Report for the Hearing delivered in Case 129/87

I — Facts and written procedure

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

Article 18 of the Luxembourg Law of 16 December 1963, as amended by Article 7 of the Law of 14 March 1979, provides as follows :

The plaintiff in the main proceedings has been an established official in the European Parliament since 1 April 1981. Prior to her establishment she had worked between 1973 and 1980 in the private sector in Luxembourg and had acquired pension rights through the defendant in the main proceedings, the Caisse de pension des employés privés (Pension fund for private employees, hereinafter referred to as the Fund).

The plaintiff in the main proceedings made known her wish to have her pension rights transferred from the Luxembourg pension scheme to the Community pension scheme. On 31 October 1981 the administration of the European Parliament requested the Fund to inform it of the exact sum of the contributions to be transferred. On 20 November 1981 the administration of the Parliament received the statement of the sum due and on 24 November 1981 it passed on this statement to the plaintiff in the main proceedings. On the same day the plaintiff sent a formal application to the administration of the Parliament for the transfer to the Community pension scheme of contributions paid on her account stemming from her employment in the private sector in Luxembourg. These contributions amounted to BFR 618192 (value on 31 December 1981). However, the administration of the Parliament did not pass on this request to the Fund until 27 May 1982.

The transfer request was refused by the Fund on 2 June 1982 on the ground that it had been made more than one year after the plaintiff in the main proceedings had been established and was therefore out of time.

Subsequently the administration of the Parliament attempted several times to persuade the Fund to reconsider that decision. However, the Fund refused to reconsider its refusal to transfer the plaintiff's contributions, most recently by formal decision of 12 November 1982.

The plaintiff in the main proceedings appealed against that decision to the conseil arbitral des assurances sociales (Social Security Arbitration Board). On 22 April 1983 the Board held that she had not forfeited her transfer rights. The Fund appealed against that judgment to the conseil supérieur des assurances sociales (Social Security Appeals Board), which, on 14 November 1984, quashed the Fund's decision on technical grounds. Thereupon, the Fund made a fresh decision refusing to transfer the contributions. The plaintiff in the main proceedings appealed against that decision of the Fund, but her appeal was dismissed by the conseil arbitral des assurances sociales on 21 May 1985. The conseil supérieur des assurances sociales confirmed that decision by a judgment of 16 April 1986, which the plaintiff in the main proceedings has challenged before the Cour de cassation of the Grand Duchy of Luxembourg.

By order of 9 April 1987 the Cour de cassation decided to stay the proceedings and to refer to the Court of Justice the following question for a preliminary ruling under Article 177 of the EEC Treaty:

The order of the Cour de cassation making the reference was entered on the Court Register on 21 April 1987.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the plaintiff in the main proceedings, represented by Alex Bonn, of the Luxembourg Bar, by the defendant in the main proceedings, represented by Fernand Entringer, avocat avoué in Luxembourg, by the Commission of the European Communities, represented by its Principal Legal Adviser, Henri Étienne, acting as Agent, by the Government of the Grand Duchy of Luxembourg, represented by G. Schroeder, of the Ministry of Social Security, and by the United Kingdom, represented by S. J. Hay of the Treasury Solicitor's Department.

Having heard 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. By decision of 3 February 1988 the Court assigned the case to the Sixth Chamber.

II — Written observations submitted to the Court

The plaintiff in the main proceedings submits that the Luxembourg legislature is not entitled to impose a time-limit on the exercise of the right to transfer conferred by Article 11 (2) of Annex VIII to the Staff Regulations and to penalize failure to observe that limit by forfeiture of that right. The imposition of such a limit and the corresponding forfeiture are contrary to that Community provision because it deprives the official concerned of an asset. Since reimbursement of contributions paid covers only the proportion of contributions paid by the employee the official loses the proportion of contributions paid by the employer which, none the less, constitute part of his acquired rights. No administrative concern can justify such a time-limit.

The plaintiff in the main proceedings stresses also that the letter of 30 October 1981 from the administration of the Parliament to the Fund, the purpose of which was to discover the exact sum of contributions to be transferred, should have been considered by the Luxembourg body as being a necessary preliminary to a formal request for transfer. In any event the plaintiff in the main proceedings had made her formal request on 24 November 1981 and thus the date when that request was passed on to the Fund is irrelevant.

The plaintiff in the main proceedings therefore suggests that the question referred by the Cour de cassation should be answered in the affirmative.

The Fund considers that the Luxembourg legislature was entitled, when implementing Article 11 (2) of Annex VIII to the Staff Regulations, to provide for a time-limit for the lodging of requests for the transfer of pension rights. Since there are no Community rules concerning time-limits it is for national law to determine such detailed rules for the application of Community law.

Consequently the Fund suggests that the Court should rule that Article 11 (2) of Annex VIII to the Staff Regulations does not preclude a Member State, when enacting implementing measures in domestic law to give effect to that Community provision, from resticting the exercise by the official of his rights by imposing a time-limit on the lodging of that request for the transfer and by penalizing noncompliance with that time-limit by forfeiture of his rights.

The Fund's argument is in principle supported by the Commission, which stresses the importance of the time-limit concerned for reasons of good administration of insurance schemes. The Commission points out that the purpose of a time-limit such as that provided by the Luxembourg national law is to dispel uncertainty concerning the situation of an insured person who has changed his or her pension scheme. Similarly, the justification for such a time-limit is to be found in the wording used in Article 11 of Annex VIII to the Staff Regulations which demonstrates the wish of the Community legislature that the officials concerned should make a rapid decision in the matter.

However, since the purpose of the provision is to protect the bodies concerned against indecision by an official, in cases when the official has unambiguously expressed his preference and his decision has not been brought to the notice of the insurance institution concerned for reasons over which the official has had no control, he should be regarded as having validly expressed his choice. In the present case the plaintiff in the main proceedings certainly expressed a choice within the time-limit provided for by the Luxembourg law. It should not be held against the applicant that her choice was not brought to the Fund's attention until more than one year after she had been established, since she had clearly expressed her wish to the administration of the Parliament that her pension rights should be transferred to the Community scheme. In view of the close cooperation between the Community and national authorities in the matter, administrative tardiness should not result in the official's being deprived of her rights under the Staff Regulations.

The Commission therefore suggests that the question referred should be answered as follows :

The Government of the Grand Duchy of Luxembourg submits that the national legislature has the power to fix the specific rules to effect the transfer of pension rights and thus the time-limit is compatible with Article 11 (2) of Annex VIII to the Staff Regulations.

The United Kingdom first distinguishes between the forfeiture of the right to request a transfer of pension rights and forfeiture of rights already acquired within a national scheme, and states that its observations concern solely the right to transfer, the pension rights themselves being preserved within the national scheme.

The United Kingdom considers that Member States are entitled to provide for a time-limit during which requests for transfer must be made although it is not permissible to fix this time-limit in such a manner as to render impossible the exercise of the choice conferred by Article 11 (2) of Annex VIII to the Staff Regulations.

As regards the Luxembourg legislation, the United Kingdom takes the view that a time-limit of one year is consistent with the purpose of that Community provision. Such a time-limit is appropriate to avoid administrative difficulties in the management of a pension scheme. The United Kingdom therefore suggests that the Court should answer the question referred to it in the negative.

1 Language of the Case: French.