C-430/93

VAN SCHIJNDEL AND VAN VEEN v SPF

OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 June 1995 *

1. In these cases the Hoge Raad der Neder- more specific groups of practitioners to par- landen seeks a ruling on two series of ques- ticipate in an occupational pension scheme tions. At issue in the first series is whether established by members of the profession. that court is bound to consider on appeal By virtue of Article 2(2) such a scheme may certain issues of Community law which were entail (a) the establishment of a special pen- not raised in the lower courts even though it sion fund or (b) an obligation on members of would be contrary to national rules of pro- the profession to conclude an insurance con- cedure for it to do so. Although the ques- tract either with the special fund or with an tions arise in the particular context of the approved insurer at their discretion or (c) a competition rules of the Treaty, they raise combination of the two for different parts of issues of general importance about the inter- the scheme. Article 2(3) requires the bodies action of Community law with the legal sys- requesting the introduction of a compulsory tems of the Member States. At issue in the scheme to establish a legal person responsi- second series of questions is whether an ble for operating the scheme as an occupa- occupational pension scheme entailing com- tional pension fund or for supervising the pulsory membership is compatible with the performance by members of their insurance competition rules of the Treaty. obligation. Article 2(4) provides that, where a scheme is made compulsory, any person carrying on the relevant profession, whether as a self-employed person or as an employee, is obliged to comply with the provisions of the scheme. Failure to do so constitutes an offence punishable by a fine under Arti- cle 27. Moreover, Article 31 empowers the pension fund or supervisory body to issue an enforceable order for recovery of unpaid premiums.

travaux préparatoires to the Pensions Law egories of physiotherapists including, in reproduced in the orders for reference, is to Article 2(1)(a), those 'whose activity is solely make possible 'the adjustment of retirement in employment in respect of which they are income so as to reflect the rising general level covered by the rules contained in the of incomes', 'the use of a system of actuari- Algemene Burgerlijke Pensioenwet (General ally based levies or variants of these, so that Pensions Law) or by other pension arrange- younger colleagues make a contribution to ments which are at least equivalent to those the higher cost of providing pensions for laid down in those rules, provided that the older colleagues' and 'provision for the persons concerned give the Fund written granting of pension rights in respect of years notice of their intention and comply with the before the scheme came into force'. That administrative requirements set out in goal could be achieved by means of a mutual Article 25(3)'. scheme 'only if all those belonging to the profession were in principle associated with it'.

2. The pension arrangements concerned 9. Before the lower courts the plaintiffs must cover: sought exemption from compulsory mem- bership, basing their cases on the lack of legal basis in Netherlands law for the collec- tivity requirement. O n appeal the Hoge Raad upheld the Rechtbank's view that the collectivity requirement was compatible with the Netherlands legislation. However, the plaintiffs put forward a new submission (a) ... before the Hoge Raad not relied on before the Kantonrechter or the Rechtbank, namely that the Pensions Law, or at least its applica- tion to the pension scheme established by physiotherapists, is incompatible with Articles 3(f), 5, 85 to 86 and 90 of the EC Treaty. The plaintiffs contend that the nature of those Treaty provisions is such that the (b)(...) all practitioners employed by the Rechtbank should have found in their favour company.' on those grounds even though they had made no such submission at first instance.

11. Nor, in the Hoge Raad's view, can the ferred and entered into at civil law, plaintiffs rely on Article 48 of the Nether- should a national civil court apply lands Code of Civil Procedure, which Articles 3(f), 5 and 85 to 86 and/or 90 of requires a judge to supplement of his own the Treaty establishing the European motion legal grounds not put forward by the Economic Community, even where the parties. According to the Hoge Raad, the party to the proceedings which has an principle of non-interference by the civil interest in the application of those pro- courts in cases involving rights and obliga- visions has not relied upon them? tions freely entered into by the parties means that in supplementing the legal grounds a judge may neither go beyond the limits of the dispute nor rely on facts or circum- stances other than those relied on by the party whose pleas must be supplemented. In this case the Rechtbank would have gone beyond the limits of the dispute if it had considered the Community law points of its (2) If Question (1) must in principle be own motion. Before the Kantonrechter the answered in the affirmative, does that plaintiffs challenged, not their compulsory answer also apply if in so doing the membership of the scheme, but the refusal to court would have to abandon the pas- exempt them from membership under sive role which it should normally Article 2(1)(a) of the pension regulations. observe, in that it would have to (a) go The Hoge Raad concludes that the plaintiffs outside the ambit of the legal dispute or thereby accepted the binding nature of the (b) rely on facts and circumstances Pensions Law of 29 June 1972 and of the other than those which the party having scheme. an interest in the application of those provisions relies on in order to substan- tiate its claim, or do both those things?

