Conclusions
OPINION OF ADVOCATE GENERAL
TIZZANO
delivered on 9 September 2004(1)
Case C-293/03
Gregorio MY
v
Office national des pensions
(Reference for a preliminary ruling from the Tribunal du travail du Bruxelles (Kingdom of Belgium))
(Free movement for workers – Article 39 EC – Community officials – Early retirement pension – Reckoning of periods of employment with the European Community – National legislation – Refusal – Article 10 EC – Staff Regulations – Lawfulness)
I – Introduction
1.
This case concerns a question referred for a preliminary ruling to the Court of Justice of the European Communities by the
Tribunal du travail de Bruxelles (‘Brussels Labour Court’) on the pension entitlements of employees of the Community institutions.
2.
In summary, the referring court is asking the Court whether Community law precludes a rule of national law under which years
of service completed by a Community national in the employment of a Community institution cannot be counted towards eligibility
for an early retirement pension.
II – Legal context
A –
The relevant Community law
3.
Of primary relevance in this case is Article 39 of the EC Treaty, enshrining the principle of freedom of movement for workers,
the second paragraph of which prohibits ‘any discrimination based on nationality between workers of the Member States as regards
employment, remuneration and other conditions of work and employment’.
4.
The relevant provisions of secondary law include Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom
of movement for workers within the Community (‘Regulation No 1612/68’).
(2)
5.
According to Article 7:
‘1.
A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from
national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards
remuneration, dismissal, and should he become unemployed, reinstatement or re-employment;
2.
He shall enjoy the same social and tax advantages as national workers.
…’
6.
Also relevant is Regulation (EEC) No 1408/71 of the Council of 14 June 1971, enacted on the basis of Article 42 EC, on the
application of social security schemes to employed persons and their families moving within the Community, as amended by the
recent Council Regulation (EC) No 1606/98 of 29 June 1998 (‘Regulation No 1408/71’).
(3)
7.
According to Article 2(1) of that regulation:
‘This Regulation shall apply to workers who are or have been subject to the legislation of one or more Member States and who
are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of
the Member States, as also to the members of their families and their survivors.’
8.
The other relevant provision is Article 11 of Annex VIII to the Staff Regulations of Officials of the European Communities,
adopted on the basis of Article 283 EC, which provides that:
‘1. An official who leaves the service of the Communities to:
- –
- enter the service of a government administration or a national or international organisation which has concluded an agreement
with the Communities;
- –
- pursue an activity in an employed or self-employed capacity, by virtue of which he acquires pension rights under a scheme
whose administrative bodies have concluded an agreement with the Communities,
shall be entitled to have the actuarial equivalent of his retirement pension rights in the Communities transferred to the
pension rights of that administration or organisation or to the pension rights under which he acquires retirement pension
rights by virtue of the activity pursued in an employed or self-employed capacity.
2. An official who enters the service of the Communities after:
- –
- leaving the service of a government administration or of a national or international organisation; or
- –
- pursuing an activity in an employed or self-employed capacity;
shall be entitled upon establishment to have paid to the Communities either the actuarial equivalent or the flat rate redemption
value of retirement pension rights acquired by virtue of such service or activities.’
B –
National law
9.
Article 3 of the Law of 21 May 1991 on the relationship between the Belgian pension schemes and those of institutions governed
by public international law provides that ‘any civil servant may, with the agreement of the competent institution, request
that the amount of retirement pension relating to service and periods prior to the date on which he joined the institution
should be paid to that institution’.
(4)
10.
Under Article 9 of that law, however, the person concerned is given the right to withdraw the request for a transfer of pension
entitlements accumulated under the Belgian scheme. Such withdrawal is final and irrevocable.
11.
However, the Belgian state scheme initially did not allow pension rights accumulated by an official of the Community institutions
to be transferred from the Community pension scheme to the Belgian scheme.
12.
That prohibition ended with the passing of the recent Law of 10 February 2003, under which officials and temporary employees
leaving the service of a ‘Community institution’ in order to take up a new occupational activity carrying old-age pension
provision under the Belgian pension scheme are now also given the right to request the transfer of their pension rights from
the Community scheme to the pension scheme of the Kingdom of Belgium (Article 14).
