Opinion of the Advocate General — ECLI:EU:C:2022:542
Date: 2022-07-07
Language of the case: Italian
Subject matter: Principles, objectives and tasks of the Treaties;Social security for migrant workers;Staff regulations and employment conditions - EC;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-404/21 – 1 
Case C-404/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
30 June 2021 
Referring court:  
Tribunale Ordinario di Asti (Italy) 
Date of the decision to refer:  
13 January 2021 
Applicant:  
WP 
Defendants:  
Istituto nazionale della previdenza sociale 
Repubblica italiana 
  
Subject matter of the main proceedings 
Action seeking to establish the right of a member of staff of the European Central 
Bank (ECB) to transfer to the ECB’s pension scheme pension rights acquired with 
the Istituto nazionale della previdenza sociale (National Social Security Institute, 
Italy) (‘the INPS’) and/or the right of that member of staff to the same transfer as 
compensation for failure to implement European legislation. 
Subject matter and legal basis of the reference 
Request for a preliminary ruling pursuant to Article 267 TFEU on whether a set of 
national rules or a national practice which does not allow the transfer to the ECB’s 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-404/21 
 
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pension scheme of capital corresponding to pension rights acquired under the 
national pension scheme is compatible with Articles 45 and 48 TFEU, Article 4 
TEU, Article 11 of Annex VIII to the Staff Regulations of Officials of the 
European Union and Article 8 of Annex IIIa to the Conditions of Employment for 
Staff of the European Central Bank. Recognition of the right to such a transfer 
even in the absence of an implementing act or an agreement between the Member 
State or the national social security institution and the ECB. 
Questions referred for a preliminary ruling 
‘Must Articles 45 and 48 TFEU, Article 4 TEU, Article 11 of Annex VIII to the 
Staff Regulations of Officials [of the European Union] and Article 8 of Annex IIIa 
to the Conditions of Employment for Staff of the European Central Bank be 
interpreted as precluding a set of national rules or a national administrative 
practice which does not allow a worker who is a national of a Member State who 
has paid contributions to the national social security institution and who currently 
works for an EU institution, such as the ECB, to transfer to the pension scheme of 
that institution the pension contributions credited to the social security scheme of 
his or her own State? 
Based on the answer to the question set out above, must it be possible to exercise 
the right to transfer contributions even in the absence of national implementing 
legislation or a specific agreement between the Member State of which the worker 
is a national or the worker’s pension institution, on the one hand, and the EU 
institution, on the other?’ 
Provisions of European Union law relied on 
Articles 45 and 48 TFEU 
Article 4(3) TEU 
Article 11 of Annex VIII to the Staff Regulations of Officials of the European 
Union 
Article 8 of Annex IIIa to the Conditions of Employment for Staff of the European 
Central Bank: 
‘The ECB shall enter into agreements and make appropriate arrangements with 
such other employee benefit arrangements, organisations and governments as it 
determines to accept the transfer to the Scheme of amounts of cash in respect of 
members following completion of their probationary period with the ECB.’ 
Provisions of national law relied on 
Article 18 of legge n. 115 del 29 luglio 2015 (Law No 115 of 29 July 2015)  
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Pursuant to this article, from 1 January 2016, citizens of the European Union who 
are enrolled or who have been enrolled in the compulsory general disability and 
retirement insurance scheme for employees have the right to combine the 
insurance periods completed under that scheme with those completed with 
international organisations. Insurance periods may be combined at the request of 
the interested party; such request must be submitted to the Italian social security 
institution with which the insurance periods were completed. 
Article 1 of legge n. 29 del 7 febbraio 2015 (Law No 29 of 7 February 1979) 
This article entitles employees in the public or private sector, who are or have 
been enrolled in compulsory pension schemes instead of the compulsory general 
disability and retirement insurance scheme for employees managed by the INPS, 
to request that all periods in which they contributed to the abovementioned social 
security schemes be aggregated in the compulsory general insurance scheme, so 
that they receive a single pension, and that he or she be granted corresponding 
insurance entitlements with that scheme. To that end, the pension fund transfers 
the relevant amount of contributions to said compulsory general insurance 
scheme. However, this applies only to national social security institutions. 