(4) Given the aims of the Pensions Law outlined ... above, is an occupational pension scheme which, pursuant to and The procedural questions in accordance with the Law, makes membership compulsory for all, or one or more specified groups of, persons belonging to a profession, entailing the legal consequences outlined ... above attendant upon the Law, to be regarded as an undertaking within the meaning of 14. The first set of questions (those under Articles 85, 86 or 90 of the Treaty? (A)) can be described as 'procedural' ques- tions, the term 'procedural' being used in a very broad sense as covering rules relating to the organization of judicial remedies and the jurisdiction of the courts. At the heart of these cases lie issues about the impact of Community law on procedural matters in this broad sense as they are organized in the (5) If so, is the fact of making membership legal systems of the Member States. of the occupational pension scheme for physiotherapists referred to in 3.1(B) compulsory a measure adopted by a Member State which nullifies the useful effect of the competition rules applica- ble to undertakings, or is this the case only under certain conditions, and if so, 15. The structure of the three procedural under which? questions is based on the premise that an appeal in cassation is in principle confined to challenging an error of law made by the court whose decision is the subject of the appeal. Since in the present cases the point of law was not taken by the parties in the courts below, the question arises whether those courts could or should have raised the (6) If the last question must be answered in point themselves, since otherwise they can the negative, can other circumstances have made no error of law. Accordingly the render compulsory membership incom- Hoge Raad's first question asks whether patible with Article 90 of the Treaty, a national civil court should apply of its and if so, which?' own motion certain rules of the Treaty, in

particular those on competition, where the ther hearing held jointly with the hearing in parties have not relied upon them. Its second the present cases on 4 April 1995. question arises only if the first question must in principle be given an affirmative reply. It asks whether that is so even though the national court would then have to go beyond the passive role assigned to it by national procedural rules by considering grounds going beyond the parties' claims and calling for further factual evidence in support of those grounds. If so, the third question asks whether the Treaty rules in question may be relied upon by parties for the first time before a court of cassation even though the 17. In my Opinion of 4 May 1994 in Peter- court would then be obliged to set aside broeck I took the view that Community law procedural rules which preclude reliance on did not preclude the national rule in ques- new grounds requiring investigation of the tion. I based that view on the fact that it had facts. In my view the first and second 'long been established by this Court's case- questions, taken together, call for a negative law that, in the absence of Community rules, reply. The third question therefore does not it is for the domestic legal system of each call for a reply. Member State to determine the courts having jurisdiction and the procedural conditions governing actions intended to ensure the protection of directly effective Community rights, provided that those conditions fulfil two requirements: they are not less favour- able than the conditions relating to similar actions of a domestic nature; and they do not render virtually impossible 2or excessively difficult 3 the exercise of rights conferred by Community law'. 4 Since none of the claims covered by certain exceptions provided for by the Belgian rules was comparable to Peterbroeck's claim and since the time-limit laid down by the rules could not be regarded 16. The cases raise similar issues to those as unreasonable, I concluded that the Belgian raised by the Peterbroeck 1 case, in which the rules met the requirements laid down by the Court of Appeal, Brussels, asked the Court Court. whether a national court must set aside a national procedural rule preventing it from considering a point of Community law raised by one of the parties after the relevant 2 — See e. g. Case 33/76 Rewe v Landwirtschaftskammer Saar- deadline. I delivered my Opinion in that case land [1976] E C R 1989, paragraph 5of the judgment; Case 199/82 Amministrazione dette Finanze dello Stato v San on 4 May 1994. The oral procedure in the Giorgio [1983] ECR 3595, paragraph 12; Case C-208/90 Emmott [1991] ECR I-4269, paragraph 16. See also case was subsequently re-opened and a fur- Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] E C R I-1761, paragraphs 27 to 29. 3 — See San Giorgio, cited in n o t e , paragraph 14 of the judgment; Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 43. 1 — Case C-312/93, Opinion of 4 May 1994. 4 — Paragraph 17.

