Report for the Hearing delivered in Case C-137/88
I — Summary of the facts and procedure
1. The applicants, who are Commission officials, contributed to a Belgian pension fund for employees and/or self-employed persons before entering the service of the Commission.
2. Under Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities:
3. By judgment of 20 October 1981 in Case 137/80 Commission v Belgium [1981] ECR 2393, the Court held that the Kingdom of Belgium, by refusing to adopt the measures necessary for the transfer to the Community pension scheme of sums due to be repaid under the Belgian pension scheme or the actuarial equivalent of retirement pension rights acquired thereunder, as provided for by Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities, has failed to fulfil its obligations under the EEC Treaty.
4. Faced with a refusal on the part of the Belgian authorities to give effect to the judgment in Case 137/80, the Commission brought a further action before the Court (Case 383/85) for a declaration that Belgium had not implemented that judgment and had thus failed to fulfil its obligations under Article 171 of the EEC Treaty.
5. A former official of the Court of Auditors, Mr Michel, brought an action before the national courts against the Belgian State in order to settle the matter of the transfer of his pension rights acquired under the national scheme. The Commission granted financial and technical assistance to that former official.
6. The Belgian State persisted in its failure to fulfil its obligations and more than 800 officials and pensioners submitted a request under Article 90(1) of the Staff Regulations at the beginning of 1987 with a view to obtaining from the Commission financial and technical assistance to bring such proceedings before the Belgian courts and tribunals and, if necessary, before the Court of Justice of the European Communities, as are appropriate to settle the question of the transfer of pension rights ... acquired under a Belgian pension scheme.
7. By decision of 13 July 1987, notified individually to each person concerned, the appointing authority rejected those requests. On 14 October 1987, the applicants submitted a complaint under Article 90(2) of the Staff Regulations against that rejection. The Commission rejected those complaints by express decision notified to the applicants on 4 May 1988.
8. In those circumstances, the applicants brought the present action against the decision of 13 July 1987 and the express decision of 4 May 1988.
II — Written procedure and conclusions of the parties
1. The application lodged by Mrs Schneemann and others was received at the Court Registry on 17 May 1988.
2. During the course of the procedure, 66 applicants discontinued their actions. The Court (Second Chamber), by order of 14 February 1989, removed the names of those applicants from the list of applicants in Case C-137/88.
3. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry. It also put a number of questions to the Commission and to the Kingdom of Belgium. The answers were received within the period prescribed.
4. The applicants claim that the Court should:
5. The Commission, the defendant, claims that the Court should:
III — Submissions and arguments of the parties
The applicants make the following two submissions in support of their action:
The first submission: infringement of Article 24 of the Staff Regulations
1. The applicants claim that the conditions for the application of Article 24 of the Staff Regulations are satisfied. They have suffered by reason of [their] position or duties a flagrant breach by the Belgian State of the rights conferred on them by Article 11(2) of Annex VIII to the Staff Regulations. They refer to the grounds of the judgment of the Court in Case 137/80, cited above, which upholds the existence of subjective rights vested in officials by virtue of that provision and the corresponding obligation of all Member States to take the necessary measures to give effect thereto. The flagrant infringement of which they are the victims is sufficient to establish their direct and immediate interest in ensuring that the Belgian State complies with the requirements of the Staff Regulations.
2. The applicants maintain that the Belgian State's persistent failure to fulfil its obligations — despite a first judgment against it on 20 October 1981 and the commencement of fresh proceedings against it under Article 169 of the EEC Treaty in view of its failure to comply with that judgment, and notwithstanding all the approaches made by the Commission out of court — shows that only an enforceable decision obtained from the national courts will be capable of bringing about the transfer of pension rights, thus restoring legality.
3. Relying on the theory of direct effect, the applicants argue that it is the power and the duty of the Belgian courts to apply the Staff Regulations. The Belgian courts, hearing an action for the application of Article 11(2) of Annex VIII to the Staff Regulations, could not be frustrated in the discharge of their duties by inaction on the part of the legislature.
4. The applicants also claim that they have an interest in immediately bringing an action before the Belgian courts, to ensure that their rights do not become time-barred. In that connection they refer to the judgment of 2 February 1988 in Case 24/86 Blaizot [1988] ECR 379.