13.
Article 29 of the Law of 10 February 2003 provides that ‘this law shall take effect on 1 January 2002 and shall apply to all
transfer requests submitted as from that date …’.
14.
But most directly relevant to the present case is Article 4(2) of the Royal Decree of 23 December 1996, which provides that
‘in order to claim an early retirement pension … the claimant must prove that he has completed at least 35 calendar years
of employment conferring entitlement to a pension under this royal decree, under the Law of 20 July 1990, under Royal Decree
No 50, under a Belgian scheme for manual workers, employees, miners, seamen or self-employed workers, under a Belgian scheme
applicable to workers in the public services or of the Société nationale des chemins de fer belges [Belgian National Railway
Company] or under any other Belgian scheme’.
(5)
III – Facts and procedure
15.
Mr My is an Italian national who has lived in Belgium since the age of nine. At 15 he began to work in Belgium.
16.
In 1974, having worked for 19 years as an employee of various Belgian companies, Mr My was appointed to a post with the General
Secretariat of the Council of the European Union, where he worked for 27 years until 31 May 2001.
17.
In March 1992, Mr My applied to the Office national des pensions (‘the ONP’), in accordance with the Belgian Law of 21 May
1991, for his pension rights accumulated under the Belgian scheme to be transferred to the pension scheme of the Community
institutions. In October 1992, the ONP notified the value of those rights to him.
18.
Mr My subsequently decided to withdraw the application and notice of withdrawal was given to the ONP by the Council of the
European Union by registered letter of 10 October 2000, setting out also that under Article 9 of the Law of 21 May 1991 the
refusal had become final.
19.
Mr My was notified of that letter by the ONP on 17 October 2000.
20.
On 20 October 2000, after notice had been given by the Council, Mr My applied to the ONP for an early retirement pension pursuant
to Article 4(2) of the Royal Decree of 23 December 1996.
21.
The ONP did not recognise the years of service completed by Mr My at the Council and by decision of 2 May 2001 denied his
request on the ground that he had not accumulated the 35 years of service required under Article 4(2) of the Royal Decree
of 23 December 1996 in order to qualify for an early retirement pension.
22.
By proceedings filed at Brussels Labour Court on 18 May 2001, Mr My challenged the decision to refuse his request.
23.
The Brussels Labour Court had doubts as to the compatibility with European law of the Law of 21 May 1991 and the Royal Decree
of 23 December 1996 and submitted the following question to the Court for a preliminary ruling pursuant to Article 234 EC:
‘Are national provisions, such as the Belgian Law of 21 May 1991 (establishing a certain relationship between the Belgian
pension schemes and those of organisations governed by public international law) and Article 4(2) of the Belgian Royal Decree
of 23 December 1996 (implementing Articles 15, 16 and 17 of the Law of 26 July 1996 modernising social security and ensuring
the viability of the statutory pension schemes), or Article 11 of Annex VIII to the Staff Regulations of Officials of the
European Communities, contrary to Articles 2, 3, 17, 18, 39, 40, 42 and 283 of the EC Treaty and Article 7 of Regulation (EEC)
No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community: (1) in that these national provisions
and the Staff Regulations do not allow a citizen of the European Union, such as the plaintiff, whose professional career has
been carried out first in an undertaking or in a national public service and then in the European Union civil service, or
vice versa, to compare the pension benefits which he would obtain under each scheme, be it national or European, through transfer
of rights acquired under the other schemes, and, based on this comparison, to request transfer of these rights either from
the national scheme to the European scheme or, conversely, from the European scheme to the national scheme; (2) in that by
providing that the person concerned must expressly waive the right to transfer from the Belgian scheme to the European scheme
or by causing an administrative practice to that effect, without the aforementioned comparison having been made, these provisions
mislead or could mislead him; (3) in that these national provisions do not allow years of service as an official of the European
Union to be taken into account for the purposes of an early retirement pension?’
24.
In the ensuing proceedings, written observations were submitted by Mr My, the ONP, the Commission, the Kingdom of the Netherlands,
and the Hellenic Republic.
25.