19. In Simmenthal 5 the Court held that a 20. In Factortame 8 also there was a compel- national court which was called upon, within ling need for the Court to remedy the inad- the limits of its jurisdiction, to apply provi- equacy of the judicial protection of Commu- sions of Community law was under a duty nity rights afforded by national law. The to give full effect to those provisions without applicants had challenged, by way of an waiting for a conflicting national measure to application for judicial review, the compati- be set aside by legislation or by the Italian bility with Community law of certain provi- Constitutional Court. The crucial impor- sions of a United Kingdom Act of Parlia- tance of the ruling for the integrity of the ment. The Divisional Court of the Queen's Community legal order is clear. Under the Bench Division sought a ruling on the matter system established by the Treaty Commu- from the Court. At the same time the appli- nity law relies for its enforcement on the cants sought interim relief in the form of national courts. Each national court must be suspension of the application of the disputed able to give effect to any Community rules provisions. The order of the Divisional Court granting such relief was set aside by relevant to the area of law in which it has the Court of Appeal on the ground that the jurisdiction. If the Constitutional Court United Kingdom courts had no power to alone had jurisdiction to set aside national law conflicting with Community law, that

6 — See the Opinion of Advocate General Reischl at p. 653. 7 — Ibid, at p. 656. 5 — Case 106/77 Amministrazione delle Finanze dello Stato v 8 — Case C-213/89, The Queen v Secretary of State for Trans- Simmenthal [1978] ECR 629. port, ex parte Factortame Ltd e. a. [1990] ECR I-2433.

23. The present case is plainly distinguish- able from Simmenthal and Factortame and there is in my view no reason to extend the principles stated in those cases so as to afford protection to those who have not brought 21. The ruling, although it inevitably gave claims in the appropriate way under legal rise to political debate, was not in legal terms systems which afford them proper opportu- revolutionary, or indeed surprising, as was nities of doing so. I agree therefore with the shown by the response of the English judges 9 position taken by all the Member States who themselves. Judicial protection of Commu- submitted written observations, namely nity rights would clearly have been inade- France, Germany, the Netherlands and the quate, indeed illusory, if, pending the deliv- United Kingdom (all of whom were also ery of its final judgment following a ruling represented at the hearing) and with the pos- by the Court of Justice, the Divisional Court ition taken at the hearing by Ireland and (in had been unable to grant interim relief to the Peterbroeck case) Belgium. Spain and prevent the party seeking such relief from Greece, however, took a different position at incurring irremediable damage. It is note- the hearing. The Spanish Government sug- worthy also that the English courts subse- gested that a national court was required to quently assumed the power to grant injunc- consider, if necessary of its own motion, tions against the Crown in proceedings of points of Community law notwithstanding the same type even where Community rights any national procedural rules to the contrary. were not in issue. 10 It based that conclusion on (a) the primacy of Community law, (b) the principle of the effectiveness of Community law and (c) the 9 — See the speech of Lord Bridge of Harwich in Regina v Sec- need to ensure uniform application thereof. retary of State for Transport ex parte Factortame Limited Similar arguments were advanced by the and Others [1991] AC 603, in particular at p. 658; [1990] CMLR 375. Greek Government. I will consider each 10 — See the decision of the House of Lords in M v Home Office argument in turn. [1994] 1 AC 377.

25. But as regards procedural rules, the pri- macy of Community law does not require that they should be overridden in all circum- stances so as to allow Community law to enter the arena at any stage in the proceed- ings. As the Court's case-law has shown, it is sufficient that individuals are given, by the 27. Moreover, if the view were taken that national procedural rules, an effective oppor- national procedural rules must always yield tunity of enforcing their rights. to Community law, that would, as will appear below, unduly subvert established principles underlying the legal systems of the Member States. It would go further than is necessary for effective judicial protection. It could be regarded as infringing the principle of proportionality and, in a broad sense, the 26. It is true that the public interest in the principle of subsidiarity, which reflects pre- proper application of Community law must cisely the balance which the Court has be taken into account, as well as the interests sought to attain in this area for many of the parties. However, the approach con- years. It would also give rise to widespread

I-4715

OPINION OF MR JACOBS — JOINED CASES C-430/93 AND C-431/93

anomalies, since the effect would be to afford Factortame, the judgments in Johnston, 12 greater protection to rights which are not, by Emmott 13 and Marshall II. 14 virtue of being Community rights, inher- ently of greater importance than rights rec- ognized by national law. It can, for example, scarcely be argued that Mr van Schijndel's and Mr van Veen's putative right under Community law to choose their own insur- ance scheme is more important and merits 29. The assumption underlying the system greater protection than, for example, the established by the Treaties, however, is that right of a plaintiff to recover damages for the need for effectiveness and proper judicial personal injury. protection can normally be satisfied by national remedies enforced through the national courts in accordance with national procedural rules. Thus, for example in Rewe 15 the Court stated:

