Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The Commission has brought an action before the Court against the Kingdom of Belgium under Article 169 of the EEC Treaty for a declaration that it has failed to fulfil its obligations under Article 11 (2) of Annex VIII to the Staff Regulations of Officials (introduced by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968). That provision allows Community officials who before entering the service of the Community worked in a Member State or in the service of an international organization to have transferred by means of a payment to the Communities either the actuarial equivalent of retirement pension rights acquired in the government administration, national or international organization or undertaking by which they were employed or any sums which may be due to them from the pension fund of the government administration, organization or undertaking at the date of their leaving its service. All the Member States, with the exception of Belgium and the Netherlands, have now adopted (or, like Greece, are on the point of adopting) the national provisions needed in order to set up the transfer machinery required. Belgium, on the other hand, has refused outright to do so; it is that refusal which has given rise to this case.

2. The Belgian Government's position is based essentially on the proposition that Article 11 (2) places no obligation on the Member States. In support of that view the defendant does not confine itself to advocating an interpretation of that provision which is different to that adopted by the Commission but puts forward three preliminary arguments according to which :

3. In my view, therefore, the initial objections raised by the Belgian Government do not stand up to critical examination. I may therefore move on to consider the problems raised by the wording of the provision in question and in particular to determine whether it lends itself to the interpretation proposed by the Belgian Government, which maintains that the setting-up of the transfer machinery for retirement pension rights is subject to a prior agreement which each Member State is free either to conclude or not to conclude with the Communities.

4. The representative of the Belgian Government pleaded finally the technical difficulties which would prevent any form of transfer from a Belgian pension scheme to a social security scheme falling outside the scope of Belgian law, such as that of the Communities, even though on the other hand detailed rules for transfer (or at least for taking account for pension purposes of service previously accomplished) in the case of an official who moves from the Belgian administration into employment in the private sector are expressly provided for by the Belgian rules. Expanding his argument, the representative of the Belgian Government referred inter alia to the impossibility of determining, before the date of actual retirement, the value of the rights acquired by an official, haying regard to the fact that the Belgian pension scheme is not based on the payment of contributions by individuals and also to the possibility of legislative amendments either increasing or reducing those rights. However, it does not seem to me that situation constitutes an insurmountable obstacle to the fulfilment of the obligation arising from the provision in question, and, in any event, I would point out that no Member State may plead difficulties relating to its internal legal system in order to avoid complying with Community rules. It is for the Belgian legislature to find a method of enabling the right conferred by the provision in question on Community officials who have previously performed pensionable service under a Belgian scheme to be exercised.

5. For all those reasons, I am of the opinion that the action brought by the Commission against the Kingdom of Belgium by application of 9 June 1980 should succeed. In conclusion, therefore, I propose that the Court should declare that that State, by refusing to adopt the national provisions necessary for giving effect to Article 11 (2) of Annex VIII to the Staff Regulations of Officials of the European Communities, has failed to fulfil its obligations under that provision and under Article 5 of the EEC Treaty. The defendant should therefore be ordered to pay the costs.

1 Translated from the Italian.