61989J0037

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Officials - Pensions - Pension rights acquired before entering the service of the Communities - Transfer to the Community scheme - Scope ratione personae - Self-employed persons - Excluded - Equal treatment - Absence

( Staff Regulations of Officials, Annex VIII, Art . 11(2 ) )

The scope of Article 11(2 ) of Annex VIII to the Staff Regulations, which permits Community officials to transfer to the Community pension scheme pension rights acquired under a national pension scheme, is limited to former employees and does not extend to activities characterized by economic and personal independence .

Consequently, a person pursuing an activity as a self-employed person, such as an avocat, who gives up that activity in order to become an official of the Communities is not entitled, as Community law now stands, to claim the benefit of Article 11(2 ) of Annex VIII to the Staff Regulations .

That provision is, however, invalid in so far as it provides for such a difference in treatment between officials who acquired pension rights under a national scheme as employed persons and officials who acquired such rights as self-employed persons .

In Case C-37/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal d' instance de Paris ( cinquième arrondissement ) ( District Court for the Fifth Arrondissement of Paris ) for a preliminary ruling in the proceedings pending before that court between

Michel Weiser, an official of the Court of Justice of the European Communities, residing in Luxembourg,

and

Caisse nationale des barreaux français, whose registered office is in Paris,

on the interpretation of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities,

THE COURT

composed of : O . Due, President, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida and M . Diez de Velasco, Judges,

Advocate General : M . Darmon

Registrar : J . A . Pompe, Deputy Registrar

after considering the written observations submitted on behalf of

Mr Weiser, by Jean Rooy, of the Paris Bar,

Caisse nationale des barreaux français, by Robert Collin, of the Paris Bar, and F . Herbert, of the Brussels Bar,

the Government of the French Republic, by Edwige Belliard and Claude Chavance, acting as Agents,

the Commission of the European Communities, by Sean van Raepenbusch, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument from the parties to the main proceedings, the French Government, the Commission and, in addition, the Council, represented by John Carbery, acting as Agent, at the hearing on 30 January 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 13 February 1990,

gives the following

Judgment

1 By judgment of 26 January 1989, which was received at the Court on 16 February 1989, the tribunal d' instance de Paris ( cinquième arrondissement ) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities .

2 That question arose in proceedings between Mr Weiser, an official of the Court of Justice of the European Communities, and the Caisse nationale des barreaux français ( National Pension Fund for the French Bars ), hereinafter referred to as "the Fund ".

3 Mr Weiser was a member of the Paris Bar from 1967 to 1984 and, as such, paid retirement pension contributions to the Fund . In 1985, after he was established as an official of the Court of Justice, he sought to transfer to the Communities the pension rights he had acquired in France, corresponding to the period for which he had paid contributions between 1967 and 1984 .

4 Article 11(2 ) of Annex VIII to the Staff Regulations of Officials provides that an official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking has the right, on becoming established with that Community, to pay to it either the actuarial equivalent of retirement pension rights acquired by him in the government administration, national or international organization or undertaking or the sums repaid to him from the pension fund of the government administration or the organization or undertaking at the date of his leaving its service .

5 Mr Weiser brought an action against the Fund' s refusal to allow his application to transfer his pension rights . The tribunal d' instance de Paris ( cinquième arrondissement ), before which the proceedings were brought, referred the following question to the Court of Justice for a preliminary ruling :

"Is a French avocat who abandons his practice in order to become an official of the European Communities entitled to claim the benefit of the provisions of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities?"

6 Reference is made to the Report for the Hearing for a fuller account of the legal background to the main proceedings and the facts, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

7 In order to answer the question referred to the Court, it is necessary first to determine the scope of Article 11(2 ) of Annex VIII to the Staff Regulations . According to the terms of that provision, an official who enters the service of the Communities after leaving the service of a government administration or of a national or international organization or of an undertaking is to be entitled to transfer his pension rights .

8 It is clear from the very wording of Article 11(2 ) that the official must have been "in the service" of a government administration or of an organization or an undertaking before he joined the Communities, which can only be construed as meaning working as an official or under a contract of employment as an employee and not working on a self-employed basis .

9 Consequently, the scope of Article 11(2 ) of Annex VIII to the Staff Regulations is limited to employment and does not extend to activities characterized by economic and personal independence, such as practising as an avocat .

