Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Dr Maria Sommerlatte is a retired official of the Commission of the European Communities who as such is paid a Community pension from which 1.35% is deducted as her contribution to the Community sickness fund. In addition, she is entitled to a German old-age pension by virtue of her occupation before taking up her duties at the Commission. As she is therefore covered by a German sickness insurance scheme she pays 6.05% of that pension as a contribution to the Barmer Ersatzkrankenkasse, hereinafter referred to the German fund).

2. On 2 March 1983, pursuant to the aforementioned provisions, the German fund calculated Dr Sommerlatte's contribution on the basis of her income from the Community pension fund, the amount of which she had disclosed to the German fund at its request. Consequently, from 1 January 1983 Mrs Sommerlatte has been obliged to pay a supplementary contribution of approximately DM 140 per month.

3. It is clear from the documents before the Court that since July 1982 the Commission has been dealing with problems raised by the German legislation at the behest of the Ex-Officials Association and of certain pensioners.

4. In that context the applicant complains that the Commission

5. The Commission states as a preliminary point that, in accordance with the Court's judgment of 15 March 1984 in Case 28/83 Forcheri v Commission [1984] ECR 1425, the question whether the Federal Republic of Germany has failed to fulfil one of its obligations under the Treaty or whether or not the Commission should immediately have instituted the procedure under Article 169 cannot be considered in the context of this case.

6. In this case it is not for the Court to rule on the conformity of the German legislation with Community law or, more particularly, to resolve the question whether the compulsory affiliation of an official to the Community sickness insurance scheme excludes any obligation to affiliate to a similar scheme in the Member State of which the official is a national. Such matters would fall to be considered only if the Commission brought an action before the Court under Article 169 of the EEC Treaty for failure by a Member State to fulfil its obligations (Forcheri v Commission, cited above, paragraph 12).

7. The arguments submitted by the Commission do not appear to me to be convincing.

8. The Commission claims that it is not liable because of the applicant's own wrongful act in failing to inform it of her particular situation whereas the second paragraph of Article 23 of the Staff Regulations requires that

9. I am therefore of the opinion that the Court should:

1 Translated from the French.