I-4716

VAN SCHŲNDEL AND VAN VEEN v SPF

I-4717

O P I N I O N O F MR JACOBS — J O I N E D CASES C-430/93 A N D C-431/93

court in the continental systems is deemed to in the common law systems the courts will know the law ('jura novit curia' or 'curia not do so. The reality is otherwise. While, in novit legem'); it must apply the appropriate the former systems, the court may raise a legal rules to the facts as they are presented new point of law, it must not exceed the lim- to the court by the parties ('da mihi factum, its of the case as defined by the claims of the dabo tibi jus'); and if necessary it will engage parties, who remain 'masters of the litigation' for that purpose in its own legal research. In (dominus litis). N o r may it generally raise a the English, Irish and Scottish systems, on new point involving new issues of fact. That the other hand, the court has a less active, or is precisely the position in the civil pro- even a passive, role: the procedure is gener- cedure of the Netherlands, as explained by ally based on the assumption that the court the Hoge Raad in the orders for reference, 17 has no independent knowledge of the law, and the position appears to be the same in that it is dependent upon the submissions many other systems. Moreover, in many sys- advanced by counsel for the parties, and that tems, if the court does raise a new point, it its function essentially is to adjudicate on the will, or must, invite the parties to address exclusive basis of their submissions. Accord- argument to the point, as would an English ing to one commentator, 'perhaps the most court. An English court, for its part, is in no spectacular feature of English procedure is way precluded from raising a point of law that the rule curia novit legem has never which the parties have not relied upon. been and is not part of English law'. 16 Indeed a comparative and detailed study of the approach of an English court and, say, a French court to these matters will show that the differences are not great. 18

policy. For centuries English law has for that ment, for example, on what constitutes a reason refused to enforce illegal contracts; as matter of public policy (moyen d'ordre the point was put in a modern case: public). To impose on all national courts a requirement to apply Community law of their own motion, although it might not be impossible to put into practice in any system, would cause a degree of disruption which might vary in different systems but would probably be significant in all of them. 'Where a transaction is on its face manifestly There would also be difficulty in deciding illegal the Court will refuse to enforce it whether such treatment of Community law whether the point is pleaded or not and was required for the whole of Community whether either party raises the point or not, law or only for certain parts of it, and if so and even if the point arises for the first time which parts. on appeal. The reason for this rule is that the Queen's Courts may not be used to enforce unlawful contracts, whatever the wishes of the parties ... .' 19

38. For reasons both of principle and of practice, therefore, the conclusion should be 36. Even within the English system, how- that a national court must apply of its own ever, the extent to which a court will inter- motion a provision of Community law only vene and raise questions of its own motion where it would be required to apply of its will vary according to the context: it may own motion a corresponding provision of depend, for example, on the type of proceed- national law. That might admittedly lead to ings (civil, criminal, administrative), on the the unequal application of Community law level of proceedings (first instance, appeal on but such unequal application is, as we have law and fact, or appeal on law alone), on the seen, a consequence of the variety of the nature of the judicial body (court or tribu- national legal systems themselves. nal).

40. Such considerations apply especially in cassation proceedings in the Member States, since in cassation proceedings the jurisdic- tion is generally limited to considering whether there was an error of law in the 43. Turning then to the Netherlands rules in judgment of the court below, so that there is issue in the present cases, I do not consider no scope either for the parries or for the that they make it unduly difficult for a plain- court to raise new points of law. tiff to enforce his Community rights. The rules merely seek to ensure the orderly and efficient conduct of proceedings by prevent- ing the plaintiff from subsequently broaden- ing the subject matter of the dispute as defined in his application to the trial judge and from raising new issues on appeal in cas- sation which go beyond the subject matter of 41. The raising of new grounds not pleaded the dispute and which would require further in the courts below is often severely investigation of the facts. It may be noted restricted. While, for example, the German that, subject to those restrictions, the Neth- Bundesgerichtshof and the French Cour de erlands rules are not particularly demanding Cassation are comparatively free to raise of the parties. Indeed Article 48 of the Neth- grounds of their own motion, the Belgian, erlands Code requires the trial judge, if nec- Spanish, Italian and Netherlands Courts of essary, to supplement their legal arguments Cassation must in principle limit themselves of his own motion. to the grounds put forward by the parties. Subject to limited exceptions the Belgian Court of Cassation is not even entitled to raise grounds of public policy.