Mr My, the ONP and the Commission were represented at the hearing on 17 June 2004.
IV – Legal analysisThe admissibility of the question referred for a preliminary ruling
26.
Before considering the merits of the question referred by the national court, it is necessary to address the various grounds
of inadmissibility raised by the Netherlands, the ONP and the Commission.
27.
(a) The Netherlands Government submits that the order for reference provides an incomplete description of the factual and
legal context. The scope of the question referred could therefore not be properly understood.
28.
In its view, the proceedings before the national court appear to concern supplementary pension schemes whereas the question
referred for a preliminary ruling relates to national legislation on statutory pension schemes. Furthermore, the order also
fails to explain how Belgian law regulates the transfer of pension rights.
29.
I can say straight away that the Netherlands Government’s objection does not appear to me to be well founded. The requirement
for the national court to describe sufficiently clearly the factual and legal context of the case is directed primarily at
enabling the Court to provide an interpretation of Community law which will be of use to the national court,
(6)
and to give the governments of the Member States and other interested parties an opportunity to take a position on the question
referred and to submit written observations pursuant to Article 20 of the Statute of the Court of Justice.
(7)
30.
In the present case, there is no doubt that the order for reference is silent on a number of aspects: the factual and legal
background to the case and the reasons why the national court finds a reference to the Court necessary are described in summary
fashion.
31.
None the less, the information provided, meagre though it be, did enable the parties, the Greek Government and the Netherlands
Government itself to submit written observations on the merits of the question referred to the Court in so far as it relates
to the Treaty rules on freedom of movement for workers.
32.
Moreover, the information set out in the order for reference was supplemented by the file forwarded by the national court
and by the written observations submitted to the Court by the parties. Copies of all these documents were sent to the Member
States and to the other interested parties for the purposes of the hearing, at which they had the opportunity to amplify their
observations and take a clearer position on the question raised by the referring court.
33.
From all of this and in the light of the Court’s case-law,
(8)
it may be concluded that the Court has been sufficiently apprised of the factual and legislative background to the main proceedings
to enable it to determine whether legislation such as the Belgian legislation in question is compatible with Community law.
34.
I therefore propose that the objection of inadmissibility raised by the Netherlands Government be dismissed.
35.
(b) From a different perspective, the ONP claims that the reference is inadmissible having become moot with the enactment
of the Law of 10 February 2003.
36.
According to the ONP, that law gives employees of the Community institutions the right to request the amount of their accumulated
pension to be transferred from the Community scheme to the Belgian national pensions scheme, thus enabling the periods of
work to which the transfer pertains to be recognised for the purposes of aggregating the periods of contribution.
37.
The ONP is therefore bound to take into account the period during which Mr My worked at the Council, with the result that
Mr My will qualify for the early retirement pension that he requested.
38.
At the hearing on 17 June 2004, the ONP reaffirmed its position. The Commission, however, and in my opinion rightly, expressed
doubts as to whether the Law of 10 February 2003 could have application to the case at hand.
39.
Those doubts relate principally to the material and temporal scope of the Law of 10 February 2003.
40.
As regards material scope, it seems from the information contained in the file that the Law of 10 February 2003 applies only
in the case of a Community national requesting the
transfer of pension rights accumulated in the service of the Community institutions from the Community pension scheme to the Belgian one. However, that
law does not appear to require the Belgian authorities to include periods worked by a Community national in the service of
the institutions in
aggregating periods of contribution.
41.
According to the documents in the file, Mr My did not request the ONP to transfer the pension rights accumulated by him in
the service of the Council from the Community scheme to the Belgian one. All he did was to apply for an early retirement pension.
42.
But even if the Law of 10 February 2003 could apply to requests for periods of contribution to be aggregated for the purposes
of eligibility for an early retirement pension, the question would arise as to its temporal scope.
43.
In accordance with Article 29, that law entered into force on 1 January 2002 and applies only to pension rights transfer applications
submitted
as from that date.
44.
The file shows that Mr My submitted his early retirement pension application on 20 October 2000, well over a year before the
entry into force of the Law of 10 February 2003.
45.
