1 By order of 27 February 1985, which was received at the Court Registry on 12 March 1985, the Conseil supérieur des assurances sociales du grand-duché de Luxembourg ( Social Security Appeals Tribunal of the Grand Duchy of Luxembourg ) referred to the Court for a preliminary ruling under Article 177 of the Treaty two questions on the interpretation of Article 11 ( 2 ) of Annex VIII to Regulation No 259/68 of the Council of 29 February 1968 laying down Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applying to officials of the Commission ( Official Journal, English Special Edition 1968 ( I ), p . 30 ) ( hereinafter referred to as "the Staff Regulations ").
2 The questions were raised in proceedings brought by Fernand Watgen, an official of the European Parliament, against the Caisse de pension des employés privés ( Pension Fund for Clerical Workers in the Private Sector, Luxembourg, hereinafter referred to as "the Fund ").
3 Before becoming an established official of the European Parliament, Mr Watgen was employed in the private sector in Luxembourg and acquired pension rights under the Fund . On 27 November 1980, he applied for the actuarial equivalent of his pension rights to be transferred to the Community pension scheme . The Fund refused that application on 26 January 1984, but nevertheless transferred to the Community scheme the sums repayable by it, that is to say the sum of the contributions paid by Mr Watgen into the Luxembourg pension scheme together with compound interest at 4 %.
4 Mr Watgen appealed against that decision to the Conseil arbitral des assurances sociales ( Social Security Arbitral Tribunal ), which decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions :
"1 . Are the restrictive rules governing the transfer of the pension rights of persons who become European officials after they have been affiliated to a Luxembourg pension fund laid down in Article 18 ( 3 ) of the Law of 16 December 1963, as amended by Article 7 of the Law of 14 March 1979, compatible with the right of election provided for such persons by Article 11 ( 2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities?
2 . Does that provision of supranational law confer upon European officials the right to choose freely and according to their own interests between the two methods of transfer of rights acquired under national schemes, even if the alternative chosen by the official either is not provided for by the national law to which the national social security institution is subject or is incompatible with the system by which the Luxembourg schemes are financed?"
5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant national and Community provisions, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
6 Where a person affiliated to a Luxembourg contributory scheme becomes affiliated to the pension scheme of an international organization, the Luxembourg legislation provides for the transfer of the sums repayable in respect of the pension rights acquired under the national scheme . Consequently, in the main proceedings the question was raised whether the Member States are also under an obligation, by virtue of Article 11 ( 2 ) of Annex VIII to the Staff Regulations, to transfer the actuarial equivalent of the pension rights from the national pension scheme to the Community scheme .
7 It must be observed at the outset that the problem raised in the two questions submitted to the Court, namely whether, and if so to what extent, the abovementioned provision confers on officials the right to choose between the two methods of transfer envisaged therein, was dealt with in the Court' s judgment of 17 December 1987 in Case 315/85 Commission v Grand Duchy of Luxembourg (( 1987 )) ECR 5391 .
8 In that case the Commission criticized the Grand Duchy of Luxembourg for failing to fulfil its obligations under the abovementioned Community provision by refusing to allow Community officials to opt in all cases for the transfer of the actuarial equivalent of their pension rights .
9 In that case the Court held that, since the purpose of Article 11 ( 2 ) of Annex VIII is to ensure the transition from a national insurance scheme to the Community scheme, the Member States are not required to grant officials the option of choosing between the actuarial equivalent and transfer of the sums repaid .
10 However, the Court emphasized that in cases where the national provisions provide for the mechanism of the actuarial equivalent for the purpose of transferring rights to another national scheme, it is appropriate to provide for the same possibility with regard to the transfer of the rights of Community officials .
11 It must therefore be stated in reply to the question submitted by the Conseil supérieur des assurances sociales that Article 11 ( 2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities must be interpreted as meaning that officials who, before entering the service of the Communities, were affiliated to a contributory pension scheme are entitled to call for the transfer of the actuarial equivalent of retirement pension rights acquired under the national scheme, envisaged in that provision, only where such a transfer is possible under the domestic law to which the national social security institution is subject .
Costs
12 The costs incurred by the Governments of the Grand Duchy of Luxembourg, the French Republic and the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .
On those grounds,
THE COURT ( Sixth Chamber ),
in reply to the questions submitted to it by the Conseil supérieur des assurances sociales du grand-duché de Luxembourg by order of 27 February 1985, hereby rules :
Article 11 ( 2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities must be interpreted as meaning that officials who, before entering the service of the Communities, were affiliated to a contributory pension scheme are entitled to call for the transfer of the actuarial equivalent of retirement pension rights acquired under the national scheme, envisaged in that provision, only where such a transfer is possible under the domestic law to which the national social security institution is subject .
