Report for the Hearing delivered in Case 315/85

I — Law and facts

Article 11 (2) of Annex VIII to the Staff Regulations provides:

For persons coming from a contributory scheme Article 18 of the Luxembourg Law of 16 December 1963, as amended by Article 7 of the Law of 14 March 1979, provides :

Apart from points 1 and 2 of Article 1, which took effect from 1 August 1974, the Law of 14 March 1979 according to Article 8 thereof entered into force on the first day of the month following its publication in the Mémorial.

As regards officials of the Luxembourg State who enter the service of the Communities, Article 8 (2) of the Luxembourg Law of 27 August 1977 provides :

By letter dated 25 July 1984 the Luxembourg Government replied that it did not share the Commission's view and that the Law of 14 March 1979 satisfied the obligations under Article 11 (2) of Annex VIII of the Staff Regulations.

On 30 April 1985 the Commission delivered, pursuant to the first paragraph of Article 169 of the EEC Treaty, a reasoned opinion charging it with having failed to fulfil its obligations under the Staff Regulations. Since the Luxembourg Government did not state its position on the reasoned opinion, the Commission, by application dated 15 October 1985, brought an action before the Court.

II — Written procedure and conclusions of the parties

The Commission's application of 15 October 1985 was registered at the Court Registry on 22 October 1985.

By order of 29 April 1986 the Government of the United Kingdom and the Government of the French Republic were allowed to intervene in support of the defendant's conclusions.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

The Commission claims that the Court should:

The Government of the Grand Duchy of Luxembourg contends that the Court should :

II — Submissions and arguments of the parties

1. The Commission, while pointing to the fundamental differences between the two principles and their results, takes the view that under the scheme of the Staff Regulations transfer of the actuarial equivalent is the rule and repayment of contributions is only a special procedure which operates as a safety net. The actuarial equivalent is the only technique for transferring pension rights which guarantees to the official the transfer of his vested rights. On the other hand, repayment of contributions applies only to persons who leave a pension scheme before they have acquired pension rights. Repayment of contributions is far from corresponding always to the pension rights acquired. For example, in the case of a scheme which is adjusted to take account of the increase in income as a result of length of service and which bases the calculation of benefits on the most recent salary, pension rights necessarily differ from the contributions paid at the beginning of the career. As regards the Caisse luxembourgeoise de pension des employés privés (Luxembourg pension fund for private employees, hereinafter referred to as the Caisse luxembourgeoise) contributions would not cover the part of the rights acquired which are financed from other sources such as contributions by the State. In the case of the Grand Duchy of Luxembourg the State and the authorities are responsible for financing the basic pension, adjustment to the general level of salaries, special increases and minimum pension supplements (irrelevant in the present case). According to the Law of 23 May 1984 one-third of contributions is financed by the State.

1 Language of the Case: French.