Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This Opinion is concerned with the first reference for a preliminary ruling submitted by a Spanish court. In proceedings between Fernando Roberto Giménez Zaera and the Instituto Nacional de la Seguridad Social y Tesorería General de la Seguridad Social (National Social Security Institute and General Social Security Fund), the Tribunal Central de Trabajo (Central Labour Court) asks the Court for an interpretation of Articles 2, 117 and 118 of the EEC Treaty. The court wishes to know essentially whether by virtue of those provisions the Member States must refrain from adopting rules which prohibit the overlapping of a retirement pension with the holding of a post in the public service.

2. Primarily, the Spanish Government expressed doubts as to whether the Court has jurisdiction to give a ruling on the problems raised by the national court and suggested that the Court should therefore not give a ruling. According to its Agent, the interpretation which the Court is requested to givehas no bearing on the solution of the dispute pending before the national court, because the administrative measure whose validity it is requested to decide precedes the date on which the Kingdom of Spain acceded to the Community. In other words, Community law is not applicable ratione temporis to the facts of the main action.

3. It must be concluded that the reference is admissible. However, I agree with the Commission that the questions put by the national court are inadequate (inasmuch as they do not expressly state the Community rules to be interpreted) and too wide. It is therefore appropriate to rearrange them into a single question, without departing from the considerations set out in the order for reference: Do Articles 2, 117 and 118 of the Treaty prevent the legislature of a Member State from introducing a provision prohibiting the overlapping of social security benefits with other sources of income, in particular a retirement pension with the remuneration paid to a person occupying a post in the public service, thereby reducing the level of social protection of the worker?

4. In the order for reference, the Tribunal Central de Trabajo advances an interpretation of Articles 2, 117 and 118 to the effect that the Member States cannot take action which adversely affects the level of social protection of workers. It states that those provisions set forth values, such as the accelerated raising of the standard of living and an improved standard of living for workers, so as to make possible their upward harmonization, which constitute principles of Community public policy and therefore cannot be derogated from. It follows that, by signing the Treaty, the Member States have undertaken not to withdraw rights guaranteed at a given moment under their social security systems and not to reduce the level of protection in quantitative or qualitative terms. In particular, the Member States are subject to: (a) a prohibition on the adoption of laws which reduce the level of social benefits existing when the Treaty entered into force in the State in question; (b) an obligation to accelerate the improvement in the standard of living for workers, in particular by harmonizing upwards the amounts of such benefits.

5. In short, Articles 2, 117 and 118 do not lay down the prohibitions and obligations referred to by the Tribunal Central de Trabajo. According to the Commission and the Spanish Government, this conclusion is confirmed by at least four provisions of secondary Community legislation.

6. On the basis of all the considerations set out above, I propose that the Court should answer the questions referred to it for a preliminary ruling by the Tribunal Central de Trabajo by order of 21 March 1986 in the case pending before that court between Fernando Roberto Giménez Zaera and the Instituto Nacional de la Seguridad Social y Tesorería General de la Seguridad Social as follows:

1 Translated from the Italian.