—

Mr Adrien and Others, in person,

—

the French Government, by D. Colas and S. Ghiandoni, acting as Agents,

—

the European Commission, by D. Martin, acting as Agent,

1

This request for a preliminary ruling concerns the interpretation of Articles 45 TFEU and 48 TFEU and Article 4(3) TEU.

2

The request has been made in proceedings between Mr Adrien and Others on the one hand and the Prime Minister, the Minister for Finance and Public Accounts and the Minister for Decentralisation and the Civil Service on the other, concerning the retirement pension of the applicants in the main proceedings under the national pension scheme.

3

The Staff Regulations of European Union officials (‘the Staff Regulations’) and the Conditions of Employment of other servants of the European Union (‘the CEOS’) are established by Council Regulation (EEC, Euratom, ECSC) No 259/68 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 (OJ, English Special Edition II, 1968(I), p. 30), as amended by Council Regulation (EC, Euratom) No 1240/2010 of 20 December 2010 (OJ 2010 L 378, p. 7).

4

Under Article 77 of the Staff Regulations:

‘An official who has completed at least 10 years’ service shall be entitled to a retirement pension. ...’

5

Article 83(2) of the Staff Regulations reads:

‘Officials shall contribute one third of the cost of financing this pension scheme. ...’

6

Article 12(1) and (2) of Annex VIII to the Staff Regulations provides:

‘1.   An official aged less than 63 years whose service terminates otherwise than by reason of death or invalidity and who is not entitled to an immediate or deferred retirement pension shall be entitled on leaving the service:

2.   By way of derogation from paragraph 1(b), officials under 63 years of age who, since taking up their duties, have, in order to establish or maintain pension rights, paid into a national pension scheme, a private insurance scheme or a pension fund of their choice which satisfies the requirements set out in paragraph 1, and whose service terminates for reasons other than death or invalidity without their qualifying for an immediate or deferred retirement pension, shall be entitled, on leaving the service, to a severance grant equal to the actuarial value of their pension rights acquired during service in the institutions. In these cases the payments made in order to establish or maintain his pension rights under the national pension scheme in application of Articles 42 or 112 [of the CEOS] shall be deducted from the severance grant.’

7

Under Article 2 of the CEOS:

‘For the purposes of these conditions of employment, “temporary staff” means:

...

...’

8

Under the first paragraph of Article 39(1) of the CEOS:

‘On leaving the service, a servant within the meaning of Article 2 shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of the severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. Where the servant is entitled to a retirement pension his pension rights shall be reduced in proportion to the amounts paid under Article 42.’

9

Article 41 of the CEOS provides:

‘As regards the funding of the social security scheme provided for in Sections B and C, the provisions of Articles 83 and 83a of the Staff Regulations and Articles 36 and 38 of Annex VIII thereto shall apply by analogy.’

10

Article 46 ter of Law No 84-16 of 11 January 1984 laying down special regulatory provisions relating to the civil service of the State (loi No 8416 du 11 janvier 1984 portant dispositions statutaires relatives à la fonction publique de l’État), as amended by Law No 2002-73 of 17 January 2002 on the modernisation of society (loi No 2002-73 du 17 janvier 2002 de modernisation sociale) (‘Law No 2002-73’) provides:

‘An official on secondment to an administration or body in the territory of a foreign State or to an international organisation may request, even if he is affiliated to the pension scheme applicable to the position to which he is seconded, to contribute to the scheme provided for in the Civil and Military Retirement Pensions Code. In those circumstances, the amount of the pension acquired in respect of the latter, added to the amount of any pension acquired in respect of the period of service on secondment, shall not exceed the pension that he would have acquired if he had not been seconded, and the pension provided for in the Civil and Military Retirement Pensions Code shall be, where appropriate, reduced in proportion with the amount of the pension acquired in respect of that secondment.

The detailed rules for the application of the present article shall be specified by decrees of the Conseil d’État.’

