Opinion of the Advocate General — ECLI:EU:C:2016:926
Date: 2016-12-06
Language of the case: French
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: France

summary of the subject-matter of the main action, as is apparent from paragraphs 17 to 20 of the present judgment, which reproduce the facts as stated by the referring court. The referring court also recalls the tenor of the relevant national provisions and states the reasons which prompted it to inquire about the interpretation of EU law, with reference to the relevant case-law of the Court and, in particular, to its judgment of 26 February 2015, de Ruyter (C‑623/13, EU:C:2015:123). 31 Therefore, it must be held that the order for reference contains the factual and legal material necessary to enable the Court to give a useful answer to the referring court. 32 In those circumstances, the request for a preliminary ruling is admissible. Substance 33 By its question, the referring court asks, in essence, whether the principle that the legislation of a single Member State only is to apply in matters of social security, as set out in Regulation No 1408/71 and, subsequently, in Regulation No 883/2004, and as specified in the judgment of the Court of Justice of 26 February 2015, de Ruyter (C‑623/13, EU:C:2015:123), must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that income from real estate received in a Member State by an EU official who has his or her domicile for tax purposes in that Member State is subject to contributions and social levies that are allocated for the funding of the social security scheme of that same Member State. 34 It should be borne in mind, first of all, that, although Member States retain the power to organise their social security schemes, they must nonetheless, when exercising that power, observe EU law (judgments of 1 April 2008, Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 43; of 21 January 2016, Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 38, and of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 22). 35 Secondly, an EU official may have the status of a migrant worker for the purposes of Article 45 TFEU as a national of a Member State working in the territory of a Member State other than his or her State of origin. However, the fact nevertheless remains that, in so far as EU officials are not subject to national legislation on social security, as referred to in Article 2(1) of Regulation No 1408/71 and in the same article of Regulation No 883/2004, which defines the persons covered by those regulations, they cannot be characterised as ‘workers’ within the meaning of those provisions. Nor are they covered, in that context, by Article 48 TFEU, which conferred on the Council the task of instituting a scheme allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security, a task which the Council fulfilled by adopting Regulation No 1408/71 and, subsequently, Regulation No 883/2004 (see, to that effect, judgments of 3 October 2000, Ferlini, C‑411/98, EU:C:2000:530, paragraphs 41 and 42, and of 16 December 2004, My, C‑293/03, EU:C:2004:821, paragraphs 34 to 37). 36 In fact, EU officials are subject to the joint social security scheme of the EU institutions, which, pursuant to Article 14 of the Protocol, is laid down by the European Parliament and the Council acting by means of regulations adopted under the ordinary legislative procedure and after consultation of the other institutions. 37 The scheme of social benefits was introduced by the Staff Regulations which set out the rules applicable to EU officials under Title V thereof, which is headed ‘Emoluments and social security for officials’, and, in particular, Chapters 2 and 3 thereof, which relate to social security benefits and pensions. 38 Therefore, the legal position of EU officials with regard to their social security obligations comes within the scope of EU law by reason of their employment by the European Union (see, to that effect, judgment of 13 July 1983, Forcheri, 152/82, EU:C:1983:205, paragraph 9). 39 The requirement for Member States to observe EU law when exercising their power to organise their social security schemes, as noted in paragraph 34 above, therefore extends to the rules governing the employment relationship between an EU official and the European Union, that is to say, the relevant provisions of the Protocol and of the Staff Regulations. 40 In that respect, as observed by the Advocate General in point 72 of his Opinion, first of all, the Protocol has the same legal value as the Treaties (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 161). 41 By analogy with Article 12 of the Protocol, which establishes, in respect of EU officials, a uniform tax for the benefit of the European Union on salaries, wages and emoluments paid by it and, consequently, provides for an exemption from national taxes on those amounts, Article 14 of the Protocol, in that it confers on the EU institutions the power to establish the scheme of social security for their own civil servants, must be regarded as meaning that the compulsory affiliation of EU officials to a national social security scheme and the requirement for those officials to contribute to the funding of such a scheme are outside the jurisdiction of the Member States. 