Opinion of the Advocate General — ECLI:EU:C:2015:393
Date: 2015-06-11
Language of the case: French
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Third Chamber), 10 September 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for interpretation of provisions of EU law manifestly inapplicable to the dispute in the main proceedings — Dispute concerning a situation confined to one Member State — National legislation with a link to EU law — Jurisdiction of the Court (Art. 4(3), TEU; Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Admissibility — Limits — Hypothetical questions submitted in a context not permitting a useful answer (Art. 267 TFEU) 3. Officials — Staff Regulations — Legal nature — Regulation — Direct applicability — Obligations of the Member States — Adoption of the necessary implementing measures (Art. 288, second para., TFEU; Staff Regulations of Officials; Council Regulation No 259/68, as amended by Regulation No 1080/2010) 4. Member States — Obligations — Obligation of sincere cooperation with the EU institutions — Legislation of a Member State which may give rise to the reduction or refusal of a retirement pension payable to a worker on the basis of the legislation of that Member State on the ground that he has been employed within an EU institution — Not permissible (Art. 4(3) TEU; Staff Regulations of Officials; Council Regulation No 259/68, as amended by Regulation No 1080/2010) 5. Officials — Pensions — Pension rights acquired before entering the service of the European Union — Transfer to the EU scheme — Obligation — None (Staff Regulations of Officials, Annex VIII, Art. 11(2); Council Regulation No 259/68, as amended by Regulation No 1080/2010) 1. National legislation which impedes the recruitment by the EU institutions of national officials with a certain length of service has a link with EU law. Consequently, the Court has jurisdiction to give a preliminary ruling on whether Article 4(3) TEU read in conjunction with the Staff Regulations precludes such legislation. (see paras 25, 26, 28, 30) 2. See the text of the decision. (see para. 32) 3. See the text of the decision. (see para. 36) 4. Article 4(3) TEU, in conjunction with the Staff Regulations of Officials of the European Union, established by Regulation No 259/68 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, as amended by Regulation No 1080/2010, must be interpreted as precluding legislation of a Member State which may give rise to the reduction or refusal of a retirement pension payable to an employed person who is a national of that Member State by virtue of the service performed, in accordance with its legislation, where the total number of years of the occupational record acquired by him as an employed person in that Member State and as an EU official posted in that Member State exceeds the ‘occupational record unit’ of 45 years referred to in that legislation, in so far as, owing to the method used to calculate the fraction representing the size of the pension payable by the European Union, that reduction is greater than it would have been had he acquired the whole of his occupational record as an employed person in the Member State in question. Such national legislation is liable to impede not only the recruitment by the EU institutions of national officials with a certain length of service but also the retention of experienced officials in the service of those institutions. It could thus deter a worker who has acquired a certain length of service under the pension scheme for employed persons in that Member State from accepting a post in the service of an EU institution located in that State or encourage him to leave the post he holds in that institution early if, on account of that legislation, he may, by holding a post in that institution or by remaining in its service for a considerable time, lose the opportunity of benefiting from the pension rights which he has acquired by virtue of his activity as an employed person within that Member State prior to entering the service of the European Union. (see paras 43, 44, 53, operative part) 5. As is apparent from the wording of Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union, established by Regulation No 259/68 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, as amended by Regulation No 1080/2010, that provision merely lays down an option which every official is free to decide whether or not to exercise. Consequently, an official’s decision not to exercise that option cannot result in the loss of his rights acquired by virtue of his contributions to the national social security scheme of which he was a member before entering the service of the European Union without changing that option into an obligation, which would run counter to the unequivocal wording of that provision and therefore cannot be allowed. (see para. 52)