At the hearing, the ONP referred to the existence of an administrative practice whereby the new legislation could apply even
to applications submitted prior to 1 January 2002 if by that date a final decision on them had not yet been made.
46.
It does not seem to me, however, that vague assertions of that nature are sufficient to permit the clear letter of the law
to be disregarded.
47.
I therefore take the view that the Court is unable to establish for certain whether the law in question is in fact applicable
to the instant case and whether it accordingly disposes of the main proceedings. On the contrary, the facts at hand point
to the opposite conclusion.
48.
In the light of those considerations, I therefore propose that the Court should reject the objection of inadmissibility raised
by the ONP.
49.
(c) I turn finally to consider the objection of inadmissibility raised by the Commission.
50.
In summary, the Commission argues that the Court of Justice should express a view only on the third part of the question referred,
which concerns the compatibility with Community law of a rule that prevents years worked by a Community national in the Community
institutions counting towards eligibility for an early retirement pension.
51.
In the view of that Community institution, the first two parts of the question referred have no connection with the issue
in the main proceedings and, accordingly, would not be of use to the national court in resolving the case before it.
52.
It seems to me that the Commission’s objection is well founded and should be upheld.
53.
As the case-law of the Court indicates,
(9)
the preliminary-ruling procedure is designed to give the national court answers that are of use in deciding the case before
it. In other words, the purpose of the system of cooperation set in motion by a preliminary reference is not to obtain an
opinion from the Community Court but to contribute to the resolution of a genuine and existing dispute.
(10)
54.
In the main proceedings, as I have noted above, Mr My never asked for the pension rights he had accumulated in the Council’s
employment to be transferred from the Community scheme to the Belgian pension scheme. He sought only an early retirement pension
and challenged the decision by the ONP not to count the 27 years he had served as a Council official towards the eligibility
threshold of 35 calendar years worked that is required under Article 4(2) of the Royal Decree of 23 December 1996 in order
to qualify for that benefit.
55.
It follows that the only issue in the main proceedings is whether the Belgian authorities are required to aggregate the periods
in which Mr My was contributing to the pension scheme of the Community institutions with those in which he was contributing
to the Belgian scheme.
56.
In the light of those considerations, it seems to me that only the third part of the question is of actual relevance in the
national proceedings and that only by replying to that part of the question referred could the Court be giving the national
court answers genuinely useful to the resolution of the case pending before it.
57.
I therefore take the view that the Court is not required to answer the first two parts of the question referred for a preliminary
ruling.
The issues raised by the third part of the question referred
58.
Confining myself, accordingly, to that part of the question referred, I will examine it initially from the perspective of
the order for reference, subject to what I will subsequently have to say by way of clarification.
59.
From that perspective, I would first note that the Commission, for good reason, suggests that the question concerned needs
to be narrowed down.
60.
In its order for reference, the national court expresses doubts as to the compatibility with various rules of Community law
of Article 4(2) of the Royal Decree of 23 December 1996. These include Articles 2, 3, 17, 18, 39, 40, 42 and 283 EC as well
as Article 7 of Regulation (EEC) 1612/68.
61.
But in fact, except for Article 39 of the Treaty and Article 7 of Regulation 1612/68, the other provisions, in my view, have
no relevance to this case.
62.
As far as Articles 2 and 3 EC are concerned, it is settled case-law
(11)
that these articles do not lay down a complete and fully-fledged set of substantive rules but simply set out general objectives
that the Community and the Member States must attain. They can therefore be used at the most for interpretative purposes,
in conjunction with the other Treaty provisions that implement their content.
(12)
63.
Nor do Articles 40 and 42 EC lay down substantive rules. Rather, they serve only as the legal basis for the Council to adopt
the measures necessary to give effect to the freedom of movement for workers enshrined in Article 39 EC. And the same may
be said of Article 283 EC, which does no more than give the Council power to lay down ‘the Staff Regulations of Officials
of the European Communities and the Conditions of employment of other servants of those Communities’.
64.
Article 18 EC, finally, sets out in a general way the right of every citizen of the Union to move and reside freely within
the territory of the Member States. As the Court has consistently held, however, it applies only to situations which, while
falling within the material and personal scope of the Treaty, are not covered by any specific Treaty rules on freedom of movement.
