Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By application lodged at the Court Registry on 22 October 1985, the Commission of the European Communities requested the Court to declare that, by applying Article 11 (2) of Annex VIII to the Staff Regulations of Officials only in part, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EEC Treaty.

2. I would recall that in Luxembourg there are two social security schemes which differ substantially with regard to the conditions governing entitlement to a pension, the financing procedures and the authorities responsible for administering them: the non-contributory scheme, which in practice is restricted to civil servants, and the contributory scheme for employees in the private sector. In the light of that situation and in order to enable the right conferred by Article 11 (2) of Annex VIII to be exercised, the Luxembourg legislature enacted two distinct provisions.

3. France and the United Kingdom have intervened in the proceedings in support of the Grand Duchy of Luxembourg. All three governments contend that Article 11 (2) confers on Community officials the right to choose between maintaining their pension rights under the provisions of national law applicable to them and transferring those rights to the Community scheme. However, they consider that Article 11 (2) does not authorize Community officials to select the method of transfer, which must be carried out in accordance with the criteria laid down by each Member State in connection with the pension scheme to which the official concerned was affiliated.

4. In the light of the aforesaid considerations, I suggest that the Court dismiss the action brought by the Commission of the European Communities against the Grand Duchy of Luxembourg and, under Article 69 (2) of the Rules of Procedure, order the applicant to pay the costs.

1 Translated from the Iulian.