Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. On 20 October 1981 the Court gave judgment in the action brought in Case 137/80 by the Commission of the European Communities against the Kingdom of Belgium. It held that by refusing to adopt the measures necessary for the transfer to the Community pension scheme of sums due to be repaid in respect of or the actuarial equivalent of retirement pension rights acquired under the Belgian pension scheme, as provided for by Article 11(2) of Annex VIII to the Staff Regulations Belgium had failed to fulfil its obligations under the EEC Treaty (Commission v Belgium [1981] ECR 2393, paragraph 20).

2. In the proceedings, the Belgian Government has not denied its failure to fulfil the obligations in question, but has justified its conduct on the ground that a legitimate interpretative doubt was raised by the national legislature. It points out, in particular, that the Belgian social security system has never made any provision for the transfer of pension rights. Accordingly, in order to confer the right to effect such transfers on Belgian citizens employed by the Communities it was necessary to lay down specific rules which would inter alia have to take account of the different pension schemes existing in Belgium. To that end, in June 1985 the Belgian Government submitted to Parliament a draft law, the text of which was submitted to the Commission for its comments.

3. Those arguments, some of which had already been put forward by the Belgian Government in Case 137/80, cannot be accepted. I would recall that, as the Court has consistently held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations resulting from a Community regulation (most recently in its judgment of 20 March 1986 in Case 72/85 Commission v Netherlands [1986] ECR 1219, at paragraph 19). It follows that interpretative doubts may not be pleaded either. In fact, as such doubts are a subjective factor, they constitute even less of an obstacle to the implementation of the provision in question than the factors listed by the Court.

4. In those circumstances it must be held that, by failing to comply with the judgment of the Court of 20 October 1981 in Case 137/80, the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty. I therefore suggest that the Court uphold the application submitted by the Commission of the European Communities and, pursuant to Article 69(3) of the Rules of Procedure, order the defendant to pay the costs.

1 Original language: Italian.