(13)
To the extent, therefore, that this case lies within the scope of Article 39 EC, which governs specifically freedom of movement
for workers, it is that article and not Article 18 EC that falls to be considered here. Similar considerations apply in respect
of Article 17 EC.
65.
In short, of the several provisions referred to by the national court, the only one that – I repeat, from the perspective
of the order for reference – is relevant to this case is Article 39 EC. For it is common cause that Mr My, an Italian national,
went to live in another Member State, Belgium, where he worked first in the employ of various Belgian companies and subsequently
in that of the Council of the European Union.
66.
It still remains to be decided, however, whether, as suggested by the Commission, the answer to the question might also engage
Regulation 1408/71, which, although it is not cited by the national court, could none the less on the face of it be germane
to this case since it in fact gives effect to the rule laid down in Article 42 EC on the aggregation of periods of insurance.
67.
It does not seem to me, however, that that regulation can have any application here.
68.
In the first instance, it is doubtful whether, prior to its recent amendment by Regulation No 883/2004 of 29 April 2004, that
regulation could apply to early retirement pensions. It was only following that amendment that ‘anticipatory old-age benefits’
were explicitly included in the material scope of the regulation (Article 4).
(14)
69.
Secondly, as we have seen (paragraph 7, above), the personal scope of Regulation No 1408/71 is anyway restricted to ‘workers
who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States
…’.
70.
In
Ferlini, the Court held that ‘EC officials and members of their families … cannot be characterised as workers within the meaning
of Regulation No 1408/71. They are not subject to national legislation on social security, as required under Article 2(1)
of Regulation No 1408/71.’
(15)
71.
In the same judgment, however, the Court decided that an EC official does have the
status of a migrant worker, stating that ‘a Community national working in a Member State other than his State of origin does not
lose his status of worker within the meaning of Article [39(1) EC] through occupying a post within an international organisation,
even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed
by an international agreement’.
(16)
72.
On the basis of those considerations, I therefore come to the same conclusion as the Commission, that Mr My, despite not falling
within the scope of Regulation 1408/71, is none the less covered by the broad concept of ‘worker’ as used in Article 39 EC.
73.
On that premiss and in the light of all the foregoing considerations, I believe that the question referred can be narrowed
down to the question whether Article 39 EC and Article 7 of Regulation No 1612/68 preclude national legislation under which
years of service accumulated by a worker at an institution of the European Union are not reckonable towards the years of service
required to qualify for an early retirement pension as provided for under that legislation.
(17)
The merits of the question referred
74.
Only the Commission and Mr My answer this question – and they do so in the affirmative. The Netherlands and Greek Governments,
on the other hand, concern themselves exclusively with the first two parts of the question referred, that is, those parts
which, as I have said (paragraphs 56 and 57), are not relevant for the purposes of the matter in dispute.
75.
For my part, let me first observe that it is the settled case-law of this Court that the body of Treaty provisions relating
to freedom of movement for persons is intended to facilitate the pursuit by Community citizens of occupational activities
of all kinds throughout the Community, and preclude measures which might place Community citizens at a disadvantage when they
wish to pursue an economic activity in the territory of another Member State.
(18)
76.
It follows that Article 39 EC prohibits not only all discrimination, direct or indirect, based on nationality but also ‘national
rules which are applicable irrespective of the nationality of the workers concerned but impede their freedom of movement’.
(19)
77.
Turning to the case at hand, it seems to me indisputable that a rule such as that at issue in the national proceedings applies
irrespective of the worker’s nationality. It does not treat non-national workers less favourably than Belgian workers, who
would equally be debarred under the impugned provision from having years of service with the Community institutions counted
towards eligibility for early retirement pensions.
78.
Likewise, there seems to me to be no doubt but that the rule at issue, albeit not entailing any discrimination, direct or
indirect, based on nationality, is calculated to prevent or restrict, and hence to discourage, the pursuit of an occupational
activity within the Community.
79.
