Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. Pursuant to Article 11 (2) of Annex VIII to the Staff Regulations, a person who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking shall have the right on becoming established with that Community to pay to it either:

2. In 1980 Mr Fernand Watgen, a Luxembourg national employed by the European Parliament, asked the Luxembourg Caisse de pension des employés privés to transfer to the Community pension scheme the actuarial equivalent of the rights which he had acquired up to that time. He received no reply for four years, since the Caisse de pension had decided to await the outcome of a dispute between it and another Luxembourg official of the European Parliament regarding the same matter (see in that connection the preliminary ruling of this Court of 18 March 1982 in Case 212/81 Caisse de pensions des employés privés v Bodson [1982] ECR 1019, which was followed by the judgment of the Luxembourg Cour de cassation of 28 October 1982); when a decision was finally given, Mr Watgen was dissatisfied with it.

3. Let me say right away that in this case an exposition of the arguments of the parties and consideration of their merits would be otiose. The central issue raised in the two questions — whether Article 11 confers upon EEC officials a genuine right of election between the two types of transfer for which it provides — was recently dealt with by the Court in its judgment of 17 December 1987 in Case 315/85 (Commission v Grand Duchy of Luxembourg [1987] ECR 5391), in which I was the Advocate General. In its application, the Commission alleged that the Grand Duchy had failed to fulfil its obligations under Article 11 in so far as its social security legislation — and in particular Article 18 of the Law of 16 December 1963 to which I referred earlier — did not grant nationals who leave private employment and become Community officials the right to opt for the transfer of the actuarial equivalent of pension rights.

4. In the light of those statements I suggest that the Court should give the following answer to the questions submitted by order of 1 March 1985 by the Conseil supérieur des assurances sociales in the proceedings by Fernand Watgen against the Caisse de pension des employés privés, Luxembourg:

1 Translated from the Italian.