Uniform application of Community law

46. I shall comment finally on several other arguments put forward during the proceed- ings. First, as I noted at paragraph 44 of my Opinion of 4 May 1994 in Peterbroeck, it is not possible to rely on Article 177 of the Treaty in support of the proposition that a national court must always be able to raise of its own motion a Community law issue which the parties have failed to plead. Article 177 merely establishes the mechanism by which a national court, properly seized of a 45. The third objection raised by the Spanish Community law issue, may obtain a ruling Government was that such a view would on it from the Court. While Article 177 pre- lead to a lack of uniformity in the applica- cludes the application of procedural rules tion of Community law; in Member States which prevent a national court from seeking whose procedural rules are less strict, effect a ruling in such circumstances, it does not may be given to Community law notwith- address the prior question of the conditions standing a lack of diligence on the part of the under which such an issue is to be raised parties. A degree of disparity in the applica- before the national court. tion of Community law is however inevita- ble in the absence of harmonized rules on remedies, procedure and time-limits. To take an obvious example, if an unwary plaintiff fails to observe a time-limit for lodging an administrative complaint or bringing pro- ceedings, his claim may be time-barred; such time-limits vary from State to State and may also depend on the particular form of rem- 47. Secondly, it may be noted that the Hoge edy. It cannot seriously be suggested that, in Raad's first question is based on the assump- the interests of uniformity, Community law requires that all time-limits for claims arising from it must be set aside. In the absence of 22 — See Case 130/79 Express Dairy Foods v Intervention Board for Agricultural Produce [1980] ECR 1887, paragraph 12 of harmonized rules, the sole requirement can the judgment.

48. For the reasons already given, I do not think that it follows from the principle of primacy that all Community rules must be given special status as far as national rules of procedure are concerned. The Community 50. N o such issue arises in these cases. If public interest in preserving the integrity of none of the parties to the present dispute had the Community legal order and proper pro- chosen to rely on Community law, there tection of the rights of individuals under would have been no overriding Community Community law can be adequately met by public interest in requiring the national court the principles already developed by the to raise complex issues of Community com- Court. petition law regardless of the wishes of the parties. The sole Community interest in the present cases is that of adequate judicial pro- tection, an interest which in my view was met.

49. I do not however rule out the possibility that there might be circumstances in which a national court would be obliged to consider 51. Finally, the present cases are plainly dis- a Community rule not relied on by the par- tinguishable from Duijnstee. 23 There the ties, even if that entailed going beyond the dispute as defined by the parties' claims. A national court might be obliged not to enforce an agreement which was manifestly 23 — Case 288/82 Duijnstee v Goderbauer [1983] ECR 3663.

I - 4722

VAN SCHIJNDEL AND VAN VEEN v SPF

52. Consequently, in my view the answer to be given to the national court's first and sec- ond questions is that, in proceedings such as those brought before the national courts in the present cases, Community law neither 54. The Court has consistently held that: 26 requires nor empowers a national court to set aside national procedural rules, applicable without distinction to claims based on national and Community law, preventing it from applying Community provisions not 'The need to provide an interpretation of Community law which will be of use 24 — 'Where a court of a Contracting Sute is seised of a claim which is principally concerned with a matter over which the courts of another Contracting State have exclusive juris- diction by virtue of Article 16, it shall declare of its own motion that it has no jurisdiction.' 26 — Case C-378/93 La Pyramide [1994] ECR I-3999, paragraph 14 of the judgment. See also Joined Cases C-320/90 to 25 — See in particular paragraph 14 of the judgment. C-322/90 Telemarsicabruzzo e. a. [1993] ECR I-393.

I - 4723

OPINION OF MR JACOBS — JOINED CASES C-430/93 AND C-431/93

to the national court makes it necessary persons belonging to a profession constitutes that the national court define the factual an undertaking for the purposes of Article and legislative context of the questions it 85, 86 or 90 of the EC Treaty. It seems to me is asking or, at the very least, explain the that that question should receive a negative factual circumstances on which those reply. questions are based ... .'

56. The plaintiffs refer to the judgment in Höfner 28 in support of a broad view of the concept of undertaking encompassing the That is particularly true in an area such as Fund. There the Court held that a public competition law which is characterized by body carrying on employment procurement complex legal and factual situations. 27 It is activities was to be regarded as an undertak- of course precisely because the competition ing for the purposes of Articles 85 and 86 of issues have not been debated before the the Treaty. The Court stated: 29 national courts that the Hoge Raad was unable, in its order for reference, fully to describe the factual and legal background to this aspect of the case.

