Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . Officials - Staff Regulations of Officials of the ECSC - Consequence in law
2 . Officials - Pensions - Pension rights acquired before entering the service of the Communities - Transfer to the Community scheme - Member States' obligations - Adoption of measures necessary for the transfer - National legislation excluding both transfer and maintenance of rights - Not applicable
( Staff Regulations of Officials of the ECSC, Annex VIII, Art . 11(2 ) )

1 . The unity of the three Communities in regard to their Staff Regulations would be compromised if, by reason of the circumstances in which the Staff Regulations of Officials of the ECSC were adopted in 1962, among which is the fact that they were never published in the Official Journal, those regulations were of lesser consequence in law than the Staff Regulations of Officials of the EEC and the EAEC, thereby depriving the staff of the ECSC of rights and opportunities granted to other European officials . Such a breach of the principle of equality would be incompatible with the fundamental principles of Community law .
2 . Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC requires the Member States to adopt all the measures necessary for its implementation and therefore precluded, from its entry into force on 1 January 1962, the application of national legislation under which a Community official, who had been affiliated to the social security scheme of that Member State, was obliged to surrender definitively the pension rights which he had previously acquired under the national scheme in return for the surrender value of those pension rights limited to his own contributions, without having the option of maintaining those pension rights or having them transferred to the Community scheme .

In Case 130/87
REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour de cassation of the Grand Duchy of Luxembourg for a preliminary ruling in the action pending before that court between
Franssois Retter, an official of the Commission, residing in Brussels,
and
Caisse de pensionps des employés privés ( Pension fund for private employees ), Luxembourg
on the interpretation of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities,
THE COURT ( Sixth Chamber )
composed of : T . Koopmans, President of Chamber, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler and M . Díez de Velasco, Judges,
Advocate General : M . Darmon
Registrar : D . Louterman, Administrator, and H . A . Ruehl, Principal Administrator, after the reopening of the oral procedure,
after considering the observations submitted on behalf of
F . Retter, by G . Margue, avocat,
the Caisse de pension des employés privés, by F . Entringer, avocat,
the Luxembourg Government, by G . Schroeder, acting as Agent,
the United Kingdom, by S . J . Hay, of the Treasury Solicitor' s Department, acting as Agent,
the Commission of the European Communities, by H . Étienne, acting as Agent,
having regard to the Report for the Hearing and further to the hearings on 3 May and 15 December 1988,
after hearing the Opinion of the Advocate General delivered at the sitting on 5 July 1988 and, following the reopening of the oral procedure, at the sitting on 24 January 1989,
gives the following
Judgment

1 By judgment of 9 April 1987, which was received at the Court on 21 April 1987, the Cour de cassation ( Court of Cassation ) of the Grand Duchy of Luxembourg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities .
2 That question arose in proceedings between François Retter, a Commission official, the plaintiff in the main proceedings, and the Caisse de pension des employés privés ( Pension fund for private employees ), Luxembourg, the defendant in the main proceedings ( hereinafter referred to as "the Fund ").
3 Before being established on 5 February 1962 as an official of the High Authority of the ECSC, Mr Retter was employed in the private sector in Luxembourg and acquired pension rights with the Fund on the basis of 61 months of contributions . On 1 April 1964, he requested the Fund to reimburse him half of all the contributions standing to his credit, which amounted at that time to LFR 58 538 . As a result of that request, he received the sum of LFR 29 269 .
4 The Luxembourg legislation in force in 1964 did not provide for the possibility of transferring to the Community pension scheme of pension rights acquired under the national scheme . The provisions of that legislation provided only for repayment of pension rights to insured persons who, after having paid contributions for at least 30 months, definitively left the Luxembourg insurance scheme without receiving a pension . According to the provisions of the same legislation, the application for repayment had to be submitted within two years from the date on which the insured person ceased to be a member of the Luxembourg social insurance scheme and an insured person whose contributions had been repaid in that manner no longer had any right to benefits from the Fund .
5 Following the adoption of the Law of 14 March 1979 amending the Luxembourg legislation in order to permit persons who had become officials of the Communities to transfer their pension rights as provided for under the Staff Regulations of Officials, the plaintiff applied to the Fund on 4 February 1983 to annul the arrangement which had taken place in 1964 and to revive his pension rights, in return for which he would repay, with interest, the amount paid to him in 1964 . That application was refused by the Fund on 15 March 1983 on the ground that, according to Article 65 of the Law of 1979, persons who had obtained repayment of pension rights were deemed to have lost any right to benefits from the Fund and could not therefore take advantage of the new rules which had been adopted .