10 It appears from the foregoing that a person pursuing an activity as a self-employed person, such as an avocat, who gives up that activity in order to become an official of the European Communities is not entitled, as Community law now stands, to claim the benefit of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities .

11 The plaintiff in the main proceedings, the Commission and the Council argue, however, that such a literal interpretation of the contested provision would infringe the principle of equal treatment . For its part, too, the French Government has intimated that an outcome which resulted in the exclusion of members of the professions practising in an independent capacity from the scope of Article 11(2 ) of Annex VIII to the Staff Regulations would be hard to reconcile with that general principle of Community law .

12 According to the Court' s case-law, the right to have pension rights transferred is in the nature of a personal right conferred by the Staff Regulations and may be relied on against both the Member States and the Community institutions ( see the judgment of 20 October 1981 in Case 137/80 Commission v Belgium (( 1981 )) ECR 2393 ).

13 Consequently, it must be determined whether treating officials differently in that way depending on their previous occupation is consistent with the principle of equal treatment . That principle constitutes a fundamental right which is also binding on the Community authorities when they lay down rules intended to regulate the Community civil service and for which the Court must ensure respect ( see, most recently, the judgments of 18 April 1989 in Case 130/87 Retter v Caisse de pension des employés privés (( 1989 )) ECR 865 and of 14 February 1990 in Case C-137/88 Schneemann v Commission (( 1990 )) ECR I-369 ).

14 In should be pointed out in that regard that when the Community legislature lays down rules on the transfer to the Community scheme of pension rights acquired by Community officials under a national scheme, it must comply with the principle of equal treatment . It must therefore avoid laying down rules under which officials are treated differently, unless the circumstances of the persons concerned at the time when they entered the service of the Community justify differences in treatment in view of the particular characteristics of the scheme under which the pension rights were acquired or in view of the fact that they have no such rights .

15 However, the mere fact that before entering the service of the Communities certain officials acquired pension rights as employed persons whereas others acquired pension rights as self-employed persons does not constitute, for the purposes of the application of the provisions of Article 11 of Annex VIII to the Staff Regulations, a difference in circumstances such as to justify granting the former, but not the latter, the possibility of transferring their rights, at least where both the former and the latter were affiliated to retirement pension schemes which, like the compulsory schemes, have similar characteristics for the purposes of the implementation of those provisions of Article 11 of Annex VIII to the Staff Regulations .

16 Under those circumstances, by limiting its scope to officials who were formerly in employment, Article 11(2 ) of Annex VIII to the Staff Regulations deals differently with personal circumstances which, having regard to the nature and purpose of the provision at issue, do not exhibit differences such as to justify a difference in treatment in that way .

17 Consequently, Article 11(2 ) of Annex VIII to the Staff Regulations is invalid in so far as it provides for a difference in treatment, as regards the transfer of pension rights from a national scheme to the Community scheme, between officials who acquired such rights as employed persons and officials who acquired them as self-employed persons . It is for the Community legislature to draw the necessary conclusions from that situation .

18 It follows from the foregoing that the reply to the question submitted to the Court must be that a person pursuing an activity as a self-employed person, such as an avocat, who gives up that activity in order to become an official of the European Communities is not entitled, as Community law now stands, to claim the benefit of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities . That provision is, however, invalid in so far as it provides for a difference in treatment, as regards the transfer of pension rights from a national scheme to the Community scheme, between officials who acquired such rights as employed persons and officials who acquired them as self-employed persons .

Costs

19 The costs incurred by the French Government, the Council of the European Communities and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since 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,

in reply to the question submitted to it by the tribunal d' instance de Paris ( cinquième arrondissement ), by judgment of 26 January 1989, hereby rules :

A person pursuing an activity as a self-employed person, such as an avocat, who gives up that activity in order to become an official of the European Communities is not entitled, as Community law now stands, to claim the benefit of Article 11(2 ) of Annex VIII to the Staff Regulations of Officials of the European Communities .

That provision is, however, invalid in so far as it provides for a difference in treatment, as regards the transfer of pension rights from a national scheme to the Community scheme, between officials who acquired such rights as employed persons and officials who acquired them as self-employed persons .