42 Secondly, the Staff Regulations, in so far as they were established by Regulation No 259/68, have all the characteristics listed in Article 288 TFEU, which stipulates that a regulation has general application, is binding in its entirety and is directly applicable in all Member States. It follows that all Member States are also bound by the Staff Regulations (see, to that effect, judgments of 20 October 1981, Commission v Belgium, 137/80, EU:C:1981:237, paragraphs 7 and 8; of 7 May 1987, Commission v Belgium, 186/85, EU:C:1987:208, paragraph 21; of 4 December 2003, Kristiansen, C‑92/02, EU:C:2003:652, paragraph 32; and of 4 February 2015, Melchior, C‑647/13, EU:C:2015:54, paragraph 22). 43 In that context, it should be noted that, as is apparent from the fourth paragraph of Article 72(1) of the Staff Regulations, part of the contribution required to meet sickness insurance cover is to be charged to the official, without the amount charged exceeding 2% of his or her basic salary. Article 73(1) of the Staff Regulations states that officials are, from the date of their entry into the service, insured against the risk of occupational disease or accidents and that they are to contribute to the cost of insuring against non-occupational risks up to 0.1% of their basic salary. Article 83(2) of the Staff Regulations also provides that officials are to contribute one third of the cost of the pension scheme, with that contribution being a given percentage of their basic salary. 44 It follows from the foregoing that the European Union alone, and not the Member States, has competence to establish the rules applicable to EU officials in respect of their social security obligations. 45 In fact, as observed by the Advocate General in point 76 of his Opinion, Article 14 of the Protocol and the provisions of the Staff Regulations on social security for EU officials fulfil, in respect of those officials, a function that is similar to that which Article 13 of Regulation No 1408/71 and Article 11 of Regulation No 883/2004 fulfil, in that they prohibit any obligation on EU officials to contribute to several schemes in this field. 46 National legislation, such as that at issue in the main proceedings, which subjects the income of an EU official to contributions and social levies specifically allocated for the funding of the social security schemes of the Member State concerned, therefore infringes the exclusive competence of the European Union under Article 14 of the Protocol and the relevant provisions of the Staff Regulations, in particular those which prescribe mandatory contributions to the funding of a social security scheme by EU officials. 47 In addition, such legislation might interfere with the equal treatment of EU officials and, therefore, discourage employment within an EU institution, since some officials would be required to contribute to a national social security scheme in addition to the joint social security scheme of the EU institutions. 48 The foregoing analysis is not called in question by the French Government’s claims that the contributions and social levies at issue in the main proceedings are classified as ‘taxes’ that are levied on income from real estate, not on earned income, and which do not directly give rise to any benefits in return or to any advantage in terms of social security benefits. In fact, as is apparent from the information provided by the referring court, those levies and contributions are in any event allocated specifically and directly for the funding of certain branches of the French social security scheme. An EU official such as Mr de Lobkowicz cannot, accordingly, be subject to those levies and contributions since his financial obligations in matters of social security are governed exclusively by the Protocol and the Staff Regulations and, as such, fall outside the jurisdiction of the Member States (see, by analogy, with regard to Regulation No 1408/71, judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraphs 23, 26, 28 and 29). 49 In the light of the foregoing considerations, the answer to the question referred is that Article 14 of the Protocol and the provisions of the Staff Regulation on the joint social security scheme of the EU institutions must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that income from real estate received in a Member State by an official of the European Union who has his or her domicile for tax purposes in that Member State is subject to contributions and social levies that are allocated for the funding of the social security scheme of that same Member State. Costs 50 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 (Grand Chamber) hereby rules: Article 14 of Protocol (No 7) on the privileges and immunities of the European Union, annexed to the EU, FEU and EAEC Treaties, and the provisions of the Staff Regulations of Officials of the European Union on the joint social security scheme of the EU institutions must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that income from real estate received in a Member State by an official of the European Union who has his or her domicile for tax purposes in that Member State is subject to contributions and social levies that are allocated for the funding of the social security scheme of that same Member State. [Signatures] *Language of the case: French