Because of the rule, Mr My and all Community workers who may find themselves in a similar situation are placed at an actual
disadvantage, since by virtue of the sole fact of taking up a position with an institution of the European Union they forfeit
the prospect of receiving a social security benefit to which they would otherwise have been entitled. That can obviously have
a direct bearing on the decision of those workers whether to accept a job with a Community institution, just as it may deter
an official of the institutions from leaving his post to go to work for another employer in Belgium.
80.
What this amounts to, in other words, is a case on all fours with those situations, which the Court had no hesitation in finding
contrary to the principle of freedom of movement for workers, where a national provision took no account of years worked by
a Community worker in another Member State.
(20)
In our case too, as we have seen, there is a very similar obstacle affecting the decision of the worker whether to accept
a position.
81.
But there are two important differences with regard to the cases that usually come before the Court in this area.
82.
The first and less critical difference is that, as noted above, this is not a case of discrimination based on nationality,
since the pension benefit in question is denied in Belgium to
all Community nationals solely by virtue of the fact that they worked inter alia for the Community institutions.
83.
The second and more significant difference, which is linked in part to the first, is that the situations that concern us here
do not necessarily involve any border being crossed. Since the Community institutions are not a Member State, taking a job
there does not necessarily entail crossing a national boundary. And, in the event, it is doubtful whether Mr My did cross
such a boundary, given that he was already living and working in Belgium prior to his employment at the Council of the European
Union.
84.
To meet that objection the Commission argues, citing the case-law of the Court,
(21)
that such situations can be regarded as constituting discrimination based on the exercise of the right to free movement in
the other Member States. Having regard to its objectives and the fact that it enshrines a fundamental freedom, Article 39
EC should be read as meaning that it prohibits Member States from discriminating on the basis of the fact that, as in the
present case, a Community national, having carried on an occupational activity in Belgium, then went to work for the Community
institutions. On that approach, in the Commission’s view, the discrimination could be avoided by treating the period worked
for those institutions as equivalent to a period spent in the Belgian civil service or that of another Member State.
85.
I have doubts, however, as to whether that approach is the most appropriate. Firstly, it seems to me in itself very strained
and in any case premissed on a fiction and on an equivalence of uncertain and debatable merit. Secondly, because it is not
clear whether the approach would also cover nationals of the Member State concerned (and workers equivalent to them for present
purposes). If not, I cannot see why, in order to avoid an unfair restriction, one should devise an artificial solution whereby
the restriction is eliminated for migrant workers but maintained in its entirety for Belgian nationals, or workers in general
resident in Belgium, who have served with the Community institutions located in that State.
86.
That consequence would also be all the more unjustified and unreasonable if one considers that the reason why no national
boundary was crossed in the instant case is the purely ‘fortuitous’ and ‘chance’ circumstance that Mr My worked in Community
offices based in Belgium. Had he happened to have been assigned to offices situated in other Community locations, he would
not have suffered the adverse effects of the Belgian legislation, despite the circumstances being identical.
87.
But of course the objection goes beyond the facts of this case. Adopting that unsatisfactory approach might lead to results
both discriminatory and perverse. It would mean, for example, that a Belgian national working at the Luxembourg offices of
the European Parliament would, as a migrant worker, come within the scope of Article 39 EC and accordingly escape the consequences
of the Belgian legislation in question, whereas the exact opposite would ensue if, purely by chance, he had been assigned
to the Brussels offices of that institution, not to mention the complications that would arise if, as sometimes happens, his
place of work alternated between the two locations. And all this despite the fact that his choice of location was not dictated
by whatever country was host to the institution concerned but by motives relating to his career within that institution.
88.
Those who decide to work for the Community institutions clearly do not do so, as a rule, because they wish to go and live
in Belgium or Luxembourg. That is usually a secondary and fortuitous consequence of that decision, having to do with the fact
(which is also ‘fortuitous’, in this context) that the institutions (or many of them) have their seats in those countries.
But the employing institution could equally well have been located elsewhere without that having any bearing on the status
of the Community official,
for present purposes, as a migrant worker.
89.
All this demonstrates that the key factor in this case (and in analogous situations) is neither
the nationality of the worker nor
the place of work, but
the nature of the employing organisation. In other words, the restriction under discussion is not attracted by the movement of the worker (except in certain cases
and then only indirectly), but rather –
and irrespective of the nationality or original residence of the individual concerned – by the fact that he worked for the Community institutions.