11

Article L. 87 of the Civil and Military Retirement Pensions Code, as worded pursuant to Law No 2002-73, provides:

‘Where an official or serviceman on secondment to an administration or body in the territory of a foreign State or to an international organisation during his career has chosen to continue to pay contributions under Article L. 61, the amount of the pension acquired under that code, added to the amount of the pension eventually paid in respect of the service completed on secondment cannot exceed the pension which he would have acquired if there had been no secondment and the amount of the pension under this code shall, if necessary, be reduced by the amount of the pension acquired on that secondment.

...’

12

Article R-74-1 of that code provides:

‘Officials on secondment referred to in Article 46 ter of [Law No 2002-73] may apply to contribute to the Civil and Military Retirement Pensions Code scheme within four months from the date on which he was notified of the secondment decision or its renewal.

The application shall be made in writing to the administration from which the official is seconded.

An official who has availed himself of the option set out in the first paragraph shall be liable to pay the contribution referred to in paragraph 2 of Article L. 61 to the sole treasurer designated by decree of the Minister responsible for the budget, in accordance with the arrangements laid down by decree. Failure to fulfil that payment obligation suspends the official’s affiliation to this scheme.

An official who has not availed himself of that option within the time prescribed shall be deemed to have renounced the possibility of contributing to the Civil and Military Retirement Pensions Code scheme.

Where a secondment is renewed, the option chosen by the official for the preceding period of secondment shall be tacitly renewed unless, within the period laid down in the first paragraph of this article, he chooses the contrary option.’

13

The Circular of 18 December 2002 sets out how the services of the administration concerned are to implement the provisions laid down in Articles 46 ter of the Law No 84-16 and L. 87 of the Civil and Military Retirement Pensions Code, as amended by Law No 2002-73.

14

The applicants in the main proceedings are French officials, seconded as legal secretaries to the Court of Justice of the European Union, where they are employed as temporary staff. Since they make mandatory contributions to the EU pension scheme, they are entitled to a pension under that scheme if they complete at least 10 years’ service with an EU institution or body. If they should leave the service before having completed 10 years’ service, in essence they are entitled, depending on the length of service completed, to either a severance grant equal to three times the sums retained from their basic salary as old-age pension contributions or payment of the actuarial equivalent of the old-age pension rights acquired under the EU scheme to a private insurance scheme or a pension fund of their choice.

15

Under the French rules at issue in the main proceedings, an official seconded to an EU institution or body must choose between two options as regards his pension under the national scheme.

16

The official may, on the one hand, suspend his affiliation to the French pension scheme for the duration of his secondment. In that case, for that period, he is affiliated solely to the EU pension scheme and his pension under the French scheme is reduced in proportion to the years without affiliation. However, that pension will be fully aggregated with the pension based on the rights acquired during his affiliation to the EU pension scheme.

17

On the other hand, the official may continue to contribute to the French pension scheme and, accordingly, remain affiliated to that scheme. In that case, during the period of secondment, he acquires rights under that scheme. However, the amount of the pension which he will receive thereunder can supplement the pension acquired under the EU scheme only to the extent of the pension which he would have acquired under the national scheme if there had been no secondment (ceiling rule). In consequence, the national retirement pension is reduced by the amount of the pension due under the EU pension scheme in such a way that the aggregated amount of the two pensions does not exceed the ceiling thus fixed (capping rule). The cap relates to the total amount of the French pension and not only to the amount of the pension corresponding to the period of secondment which gave rise to a dual affiliation.

18

The appellants in the main proceedings opted to remain affiliated to the French pension scheme during their secondments and, accordingly, contributed at the same time to that scheme and to the EU pension scheme. They have completed or are likely to complete 10 years’ service in an EU institution entitling them to receive a pension under the EU pension scheme. Since the EU pension which the appellants in the main proceedings have acquired or are likely to acquire is greater than the French pension which they would have received had there been no detachment, in accordance with the French rules at issue in the main proceedings, they do not or will not receive any pension under the French pension scheme.