Agreement of 24 January 2000 between the INPS and the European Investment 
Bank for the transfer of insurance entitlements applicable to staff of the European 
Investment Bank and INPS Circular No 14 of 23 January 2001 illustrating the key 
features of the agreement  
In addition to the possibility of transferring to the INPS the capital value of the 
pension rights acquired with the EIB, this agreement also provides for the 
opposite situation of transferring to the EIB the capital value of the pension rights 
acquired with the INPS. In the latter case, the request to transfer the insurance 
entitlements may be sent directly to the INPS, and to the EIB for information, by 
serving staff at the time of the request and for insurance periods credited to the 
INPS that have not given rise to the payment of a pension. The EIB requests the 
actuarial equivalent from the INPS corresponding to the position in the relevant 
fund. The INPS informs the person concerned and the EIB of the amount to be 
transferred within 60 days of receiving the applicant’s consent, then transfers the 
amount within three months. 
Succinct presentation of the facts and the procedure in the main proceedings 
1 The applicant is currently a member of staff of the ECB, where he has worked 
since 1 March 2012. From 1 August 1982 to 24 February 2012, he worked in Italy 
as the employee of a private employer. During that period, a compulsory 
contribution was paid into the INPS employee pension fund. 
2 On 12 December 2016, the applicant asked the INPS to transfer to the ECB’s 
pension scheme – potentially subject to any agreement signed between the INPS 
and the ECB and, if necessary, by way of compensation – the actuarial equivalent 
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corresponding to the insurance entitlements he had established with the INPS 
employee pension fund, calculated on the basis of the rules governing pension 
payments under that fund, as of the date of submission of the request.  
3 In the alternative, the applicant asked the INPS to transfer to the ECB’s pension 
scheme the updated capital resulting from the social security contributions paid 
into the INPS employee pension fund. 
4 The INPS refused the applicant’s request, stating that it could not make the 
requested transfer in the absence of a specific legislative measure or bilateral 
agreement. 
5 The subsequent administrative action brought by the applicant against the decision 
refusing his request was declared inadmissible. 
6 The applicant then brought an action before the referring court, in which he 
claimed that that court should: 
– principally, find and declare that the INPS and/or the Italian Republic is 
obliged to take all necessary measures to transfer to the ECB’s pension scheme 
the sum of EUR 714 924.79, which is equal to the actuarial equivalent 
corresponding to the pension rights acquired by the applicant with the INPS 
employee pension fund, and consequently order the INPS and/or the Italian 
Republic to take all necessary measures to transfer said amount to the ECB’s 
pension scheme; 
– in the alternative, find and declare that the INPS and/or the Italian Republic is 
obliged to transfer to the ECB’s pension scheme the sum of EUR 714 924.79 
by way of compensation, and consequently order the INPS and/or the Italian 
Republic to transfer said amount to the ECB’s pension scheme by way of 
compensation. 
7 The INPS raised an objection of inadmissibility in respect of the action and 
submitted, in essence, that the applicant had no claim. 
8 The Italian Republic contests the substance of the action. 
The essential arguments of the parties to the main proceedings 
9 According to the applicant, Article 11 of Annex VIII to the Staff Regulations and 
Article 8 of Annex IIIa to the Conditions of Employment for Staff of the ECB 
directly entitle the ECB employee to transfer the pension rights acquired with a 
national pension fund. Under Article 11 of Annex VIII to the Staff Regulations, an 
official who enters the service of the Union after leaving the service of a national 
administration is to be entitled to have paid to the Union the capital value, updated 
to the date of the actual transfer, of pension rights acquired by virtue of such 
service or activities. The appointing authority of the institution in which the 
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official serves is to determine by means of general implementing provisions the 
number of years of pensionable service with which he or she is to be credited 
under the Union pension scheme in respect of the former period of service. 
Article 8 of [Annex IIIa to] the Conditions of Employment for Staff of the ECB 
also provides that the ECB is to enter into arrangements with national pension 
funds to ensure the transfer of capital representing pension rights from national 
funds to the ECB’s scheme for staff who have completed their probationary period 
with the ECB. 