90.
But if that is so, then it follows that this is not after all a case concerning Article 39 EC and the question of free movement
for workers. Or, if one prefers, it is about that but in quite a particular sense, that is, in the sense that what the worker
crosses in these cases are not ‘physical borders’ but ‘legal borders’, created and defined by the special status of the Community
institutions and their legal order and, in particular, in this case, by the special nature of the employment relationship
within them. That relationship is one which, to use the Court’s own words, is ‘within an international organisation’, subject
to rules ‘governed by an international agreement’ (see
Ferlini, paragraph 42 et seq.) and safeguarded, not just by its special staff regulations, but also and above all by the obligation
on Member States not to prejudice the interests of the organisation and to take all appropriate measures in order to ensure
the full achievement of its tasks (Article 10 EC).
91.
In that sense, therefore, but only in that sense, it may well be said that Mr My’s situation is no different from that of
a worker leaving his job to go and work in another Member State. Although Mr My did not cross any physical frontier within
the Union in order to take up employment at the Council, he did indeed cross a ‘legal border’, in that he moved from a national
legal order to another, internationally guaranteed, legal order.
92.
Moreover, the Court has explicitly recognised this special feature of the Community system and of the conditions of employment
of its staff. With reference to Article 11(2) of Annex VIII to the Staff Regulations of the European Communities (paragraph
8, above), the Court explained in this regard that the system for the transfer of pension rights between the national and
Community pension schemes ‘was intended to facilitate movement from national employment, whether public or private, to the
Community administration and thus ensure that the Communities have the best possible chance of being able to choose qualified
staff who already possess suitable experience’.
(22)
93.
And on that basis, in the same judgment, it declared unlawful a situation in which the defendant government’s refusal, unlike
other Member States, to guarantee the rights in question ‘destroys the equality of Community officials from other Member States
with those from Belgium by introducing discrimination against the latter. That refusal might also impede the recruitment by
the Community of Belgian officials with a certain length of service since movement from the national administration to that
of the Community would entail the loss of pension rights to which they would be entitled if they had not accepted employment
with the Community’ (paragraph 19).
94.
Those are words that also fit the present case precisely, because here too, as we have seen, the impugned national legislation
both discriminates against employees from (or living in) Belgium and creates a restriction calculated to discourage movement
to the Community administration.
95.
It is true that the pension entitlement at issue in that case was one explicitly provided for in the Staff Regulations whereas
here that is not so. It seems to me, however, that the protection of the entitlement at issue in this case is covered entirely
by the same reasoning as that applied in that judgment, because the point, ultimately, is to ensure transferability of the
social security entitlements of civil servants – in both directions, from Member State to Community and vice versa.
96.
It follows that provisions such as those under examination violate the principles of equality and transferability of legal
entitlements that underlie the Staff Regulations of the European Communities as well as the more general principle enshrined
in Article 10 EC, since, as the Commission too observes, Member States must take all measures necessary or appropriate to
give full effect to the Staff Regulations and, at the same time, to avoid prejudicing the interests of the Community and jeopardising
the attainment of its objectives.
97.
In conclusion, I take the view that Article 10 EC and the Staff Regulations of the European Communities must be interpreted
as meaning that they preclude a national rule that prevents years of service completed by a Community national with a Community
institution being counted towards eligibility for an early retirement pension.
V – Conclusion
98.
I am accordingly of the opinion that the Court should answer the question referred by the Tribunal du travail de Bruxelles
as follows:
Article 10 EC and the Staff Regulations of the European Communities must be interpreted as meaning that they preclude a national
rule that prevents years of service completed by a Community national with a Community institution being counted towards eligibility
for an early retirement pension.
- 1 –
- Original language: Italian.
- 2 –
- OJ, English Special Edition 1968 (II), p. 475.
- 3 –
- OJ, English Special Edition 1971 (II), p. 416. Note that under Regulation (EC) No 859/2003 of 14 May 2003 the provisions of
Regulation No 1408/71 were extended to nationals of third countries not already covered by those provisions solely on the
ground of their nationality. Finally, Regulation No 1408/71 was recently replaced by Regulation (EC) No 883/2004 of the European
Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).