19

By an application received on 6 March 2012, the appellants in the main proceedings requested the French State to repeal the national rules at issue. Since that application was rejected by an implied decision deemed to have been taken on 6 May 2012, they brought an appeal against that rejection before the Conseil d’État (Council of State, France).

20

In those circumstances, the Conseil d’État (Council of State, France) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is national legislation which permits an official on secondment to an institution of the European Union to choose, for the duration of his secondment, either to suspend his payment of contributions to the pension scheme in his State of origin, in which case his pension under that scheme is fully aggregated with the retirement benefits connected with the secondment, or to continue with the payments, in which case his pension under that scheme is limited to the amount required in order to bring the total amount of the pensions, including the pension acquired under the scheme applicable to the position to which he is seconded, to the amount of the pension he would have acquired if he had not been seconded contrary to the obligations under Article 45 of the Treaty on the Functioning of the European Union, read in the light of Article 48 TFEU, and to the principle of sincere cooperation referred to in Article 4 of the Treaty on the European Union?’

21

By its question, the referring court asks, in essence, whether Article 45 TFEU, read in the light of Article 48 TFEU, and Article 4(3) TEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which has the effect that a national official seconded to an EU institution or body who chooses to remain affiliated to the national pension scheme for the duration of his secondment loses all or part of the advantages accruing from his affiliation to that scheme if he completes 10 years’ EU service entitling him to a pension under the EU pension scheme.

22

As a preliminary point, it must be borne in mind that, although Member States retain the power to organise their social security schemes, they must nonetheless, when exercising that power, observe EU law and, in particular, the provisions of the FEU Treaty on freedom of movement for workers and the right of establishment (see judgments of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 43, and of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 38).

23

It is thus appropriate to ascertain whether the provisions of the FEU Treaty concerning the freedom of movement for workers apply in a situation such as that at issue in the main proceedings. If that is the case, it must then be determined, firstly, whether national legislation such as that at issue in the main proceedings constitutes an obstacle to the freedom of movement for workers and, secondly, if that is the case, whether that obstacle is justified.

24

Firstly, with regard to the applicability of the provisions of the FEU Treaty on the freedom of movement for workers, it follows from settled case-law that any EU national working in a Member State other than his Member State of origin and who has accepted a post in an international organisation also comes within the scope of Article 45 TFEU (see judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 11; of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 15, and of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 25 and the case-law cited).

25

It follows that EU nationals working for an EU institution or body in a Member State other than their Member State of origin, such as the appellants in the main proceedings, may not be refused the rights and social advantages which Article 45 TFEU affords them (see judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 12, and of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 16 and the case-law cited).

26

Secondly, as regards whether national legislation such as that at issue in the main proceedings constitutes an obstacle to the freedom of movement for workers within the EU, it must be borne in mind that Article 45 TFEU precludes any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the FEU Treaty (judgments of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 45; of 10 March 2011, Casteels, C‑379/09, EU:C:2011:131, paragraph 22; and of 5 February 2015, Commission v Belgium, C‑317/14, EU:C:2015:63, paragraph 23)

27

Indeed, while EU primary law can offer no guarantee to an insured person that moving to another Member State will be neutral in terms of social security, in particular where sickness and old-age pensions are concerned, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be to the advantage of the person concerned in terms of social security, or not, depending on the circumstances, it is settled case-law that, where its application is less favourable, national legislation is consistent with EU law only to the extent that, in particular, such legislation does not place the worker at a disadvantage compared with those who pursue all their activities in the Member State where it applies and does not purely and simply result in the payment of social security contributions on which there is no return (judgments of 18 April 2013, Mulders, C‑548/11, EU:C:2013:249, paragraph 45, and of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 40).