57. The position in relation to social security schemes is however more complex. Pension schemes take a variety of forms, ranging from State social security schemes at one end of the spectrum to private individual 58. The Court has already had occasion to schemes operated by commercial insurers at consider the scope of the Treaty rules on the other. Although the potential for compe- competition in relation to certain schemes tition exists even between those schemes (as falling in the intermediate category in Poucet is demonstrated by the fact that in the and Pistre. 33 There the Court held that the United Kingdom private pension arrange- term 'undertaking' in Articles 85 and 86 of ments may partly replace the state social the Treaty did not cover bodies administer- security system), it seems clear that the ing the sickness and maternity insurance Community competition rules were not scheme for self-employed persons engaged in intended to apply to State social security non-agricultural occupations and the pension schemes. The difficulty lies in classifying scheme for skilled trades. The schemes pur- intermediate categories of schemes such as sued a purely social objective, were non- those concerned in these proceedings. In its profit-making and were based on the princi- initiatives in the sphere of pensions the ple of solidarity. They were intended to Commission has recognized the broad range provide insurance cover for all persons sub- of schemes and also the need to respect the ject to the scheme regardless of their wealth choices made by Member States regarding or state of health at the time of their affilia- pension arrangements in pursuing its three tion. goals of cross-border pension fund manage- ment, removal of restrictions on investment of pension fund assets and cross-border membership of schemes. 30 It may be noted in particular that the Commission's

maternity scheme, in a redistribution of 62. It seems to me that, although the pen- revenue inasmuch as members contributed in sion fund in question here differs in certain proportion to their professional income respects from those in issue in Poucet and (persons in receipt of invalidity pensions and Pistre, it does have the essential characteris- retired members being exempt from the tics which led the Court to its conclusion in obligation to contribute) but received those cases. The Fund unquestionably per- identical benefits. In the case of the pension forms a purely social function. It was set up scheme, the principle of solidarity was by the physiotherapists' profession and com- reflected in the fact that the pensions of pulsory membership of it was provided for retired members were financed by contribu- at the request of the profession by a ministe- tions of active members and by the fact that rial decree issued under the Pensions Law. pensions were not awarded in proportion to As already noted, the aims of that Law are to contributions paid. There was also a degree ensure that retirement incomes reflect the of solidarity between different schemes. rising general level of incomes, to allow The schemes were necessarily based on younger colleagues to contribute to the compulsory membership, which was higher cost of providing pensions for older essential for the financial equilibrium of the colleagues and to provide for pension rights schemes. in respect of years prior to the entry into force of the schemes. The Fund is non- profitmaking. Its board of directors, who do not receive remuneration but merely expenses (Article 7 of the Fund's Statutes), is made up exclusively of members of the Fund (Article 5 of the Statutes).

65. That is so notwithstanding the fact that the scheme is funded, so that pensions are financed from reserves rather than from cur- 64. In the light of the foregoing it seems to rent contributions. The Fund has convinc- me that the Fund more closely resembles a ingly argued that the establishment of sub- social security institution than a commercial stantial reserves is necessary if a scheme not insurer, and the scheme itself is more akin to financed from the State budget is to maintain a social security scheme than to commercial the real value of pensions in times of severe pension arrangements, even those organized inflation. That pension funds are major on a collective basis. The members of the investors on capital markets certainly scheme are contributing to a common fund explains the Commission's initiatives with rather than receiving a commercial service. respect to cross-border fund management Consequently, in my view the Fund, in its and investment, but it is not a decisive factor relations with its members, does not act as an in determining whether in its relations with undertaking but as a social institution which its members a fund acts as an undertaking the members of the profession have for the purposes of competition law.

Conclusion

66. Accordingly, I a m of the o p i n i o n that the C o u r t s h o u l d give the following reply t o the first and second questions p u t b y the H o g e Raad, the remaining questions n o t calling for a reply.

In proceedings such as those b r o u g h t before the national courts in the present cases, C o m m u n i t y law neither requires n o r e m p o w e r s a national court to set aside national p r o c e d u r a l rules, applicable w i t h o u t distinction t o claims based o n national and C o m m u n i t y law, preventing it from applying C o m m u n i t y provisions n o t relied u p o n b y the parties w h e r e that w o u l d require the national c o u r t to go outside the ambit of the dispute or t o raise issues of fact n o t pleaded b y the parties.