- 4 –
- Unofficial translation.
- 5 –
- Unofficial translation.
- 6 –
- Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraphs 31 to 33. See also Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo [1993] ECR I-393, paragraph 6, Case C‑458/93 Saddik [1995] ECR I-511, and Case C-67/96 Albany [1999] ECR I-5751, paragraph 39.
- 7 –
- .Deliège, paragraph 31.
- 8 –
- Joined Cases C-115/97 to C-117/97 Brentjens’ Handelsonderneming [1999] ECR I-6025, paragraphs 42 and 43, Albany, paragraph 43, and Deliège, paragraphs 34 and 35.
- 9 –
- Case C-35/99 Arduino [2002] ECR I‑1529, paragraph 25, and Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61.
- 10 –
- Case C-314/95 Djabali [1998] ECR I-1149, paragraphs 17 to 20, and Case C-340/99 TNT Traco [2001] ECR I-4109, paragraphs 30 and 31.
- 11 –
- See Case 126/86 Giménez Zaera [1987] ECR 3697, paragraph 11, Case C-339/89 Alsthom [1991] ECR I-107, paragraphs 8 and 9, and Joined Cases 78/90 to 83/90 Compagnie Commerciale de l'Ouest [1992] ECR I-1847, paragraphs 17 and 18.
- 12 –
- Case C-378/97 Wijsenbeek [1999] ECR I-6207 and Case C-9/99 Échirolles Distribution [2000] ECR I-8207.
- 13 –
- Case C-100/01 Oteiza Olazabal [2002] ECR I‑10981.
- 14 –
- See also Case 171/82 Valentini [1983] ECR 2157, paragraphs 16 to 18, which seems to exclude from the scope of Regulation No 1408/71 benefits of the type
in question, as being different from the old-age benefits covered by that regulation.
- 15 –
- Case C-411/98 Ferlini [2000] ECR I-8081, paragraph 41.
- 16 –
- .Ferlini, paragraph 42. See also Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 11, and Case C-310/91 Schmid [1993] ECR I-3011, paragraph 20. Similarly, to the effect that the principles enshrined in Article 39 apply also to workers
who do not come within the scope of Regulation No 1408/71, see Case C-443/93 Vougioukas [1995] ECR I-4033, paragraphs 39 to 41.
- 17 –
- I think it worth pointing out that, stated in these terms, this case is not an isolated one. The question as now expressed
has cropped up again, in very similar terms, in recent cases that are still pending before the Court (Cases C-137/04 and C-185/04,
both concerning the non-eligibility of Community officials for certain social security benefits in Sweden).
- 18 –
- See Case 143/87 Stanton [1988] ECR 3877, and Bosman.
- 19 –
- Case C-190/98 Graf [2000] ECR I-493, paragraph 18.
- 20 –
- I will mention only the Vougioukas case, also cited by the Commission, in which the Greek authorities denied a Greek national the right to receive a pension
in Greece after refusing to take into account the years of service completed by Mr Vougioukas in a German public hospital.
In its judgment, the Court held that situation to be contrary to Article 39 EC, since the objective of that article ‘would
not be attained if, as a result of exercising their right to freedom of movement, workers were to lose social security advantages
granted to them by the legislation of a Member State: that might dissuade Community workers from exercising their right to
freedom of movement and would therefore constitute an obstacle to that freedom’. By failing to recognise periods of service
completed in public hospitals in other Member States as pensionable, the Court went on, the effect of the Greek legislation
was to ‘establish different treatment for workers who have not exercised their right to freedom of movement by comparison
with migrant workers, which places the latter at a disadvantage’ (Vougioukas, paragraphs 39 to 41).
- 21 –
- See, in particular, Joined Cases C-4/95 and C-5/95 Stöber and Pereira [1997] ECR I-511, paragraph 38.
- 22 –
- Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 11. See also the more recent judgment of the Court of First Instance in Case T-233/97 Bang-Hansen [1998] ECR-SC I‑A‑625 and II-1889, paragraph 30.
