C-52/96
ECLI:EU:C:1997:262
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OPINION OF MR LÉGER — CASE C-52/96
OPINION OF ADVOCATE GENERAL LÉGER delivered on 29 May 1997 *
1. In the present proceedings, brought under or Article 169 of the EC Treaty, the Commis sion claims that, by failing to adopt the national measures necessary to ensure that officials of the European Communities are able to transfer their retirement pension rights to the Community pension scheme, — pursuing an activity in an employed or the Kingdom of Spain has failed to fulfil its self-employed capacity; obligations under Article 11(2) of Annex VIII to the Staff Regulations of Officials of 1 the European Communities and Article 5 of the EC Treaty. It also asks that the Span ish Government be ordered to pay the costs.
shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat-rate redemption value 2. Article 11(2) of Annex VIII to the Staff of retirement pension rights acquired by vir 2 Regulations provides: tue of such service or activities.
'An official who enters the service of the Communities after: In such case the institution in which the offi cial serves shall, taking into account his grade on establishment, determine the number of years of pensionable service with which he — leaving the service of a government shall be credited under its own pension administration or of a national or inter scheme in respect of the former period of national organization; service, on the basis of the amount of the actuarial equivalent or sums repaid as afore said.' * Original language: French. 1 — Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of offi- cials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (1), p. 30), as amended by Council Regulation (EEC, Euratom, ECSC) No 571/92 of 2 March 1992 modifying the Staff Regulations of officials of the European Communities (OJ 1992 L 62, p. 1, hereinafter 'the Staff Regulations'). 3. The Staff Regulations '[are] binding in 2 — Or, alternatively, 'the provision at issue'. [their] entirety and [are] directly applicable
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COMMISSION v SPAIN
in all Member States.' 3 They therefore 7. Having received no official response to entered into force, in Spain, with effect from that letter, the Commission issued a reasoned 1 January 1986. The technical nature of the opinion on 13 December 1993 concerning Staff Regulations means that, in order to give the lack of national measures necessary to effect to the obligation set out in Article ensure the implementation of Article 11 (2) of 11(2) of Annex VIII to the Staff Regulations, Annex VIII to the Staff Regulations. Article 5 of the Treaty requires Member 5 States to adopt particular measures.
8. Despite numerous exchanges of views and 4. The Kingdom of Spain took certain steps contacts with the Commission concerning to implement the provision at issue in its the amendments necessary to ensure that internal legal order. The amended version of national legislation was in conformity with the Law on pensioners and retired employ Community law, the Spanish authorities did ees of the State was thus adopted and pub not officially respond to the reasoned 6 lished on 27 May 1987. opinion.
5. Acknowledging, however, that Law was not sufficient to ensure the operation of the 9. On 21 February 1996, noting that the scheme in question, the Spanish Government royal decree [implementing] Article 11(2) of has since 1989, submitted a number of draft Annex VIII to the Staff Regulations had not Royal Decrees to the Commission setting been adopted, the Commission brought out detailed measures in that respect. these proceedings before this Court.
6. The Commission noted that those mea sures were still only in draft form and, on 27 10. The Kingdom of Spain considers that, in October 1992, sent a letter of formal notice view of the complexity of the matter and the to the Kingdom of Spain under Article 169 practical problems arising, the Spanish of the Treaty. authorities have remained in constant contact with the Commission, taking all relevant steps in order to resolve the problems raised as soon as possible and thus discharge the 3 — See, in particular, the judgment in Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 7. obligation set out in Article 11(2) of Annex 4 — Following the accession of the Kingdom of Spain to the VIII to the Staff Regulations. However, [in European Communities. spite of that], it accepts that it failed to take 5 — Judgment in Commission v Belgium, paragraph 9. 6 — Page 3 of the [French] translation of the application. appropriate measures, whether general or
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OPINION OF MR LÉGER — CASE C-52/96
particular, under Article 5 of the Treaty, to 12. Moreover, this Court has consistently implement the provision at issue with effect held that a Member State may not plead pro from 1 January 1986. visions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations resulting 8 from a Community regulation.
11. It should therefore be held that the Spanish Government failed to fulfil its obli gations under Article 11(2) of Annex VIII to the Staff Regulations and Article 5 of the 13. The Commission's application should Treaty. therefore be granted.
Conclusion
14. Consequently I propose that the Court :
(1) declare that , by failing to adopt the necessary laws , regulations and administra tive provisions necessary to conform to Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities , the Kingdom of Spain failed to fulfil its obligations under that article, and Article 5 of the EC Treaty ;
(2) order the Kingdom of Spain to pay the costs , in accordance with Article 69(2) of the Rules of Procedure .
7 — Defence. 8 — Judgment in Commission v Belgium, paragraph 17.
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