6 The dispute was brought before the courts having jurisdiction in the matter and the Cour de cassation ultimately decided to stay proceedings until the Court of Justice had given a preliminary ruling on the following question :
"Is Article 11(2 ) of Annex VIII to the Staff Regulations of Officials and Other Servants of the European Communities to be interpreted as meaning that from its entry into force on 1 January 1962 it conferred on ECSC officials a direct right to have their pension rights transferred from a national pension scheme to the Community pension scheme, subject to the conditions set out in the aforesaid Article 11(2 ), and may that Community provision therefore be considered to have been integrated as from 1 January 1962, so far as the right to call for such a transfer is concerned, into national legislation on pension schemes and in particular into the ancillary legislation on the coordination of different pension schemes?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the national and Community provisions at issue, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
8 It should be emphasized at the outset that the dispute which is the subject of the main proceedings originated in an arrangement concerning the repayment of pension rights made by the Fund to Mr Retter in 1964 . At that time, the plaintiff was an official of the High Authority of the ECSC and, as such, was subject to the provisions of the regulation laying down Staff Regulations of Officials and the Conditions of Employment of Other Servants of the Community, adopted by the Committee of Presidents of the ECSC and which entered into force on 1 January 1962 . The interpretation sought by the national court thus refers to the Staff Regulations of Officials of the ECSC .
9 Article 11(2 ) of Annex VIII to the said Staff Regulations of 1962 corresponds to Article 11(2 ) of Annex VIII to the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, laid down by Regulations Nos 31 ( EEC ) and 11 ( EAEC ) of the Councils of 18 December 1961 ( Journal officiel 1962, 45, p . 1385 ) which also entered into force on 1 January 1962 . All of those provisions were carried over in identical terms into Article 11(2 ) of Annex VIII to Regulation ( EEC, Euratom, ECSC ) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission ( Official Journal, English Special Edition 1968 ( I ), p . 30 ).
10 Unlike the Staff Regulations of Officials of the EEC and the EAEC, the Staff Regulations of Officials of the ECSC were never published in the Official Journal . Any consequences that might flow from that fact have been the subject of observations by the parties when the oral procedure was reopened by order of the Court ( Sixth Chamber ), after hearing the Advocate General, on 4 October 1988 .
11 In order to determine whether Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC granted officials of that Community a right to transfer their pension rights acquired under a national scheme to the corresponding Community scheme, with effect from the entry into force of those regulations on 1 January 1962, it must be considered whether that provision has effects such that it may be relied on as against the legislation of a Member State which, at the material time, excluded not merely a transfer of pension rights but also a maintenance of those rights under the national scheme . In order to provide the national court with a helpful reply, the legal context in which the Staff Regulations of Officials of the ECSC of 1962 was adopted and the scope of the measures concerning the Community civil service adopted by the Committee of Presidents must be considered .
12 In regard to the context in which the Staff Regulations of Officials of the ECSC was adopted, it should be pointed out that under Article 78(3 ) of the ECSC Treaty and the third paragraph of Article 7 of the Convention on the Transitional Provisions provided for in Article 85 of the said Treaty, the power to lay down the Staff Regulations of Officials was granted to the committee composed, under the presidency of the President of the Court of Justice, of the Presidents of the High Authority, the Common Assembly and the Special Council of Ministers . Unlike the third paragraph of Article 15 of the ECSC Treaty, that provision does not provide that measures adopted by that committee take effect only when published .
13 In the context of the ECSC Treaty, the attribution to the Committee of Presidents of rule-making powers implied the possibility of creating rights in favour of individuals . The existence of such rights, granted in the interest of the functioning and independence of the Community administration, was pointed out by the Court in its judgment of 16 December 1980 in Case 6/60 Humblet v Belgium (( 1960 )) ECR 559 . It can be seen from that judgment, in which the Court specified the Member States' obligations under the Protocol on the Privileges and Immunities of the European Coal and Steel Community, annexed to the ECSC Treaty, that the Community legal order may create individual rights in favour of officials in matters related to their status upon which they may rely against the authorities of the Member States .
14 In that regard, it should be noted that the regulations laid down by the Committee of Presidents contain, in addition to rules governing conditions of service, provisions concerning the relationship of officials with the social security authorities of the Member State in which they were previously affiliated .
15 With regard to the legal nature of the rules under those regulations, it should be pointed out, as the Court held in its judgment of 20 October 1981 in Case 137/80 Commission v Belgium (( 1981 )) ECR 2393, that the possibility of transferring pension rights is intended to produce legal effects vis-à-vis the Member States . Article 11(2 ) of Annex VIII to the Staff Regulations is intended to ensure that Community officials may retain the rights which they have acquired in their own State even though they may be limited, or even conditional or future, or insufficient to give rise to the immediate award of a pension, and that account may be taken of those rights by the pension scheme to which the persons concerned are affiliated at the end of their careers, in this case the Community scheme .
