, I would recall, see no difference between 'former em- is to permit Community officials when they ployees' and 'former self-employed persons' are established to transfer pension rights which would justify their not being treated they acquired under a national pension in the same way. None of the — existing — scheme or under the pension scheme of an differences between a former status as an international organization. It is in the light employed person, in the broad sense of that of that right of officials that it must be term, and a former status as a self-employed assessed whether or not there are person appears to be material to that differences between former employed objective. persons and former self-employed avocats.

put to the Court allows such a conclusion to the principle, of the right of transfer, which be drawn. Since Article 11(2) makes it is the only point at issue here. possible for an official who has been estab- lished to transfer to the Community pension scheme rights under a pension scheme subject to national or international law and since both officials who formerly worked as employed persons and those who were formerly self-employed have acquired rights 29. However, I should point out that the under a pension scheme subject to national French scheme for avocats who become or international law, I consider that it is not members of the judiciary, which permits possible to provide for different treatment them, on certain conditions, to have account for them on the basis of technical taken for the purposes of their civil service differences in regard to the pension rights pension of the periods during which they acquired by one group or the other. In the were practising at the Bar, provides no clues absence of such differences, pension rights as to whether there are or are not any acquired by a self-employed avocat who has technical obstacles to a transfer of the kind become a Community official are, a priori, provided for in Article 11(2).

28. As I have indicated, no technical different system from that provided for in difference was alleged to exist. Moreover, Article 11 (2), and consequently cannot be the French Government does not seem to used for the purposes of comparison. think that there is any decisive difference because it suggests that the scope of Article 11 (2) should be extended and states that even in the absence of an amendment of the rules, an agreement between the pension funds involved would be sufficient to make the transfer possible. For its part, the Fund 30. In so far as no technical difficulty has referred essentially at the hearing to the been raised in connection with a pension difficulties caused by the need to draw up scheme such as that for French avocats for lists of the many pension schemes which transferring pension rights acquired under would be involved if self-employed persons such a scheme in one of the forms were to be allowed to transfer their rights mentioned in Article 11(2) — actuarial equi- rather than to technical obstacles to the valent or amounts paid — I do not think transfers themselves. In fact, I think the Fund has placed itself, rather imprecisely, in 27 — See Decree N o 83.893 of 5 October 1983, in particular, the third paragraph of Article 3 (JORF, 8.10.1983, the area of the implementation, rather than p. 3021).

there is any justification for preventing the is considering applies in favour of certain transfer of such rights. officials of the Communities because they formerly worked as employed persons and excludes other officials of the Communities because they were formerly self-employed. 31. At this stage of the discussion, I am It is thus easy to understand why Regu- therefore forced to conclude that, when lation No 1408/71 is not relevant as a interpreted in accordance with the clear precedent either, as we have seen, in favour meaning of its terms, Article 11(2) creates of a broad interpretation of Article 11(2), 28 an unjustified difference in treatment or in favour of setting aside the principle of between officials who, having regard both equality. The fact that the provisions of that to the purpose of that provision and the regulation, applicable to employed persons techniques involved, are in comparable in regard to social security, were not equally positions as regards pension rights. For that applicable to self-employed persons throws reason, it infringes the principle of equality, no light on the scope of the principle of a superior rule of law. equality in this case. What the Court must assess here is the effects of a provision of the Staff Regulations, not in regard to employed persons, on the one hand, and self-employed persons, on the other, but to

. . or the referred in particular in the judgments in sums repaid to him from the pension fund', Newth and Retter, is fully applicable in this case. the question is whether, by distinguishing between officials who enter the service of the Communities after working as employed persons in the broad sense of that term and those who enter the service of the Communities after being self-employed, that provision does not infringe the well-known 35. What consequences must be drawn in principle cited above of equality of officials answering the question referred to the in comparable circumstances. Court from the finding that the principle of equality has been infringed?

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invalid on the ground that it does not of declaring Article 11(2) of Annex VIII to permit an official who, before entering the the Staff Regulations invalid in so far as it service of the Communities, acquired does not permit an official who has pension rights as a self-employed person to acquired pension rights on the basis of a transfer those rights to the Community previous occupational activity as a self- scheme. In that case, as in the case of the employed person to transfer those rights Court's judgment in Pinna v Caisse d'allo- to the Community pension scheme. cations familiales de la Savoie (No 2), 2 9 it Admittedly, it is natural to wish to avoid the must be considered that the principle of 'dramatization' which is generally involved equality precludes national authorities from in a declaration that a provision is invalid. applying an exclusion which is contrary to However, in this case, such a finding seems Community law and that it is incumbent on to me to be closer to the reality of the those authorities to situation and, what is more, the validity of the provision in question is in fact at issue only as regards what it excludes, not what it already permits. 'draw the inferences in their legal system from a declaration of invalidity made in the context of Article 177 of the Treaty'. 3 0

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the Court should try to avoid a situation in Member State are permitted to do is which, in regard to the transfer of pension forbidden to those from other Member rights, what former avocats from one States.

40. I therefore propose that the Court should rule as follows:

'An official of the European Communities who, before entering the service thereof, acquired pension rights under a national pension scheme on the basis that he had been a self-employed avocat cannot be denied the right to transfer those rights under Article 11(2) to Annex VIII to the Staff Regulations of Officials of the European Communities, since that provision is invalid in so far as it does not permit the transfer of rights acquired under a pension scheme for a self-employed occupation.'

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