28

Thus, the Court has repeatedly classified measures which have the effect of causing workers, as a consequence of the exercise of their right to freedom of movement, to lose the social security advantages afforded them by the legislation of one Member State as obstacles, especially where those advantages represent the counterpart of contributions which they have paid (see judgments of 21 October 1975, Petroni, EU:C:1975:129, paragraph 13; of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 46; and of 18 April 2013, Mulders, C‑548/11, EU:C:2013:249, paragraph 46 and the case-law cited).

29

With regard to the national legislation at issue in the main proceedings, it must be noted that, if an official seconded to an EU institution or body remains affiliated to his national pension scheme during his secondment, that national legislation makes the pension resulting from that affiliation subject to a ceiling rule and a capping rule. Under those rules, the amount of the pension which the official will receive under the national pension scheme may supplement the pension received under the EU pension scheme only to the extent of the pension which he would have acquired under the national scheme if there had been no secondment and the national retirement pension is reduced by the amount of the pension due under the EU pension scheme in such a way that the aggregated amount of the two pensions does not exceed the ceiling thus fixed.

30

Those ceiling and capping rules mean that an official seconded to an EU institution or body who remains affiliated, during his secondment, to the national pension scheme, loses all or part of the advantages accruing from his affiliation to that scheme if he completes 10 years’ service with the EU which entitles him to a pension under the EU pension scheme. In such circumstances, an official who remains affiliated to the national pension scheme makes contributions which are non-recoverable. Those rules are thus likely to hinder or make less attractive the exercise by such an official of his freedom guaranteed under Article 45 TFEU.

31

Despite the fact that the French Government submits that the maintenance of the affiliation to the national pension scheme is an option offered by the legislation at issue in the main proceedings and not an obligation, it must be held that that fact does not divest such legislation of its nature of an obstacle to the freedom of movement for workers.

32

The optional nature of the maintenance of the affiliation to the national pension scheme does not alter the fact that the ceiling and capping rules applying when that option is exercised have the effect that an official who exercises that option has paid contributions which are non-recoverable if he completes 10 years’ service with the EU entitling him to a pension under the EU pension scheme. When a national pension scheme allows seconded officials to remain affiliated, that option must be so conceived as not to have such an effect, otherwise it constitutes an obstacle to the freedom of movement for workers.

33

The fact that national legislation such as that at issue in the main proceedings is an obstacle to the freedom of movement for workers is not called into question either by the argument put forward by the French Government that such legislation does not place seconded officials at a disadvantage compared with those who complete their entire career in the Member State of origin.

34

In fact, such legislation places a seconded official who is affiliated both to the EU pension scheme and to the national pension scheme at a disadvantage compared with an official who remains in the Member State of origin who is affiliated only to the latter scheme inasmuch as only the first official, while having contributed to two schemes at once, suffers a loss of all or part of the advantages accruing from his affiliation to the national pension scheme if he becomes entitled to a pension under the EU pension scheme.

35

Thirdly and finally, with regard to possible justification, it must be noted that the referring court does not state any ground likely to justify the obstacle to the freedom of movement for workers constituted by legislation such as that at issue in the main proceedings. Similarly, in its observations made before the Court, the French Government refrained from claiming any justification for that legislation.

36

In those circumstances, it must be held that legislation such as that at issue in the main proceedings constitutes an obstacle to the freedom of movement for workers guaranteed under Article 45 TFEU.

37

Accordingly, it is not necessary to rule on the interpretation of Article 48 TFEU or of Article 4(3) TEU.

38

Having regard to all the foregoing considerations, the answer to the question referred is that Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which has the effect that a national official seconded to an EU institution or body who chooses to remain affiliated to the national pension scheme for the duration of his secondment loses all or part of the advantages accruing from his affiliation to that scheme if he completes 10 years’ service with the EU entitling him to a pension under the EU pension scheme.

39

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which has the effect that a national official seconded to an EU institution or body who chooses to remain affiliated to the national pension scheme for the duration of his secondment loses all or part of the advantages accruing from his affiliation to that scheme if he completes 10 years’ service with the European Union entitling him to a pension under the European Union pension scheme.