5. The applicants maintain that the immediacy of their interest does not depend on the proximity of the official retirement age, as is apparent from Articles 9, 10 and 11(1) of Annex VIII to the Staff Regulations.
6. The defendant states by way of preliminary that the nature and scope of the duty to assist officials are such that it constitutes an obligation to use all due diligence, not an obligation to achieve a specific result. In the present case the desired result, namely the adoption of a formal law transferring previously acquired pension rights to the European Communities, is clearly not within the powers of the Commission. The defendant distinguishes the concept of assistance from the civil law concept of solidarity and concludes that the obligation incumbent upon the Commission cannot be equivalent to that incumbent upon Belgium. Moreover, the choice of the appropriate measures to take in order to discharge its duty towards officials is a matter entirely in the discretion of the Commission, as the Court has consistently held (judgments of 18 October 1976 in Case 128/75 M. N. v Commission [1976] ECR 1567, and of 11 July 1974 in Case 53/72 Guillot v Commission [1974] ECR 791).
7. The Commission then lists the action it has taken vis-à-vis the Belgian authorities — principally on the basis of Article 169 of the EEC Treaty — and, pursuant to Article 24 of the Staff Regulations, in the form of technical and financial assistance in relation to an individual action brought by a former official before the Belgian courts. Despite the persistent inaction of the Belgian State, those efforts have not been in vain, as is evidenced by the text of a draft bill organisant le transfert des droits à pension en faveur des fonctionnaires en service auprès d'une institution de droit international public (laying down arrangements for the transfer of pension rights of officials in service in an institution set up under public international law). That bill takes account of the Commission's observations concerning a first draft. Moreover, the Commission observes that it has, at the same time, pursued its mission as guardian of the Treaties under Article 155 of the EEC Treaty.
8. The Commission denies that the mere obtaining of an enforceable order from the national courts is capable of legalizing the position by allowing pension rights acquired under the national scheme to be transferred to the Communities.
9. Even if, as the Court has stated, a judgment establishing an infringement of the Treaty may provide the basis for liability on the part of a Member State under its own system, in particular towards individuals (judgment of 7 February 1973 in Case 39/72 Commission v Italy [1973] ECR 101), there are grounds for doubting the efficacy of a finding under Belgian law that the Belgian authorities are guilty of inaction. The directly applicable provisions of the Staff Regulations are not self-sufficient, for which reason it is necessary to adopt implementing measures and it is impossible for the pension authorities and the administration to take the place of the legislature, the only authority with powers to lay down the measures necessary for the transfer of pension rights.
10. The defendant then rejects the argument based on the judgment of 2 February 1988 in Case 24/86 Blaizot, cited above, pointing out that the judgment of 20 October 1981 in Case 137/80 Commission v Belgium, cited above, determines a legal situation ab origine which is wholly retroactive as regards the Belgian State.
11. Finally, the Commission contends that it is necessary, in the event of the Court's nevertheless upholding the action, to verify the existence of specific damage of a substantial nature, having regard to the age of the applicants.
The second allegation: infringement of the principle of equality as between officials
1. The applicants consider that the Commission would be in breach of the general principle of equality of treatment as between officials if it did not grant them the assistance which it granted to Mr Michel for his action before the Belgian courts.
2. The Commission contends that Mr Michel's situation in 1985, when he applied for assistance, was different from that of the applicants in 1987. The fact that the administration is already giving financial assistance to a former official for an action against the Belgian State before the Belgian courts is attributable to the desire to increase the pressure brought to bear on the national authorities. That fact makes the institution by other officials of fresh proceedings having the same subject-matter entirely otiose. This difference between Mr Michel's situation and that of the applicants accounts for the Commission's refusal to accede to the applicants' request.
IV — Replies to the questions put by the Court
1. The Court (Second Chamber) put the following question to the Kingdom of Belgium and the Commission:
2. The Kingdom of Belgium replied as follows:
3. The Commission replied as follows:
4. The Court (Second Chamber) then made the following request to the Kingdom of Belgium:
5. The Kingdom of Belgium replied as follows:
6. The Court (Second Chamber) also put the following question to the Commission:
7. The Commission replied as follows: According to information obtained from Mr J.-N. Louis, Counsel for the applicants and also for Mr Michel, the parties to the latter action are waiting for a hearing to be set down.
1 Language of the case: French.