16 The purpose of the preparatory work carried out by the Councils of the EEC and the EAEC and the Committee of Presidents of the ECSC in 1961 concerning the drawing-up of new regulations for the staff of the Community administration was to lay down a set of uniform rules . The minutes of the meetings of the Committee of Presidents reveal close cooperation between that body and the Councils . In the context of those consultations, the Staff Regulations of Officials of the ECSC served as a model for the EEC and EAEC Councils .
17 Having regard to that legislative context, it should be pointed out that the unity of the three Communities in regard to their Staff Regulations, pointed out in the judgment of 15 July 1960 in Joined Cases 27 and 39/59 Campolongo v High Authority (( 1960 )) ECR 391, would be compromised if the Staff Regulations of Officials of the ECSC were of a lesser consequence in law than the Staff Regulations of Officials of the EEC and the EAEC, thereby depriving the staff of the ECSC of rights and opportunities granted to other European officials . Such a breach of the principle of equality would be incompatible with the fundamental principles of Community law .
18 That unity in the matter of staff regulations, notwithstanding the diversity of the procedures by which the various authorities adopted them and the rules concerning their publication, finds confirmation in Article 83(3 ) of the three sets of Staff Regulations of Officials which entered into force on 1 January 1962 . According to that provision, the procedure for calculation of the pensions of officials of the European Coal and Steel Community and the apportionment of the cost of such pensions between the European Coal and Steel Community pension fund and the budgets of the European Economic Community and the European Atomic Energy Community were to be settled by a regulation made by agreement between the Councils and the Committee of Presidents of the ECSC . That procedure was laid down, with effect retroactively to 1 January 1962, in Regulations Nos 5/63/EAEC and 100/63/EEC of 10 July 1963 ( Journal officiel 130, p . 2301 ) the recitals in the preambles to which refer to the Staff Regulations of Officials of the three Communities . In the same legislative context, the Councils of the EEC and the EAEC and the Committee of Presidents of the ECSC adopted a decision of 10 July 1963 designating the institution responsible for paying the benefits provided for under the pension scheme ( Journal officiel 130, p . 2303 ) without drawing any distinction between the three sets of Staff Regulations of Officials .
19 It should be added that after the entry into force of the three sets of Staff Regulations, the European Assembly, during a debate on a proposal from the Councils concerning a regulation amending Article 109 of the Staff Regulations of Officials of the EEC and the EAEC, adopted a resolution calling upon the Committee of Presidents of the ECSC also to amend the Staff Regulations of Officials of that Community ( Journal officiel 1962, 116, p . 2673 ). The Committee of Presidents gave effect to that resolution by amending the same provision in the Staff Regulations of Officials of the ECSC .
20 It should also be pointed out that the existence of Staff Regulations for Officials of the ECSC was also confirmed by the Rules of Procedure of the Court in regard to disputes covered by Article 58 of the Staff Regulations of Officials of the ECSC of 21 February 1957 ( Journal officiel 8, p . 110 ) and by the General Regulation on the organization of the services of the High Authority of 20 April 1960 ( Journal officiel 30, p . 747 ) the second paragraph of Article 6 of which refers to the Staff Regulations of Officials of the ECSC .
21 It follows from the foregoing considerations that the circumstances in which the Staff Regulations of Officials of the ECSC were adopted in 1962 cannot have the effect of depriving the provisions of those regulations of the legal effects indicated above, which are identical to those of the Staff Regulations of Officials of the other Communities .
22 Under those circumstances, and having regard to the provisions of the national legislation at issue in the main proceedings, it must be held, as the Court emphasized in its judgment of 20 October 1981, cited above, that Article 11(2 ) of Annex VIII to the Staff Regulations requires the Member States to adopt all the measures necessary for its implementation and therefore precludes the application of national legislation which does not permit the transfer of pension rights and amounts to depriving officials of a right granted to them by the Staff Regulations .
23 The reply to the question referred to the Court by the Cour de cassation of the Grand Duchy of Luxembourg must therefore be that Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC must be interpreted as precluding, from its entry into force on 1 January 1962, the application of national legislation under which a Community official, who had been affiliated to the social security scheme of that Member State, was obliged to surrender definitively the pension rights which he had previously acquired under the national scheme in return for the surrender value of those pension rights limited to his own contributions, without having the option of maintaining those pension rights or having them transferred to the Community scheme .

Costs
24 The costs incurred by the Government of the Grand Duchy of Luxembourg, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,
THE COURT ( Sixth Chamber ),
in answer to the question referred to it by the Cour de cassation of the Grand Duchy of Luxembourg, by judgment of 9 April 1987, hereby rules :
Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the ECSC must be interpreted as precluding, from its entry into force on 1 January 1962, the application of national legislation whereby a Community official, who had been affiliated to the social security scheme of the Member State, was obliged to surrender definitively the pension rights which he had previously acquired under the national scheme in return for the surrender value of those pension rights limited to his own contributions, without having the option of maintaining those pension rights or having them transferred to the Community scheme .