Report for the Hearing delivered in Case C-37/89

I — Facts and procedure in the main proceedings

1. The plaintiff in the main proceedings was a member of the Paris Bar from 5 December 1967 to 30 June 1984 and affiliated to the Caisse nationale des barreaux français (hereinafter referred to as the Fund), which manages the pension scheme for members of the Bar. That scheme involves, on the one hand, the constitution of a basic retirement pension, the amount of which is determined by the number of years during which the insured person is in practice and, on the other, the constitution, also compulsory, of an additional old-age and survivors' pension, the amount of which is determined on the basis of the number of points acquired during the same period. Since 1 July 1984, Mr Weiser has been an official of the Court of Justice of the European Communities.

2. By letter of 25 September 1985, he applied to the Fund under Article 11(2) of Annex VIII to Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (Official Journal, English Special Edition 1968 (I), p. 30, hereinafter referred to as the Staff Regulations) for the transfer to the Community of his pension rights for the period during which he had paid contributions. That provision is drafted in the following terms:

3. By letter of 8 October 1985, the Fund rejected that request. By decision of 3 October 1986, Mr Weiser's internal administrative appeal of 6 February 1986 was dismissed by the administrative board of the Fund. On 5 December 1986, Mr Weiser brought an action before the tribunal des affaires de sécurité sociale (Social Security Tribunal), Paris, for the annulment of the abovementioned decisions of the Fund and its administrative board and for a declaration that the Fund was bound to pay to the European Communities the actuarial equivalent of the retirement pension entitlement acquired by him both by way of basic retirement pension and by way of supplementary pension for the period from 5 December 1967 to 30 June 1984 or, in the alternative, the sum due to be repaid to him by the Fund on 30 June 1984.

4. By judgment of 14 March 1984, the tribunal des affaires de sécurité sociale declined jurisdiction and referred the case to the tribunal d'instance (District Court), Paris. Before the latter court, the Fund argued that Article 11 (2) of Annex VIII to the Staff Regulations did not directly apply to Mr Weiser, since there was no agreement between the French State and the Communities. Furthermore, that provision laid down no rules on the transfer of pension rights arising from work as a self-employed person.

5. The plaintiff replied that under the second paragraph of Article 189 of the EEC Treaty a regulation such as the Staff Regulations of Officials of the European Communities was binding in its entirety and directly applicable in all the Member States. He added that the list set out in Article 11(2) of Annex VIII to the Staff Regulations was not exhaustive, because if it were that would constitute discrimination against self-employed occupations, contrary to the prohibition of discrimination.

6. The tribunal d'instance de Paris, in order to be in a position to rule on that dispute and, in particular, on the question of which occupational groups were entitled to take advantage of the Community provision at issue, referred the following question to the Court of Justice for a preliminary ruling:

7. The order for reference was received at the Court Registry on 16 February 1989.

II — Written observations submitted to the Court

1. The plaintiff in the main proceedings observes that the question submitted by the national court concerns both the validity and the interpretation of Article 11(2) of Annex VIII to the Staff Regulations. He considers that the question may be dealt with in terms of validity because, if the Court were to consider that the contested provision was to be interpreted restrictively and was therefore invalid for infringing the prohibition of discrimination, it would not as a result be totally invalid but invalid only in so far as it did not cover officials -who had previously worked as self-employed persons, and hence a former avocat who had become an official could seek to have it applied to him.

2. The defendant in the main proceedings considers that the question referred to the Court, as it is formulated, concerns the application, not the interpretation, of Community law. With regard to the substance of the case, it points out that Article 11(2) of Annex VIII to the Staff Regulations clearly defines the group of persons entitled to benefit from it. That is a conscious and deliberate choice on the part of the legislature, which did not consider it had to extend that provision to cover Community officials who were formerly self-employed. That limitation of the categories of person to which the contested provision applies is borne out by making a comparison with Article 11(1) of Annex VIII, which provides that, in the event of an official's leaving the service of the Communities, only officials entering the service of a government administration or a national or international organization are entitled to have their pension rights transferred, and therefore excludes not only persons intending to work on a self-employed basis, but also those entering the private sector.

3. The French Government argues that the Staff Regulations contain an exhaustive list of the cases in which the transfer of pension rights is required of old-age insurance institutions, both national, in regard to the transfer of the rights at issue, and Community, in regard to the acceptance of those rights and the consequent modification of the applicant's pension rights under the Staff Regulations. As far as a person becoming an official of the Communities is concerned, Article 11(2) of Annex VIII to the Staff Regulations covers only employment in a government administration, a national or international organization or an undertaking. That provision therefore does not appear to cover Community officials previously engaged in self-employed activities and the rules of professional conduct of the Bar do not permit its members to work as employed persons.

4. The Commission points out in limine that the terms used in Article 11(2) of Annex VIII to the Staff Regulations are clear and precise. In its view, that provision undoubtedly covers an employment relationship or, in general, wage- or salaryearners or officials, but it is difficult to regard it as applying to self-employed persons. However, it argues that such an interpretation of the provision cannot be accepted because it would mean that, owing simply to the nature of their occupational activity before they joined the Communities, a significant group of Community officials would be deprived of a right guaranteed by the Staff Regulations and designed to provide continuous and complete social protection.

III — Oral Procedure

At the hearing on 30 January 1990, the Council also gave its views on this case.

The Council considers that account must be taken of the context and objectives of the contested provision. A literal meaning cannot be given to the terms of Article 11 (2) of Annex VIII to the Staff Regulations. In the Council's view, the terms of the provision in question are not completely clear. The French terms administration and organisation do not have a precise meaning. In the eight other languages of the Community, the definitions used are also wide and varied. The Council therefore considers that the terms employed in Article 11(2) of Annex VIII to the Staff Regulations cannot be applied literally and that the provision must be interpreted in the light of its aim.

The Council explains that pension rights attach to persons and must be able to follow them when they change their occupation or job. It would be too restrictive to interpret Article 11(2) of Annex VIII to the Staff Regulations in such a way as to exclude many categories of persons, which would have a completely negative effect on the European Communities' ability to recruit officials.

According to the Council, it is plain that the Community legislature did not intend to discriminate between different categories of official. On the contrary, it intended that there should be a right to transfer all pension rights which are capable of being transferred. To interpret the provision at issue otherwise would be tantamount to authorizing a difference in treatment as between officials.

1 Language of the case: French.