10 Accordingly, the practice of the INPS, which refuses to make such a transfer in 
the absence of national implementing legislation or an agreement between the 
INPS or the Italian State and the ECB, is contrary to the abovementioned 
provisions, as well as Articles 45 and 48 TFEU and the duty of sincere 
cooperation laid down in Article 4 TEU, and therefore constitutes a barrier to the 
free movement of workers recognised by the Treaty and infringes the rights of 
those who, having worked in a Member State, then go on to work for a European 
institution such as the ECB. The INPS is obliged therefore to transfer the acquired 
pension rights to that institution. As for the methods for calculating those rights, 
the INPS might refer, if necessary, to the criteria laid down in the agreement 
between the INPS and the EIB, referred to in INPS Circular No 14 of 23 January 
2001. 
11 The applicant further notes that failure to enact national legislation, or the absence 
of an agreement between the INPS and the ECB on how to implement the transfer 
at issue, constitutes a breach of EU law and, in particular, of the duty of sincere 
cooperation, which gives rise to an obligation to pay compensation to the 
applicant. 
12 According to the INPS, the abovementioned provisions of EU law cannot be 
applied directly. Thus, in the absence of transposing rules or an agreement, the 
INPS cannot arrange the transfer at issue. 
13 In the present case, the Italian Republic denies that the conditions for recognising 
the right to compensation for failure to implement EU law are met. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The referring court considers it necessary to determine whether Articles 45 and 48 
TFEU, Article 4 TEU, Article 11 of Annex VIII to the Staff Regulations and 
Article 8 of Annex IIIa to the Conditions of Employment for Staff of the ECB 
must be interpreted as meaning that they recognise the right of an employee of an 
EU institution, and of the ECB in particular, to transfer to the ECB’s pension 
scheme pension rights acquired with the national social security institution and 
whether that right must still be recognised in the absence of the adoption of 
national implementing rules or a specific agreement between the Member State or 
the national pension institution and the ECB defining the procedures for 
exercising that right. Alternatively, in the opinion of the referring court, reference 
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could be made to the criteria laid down in Law No 29 of 7 February 1979 on the 
aggregation of contributions between national social security institutions. 
15 In view of this uncertainty, the referring court cites two judgments of the Court of 
Justice. 
16 In its judgment of 4 July 2013 in Gardella (C-233/12, paragraphs 28 to 30), the 
Court, in the case of an employee of the European Patent Office (‘the EPO’), 
found that the latter had no right to transfer pension rights acquired by that 
employee for periods of work carried out in Italy since, on the one hand, the EPO 
is not an EU institution or body, and therefore its employees are excluded from 
the subjective scope of the Staff Regulations, and on the other hand, the EPO’s 
rules on pensions – which are not a legal act of the European Union and do not 
produce the same direct effects in the Member States as the Staff Regulations – 
provide, as a condition for the transfer of the capital value representing pension 
rights, for specific permission from the body which manages the national pension 
scheme. 
17 The referring court considers that an ‘a contrario’ argument – in other words, an 
argument that an ECB employee has the right to transfer the pension rights 
acquired by him or her to a national authority – is also tenable, given that the ECB 
is an institution of the European Union and that Article 8 of Annex IIIa to the 
Conditions of Employment for Staff of the European Central Bank does not 
require authorisation by the national social security institution. 
18 In its judgment of 5 December 2013, following a request for a preliminary ruling 
from the Krajský soud v Praze (Regional Court, Prague, Czech Republic), the 
Court held that the European Union legislator did not intend, by Article 11(2) of 
Annex VIII to the Staff Regulations, to harmonise the various national provisions 
in the field of pensions and that the right of the Member States to define the 
fundamental principles of their social security systems is recognised by EU law 
(C-166/12, paragraphs 30 to 32). The Member States enjoy broad discretion in 
adopting their national rules implementing Article 11(2) of Annex VIII to the 
Staff Regulations, particularly in the case of the Member States’ method for 
determining the amount of the capital value of pension rights acquired in the 
national scheme and intended to be taken into account by the EU pension scheme. 
19 The referring court takes the view that that judgment seems to require the 
adoption of specific national rules for determining the capital value of pension 
rights acquired in the national scheme to be transferred to the EU pension scheme, 
and appears to conclude that it is impossible, in the absence of such an 
implementing measure, to use the calculation criteria laid down in national 
legislation for similar transfers of insurance entitlements between different 
national pension schemes, or laid down in agreements between the INPS and other 
EU bodies, such as that between the INPS and the EIB. 
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20 In the light of those considerations, the referring court refers the above questions 
to the Court of Justice for a preliminary ruling.