Opinion of the Advocate General — ECLI:EU:C:2016:995
Date: 2016-12-21
Language of the case: Romanian
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Romania

Summary — Judgment of the Court (Grand Chamber), 13 June 2017 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Acts of the institutions — Memorandum of understanding between the European Union and the Member State receiving financial assistance from the Union confirming that Member State’s undertaking to comply with certain economic objectives — Included (Arts 143 TFEU and 267 TFEU; Council Regulation No 332/2002, Art. 3a) 2. Economic and monetary policy — Economic policy — Balance of payments — Difficulties experienced by a Member State — Memorandum of understanding concluded with Romania confirming that Member State’s undertaking to comply with certain economic objectives — No obligation for Romania to adopt provisions prohibiting the combining of a retirement pension with employment income (Art. 143 TFEU; Council Regulation No 332/2002; Council Decision 2009/459) 3. Economic and monetary policy — Economic policy — Balance of payments — Difficulties experienced by a Member State — Memorandum of understanding concluded with Romania confirming that Member State’s undertaking to comply with certain economic objectives — Establishment of national legislation prohibiting the combining of a retirement pension with employment income — No infringement of the right to property (Art. 6 TEU; Charter of Fundamental Rights of the European Union, Arts 17 and 52(1); Council Decision 2009/459) 4. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope — National legislation prohibiting, subject to certain limits, the combination of a retirement pension with employment income from professional activity in the public sector — Difference in treatment between professional judges and persons occupying a post whose term is laid down in the national constitution — Exclusion (Council Directive 2000/78, Art. 2(2)(b)) 1. The Memorandum of Understanding between the European Community and Romania, concluded in Bucharest and Brussels on 23 June 2009, must be regarded as an act of an EU institution, within the meaning of Article 267 TFEU, which may be subject to interpretation by the Court of Justice of the European Union. The memorandum is based in law on Article 143 TFEU, which gives the Union the power to grant mutual assistance to a Member State whose currency is not the euro and which faces difficulties or is seriously threatened with difficulties as regards its balance of payments. As an act whose legal basis lies in the provisions of EU law mentioned in paragraphs 31 to 33 of the present judgment and concluded, in particular, by the European Union, represented by the Commission, the Memorandum of Understanding constitutes an act of an EU institution within the meaning of Article 267(b) TFEU. (see paras. 31, 35, 36, operative part 1) 2. The Memorandum of Understanding between the European Community and Romania, concluded in Bucharest and Brussels on 23 June 2009, must be interpreted as meaning that it does not require the adoption of national legislation, such as that at issue in the main proceedings, which prohibits the combining of a net public-sector retirement pension with income from activities carried out in public institutions if the amount of the pension exceeds the amount of the average gross national salary on the basis of which the State social security budget was drawn up. In that regard, as was pointed out in the reply to the first question, the Memorandum of Understanding gives concrete form to an agreement between the EU and a Member State on an economic programme enabling the latter to benefit from medium-term financial assistance for Member States’ balance of payments, referred to in Article 143 TFEU and specified in Regulation No 332/2002. It contains a number of economic policy requirements, to which the granting of that financial assistance is subject and which were agreed by the Commission and the Romanian authorities in accordance with the provisions of Decision 2009/459. That being said, the Memorandum of Understanding, although mandatory, contains no specific provision requiring the adoption of the national legislation at issue in the main proceedings. (see paras. 38, 41, 42, operative part 2) 3. Article 6 TEU and Article 17 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits the combining of a net public-sector retirement pension with income from activities carried out in public institutions if the amount of that pension exceeds a certain threshold. In that regard, it must be observed, first of all, that, as is apparent from the wording of Article 2 of Law No 329/2009, that law is of an exceptional nature and is intended to be temporary. In addition, it does not call into question the very principle of the right to a pension, but restricts its exercise in well-defined and limited circumstances, namely, when the pension is combined with a professional activity carried out in public institutions and when the amount of the pension exceeds a certain threshold. As regards, in particular, the national legislation at issue in the main proceedings, it aims to achieve both the objective of reducing public sector wage costs and that of reforming the pension system, which were laid down by Decision 2009/459 and by the Memorandum of Understanding with a view to reducing the balance of payments difficulties that led Romania to seek and to obtain financial assistance from the European Union. Such objectives are objectives of general interest. As regards the suitability and necessity of the national legislation at issue in the main proceedings, it must be borne in mind that, given the particular economic context, Member States have broad discretion when adopting economic decisions and are in the best position to determine the measures likely to achieve the objective pursued. (see para. 55-57, 60, operative part 3) 4. Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not applying to national legislation, such as that at issue in the main proceedings, which is interpreted as meaning that the prohibition on the combining of a net retirement pension with income from activities carried out in public institutions, laid down by the national legislation if the amount of the pension exceeds the amount of the national gross average salary on the basis of which the State social security budget was drawn up, applies to professional judges but not to persons occupying a post whose term is laid down in the national Constitution. (see para. 66, operative part. 4)