Opinion of the Advocate General — ECLI:EU:C:2013:443
Date: 2013-06-27
Language of the case: Czech
Subject matter: General provisions;Staff regulations and employment conditions - EC
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary — Judgment of the Court (Fifth Chamber), 5 December 2013 1. Officials — Pensions — Pension rights acquired before entering the service of the European Union — Transfer to the European Union pension scheme — Procedures — Calculating the amount of the capital value of pension rights acquired in the national pension scheme — Calculation method — Discretion of the Member States — Limits — Calculation resulting in a sum to be transferred that is less than half of the contributions paid into the national pension scheme — Lawfulness (Art. 4(3) TEU; Art. 45 TFEU; Staff Regulations of Officials, Annex VIII, Art. 11(2); Council Regulation No 723/2004) 2. Officials — Pensions — Pension rights acquired before entering the service of the European Union — Procedures — Division of powers between the EU institutions and the national authorities (Arts 48 TFEU and 153(4) TFEU; Staff Regulations of Officials, Annex VIII, Art. 11(2); Council Regulation No 723/2004) 3. Freedom of movement for persons — Workers — Concept — National of a Member State employed by an international organization — Included (Art. 45 TFEU) 4. Officials — Equal treatment — Difference of treatment between officials of one Member State and those of other Member States as to the national rules applicable to the transfer of national pension rights into the European Union pension scheme — Lack of discrimination (Staff Regulations of Officials, Annex VIII, Art. 11(2); Council Regulation No 723/2004) 5. Officials — Pensions — Pension rights acquired before entering the service of the European Union — Transfer to the European Union pension scheme — Procedures — Calculating the amount of the capital value of pension rights acquired in the national pension scheme — Calculation method — Obligation to take account of the official’s period of affiliation to the European Union pension scheme — No such obligation (Art. 4(3) TEU; Staff Regulations of Officials, Annex VIII, Art. 11(2); Council Regulation No 723/2004) 1. With regard to the transfer to the EU pension scheme of pension rights acquired by an official in a national pension scheme, Article 11(2) of Annex VIII to the Staff Regulations, as amended by Regulation No 723/2004, must be interpreted as meaning that a Member State may determine the amount of the capital value of pension rights by means of the actuarial equivalent, the flat-rate redemption value or by means of other methods, in so far as the amount to be transferred actually represents the pension rights acquired by virtue of the previous activities of the official concerned. It follows that the Member States enjoy broad discretion in adopting their national legislation implementing Article 11(2) of Annex VIII to the Staff Regulations. This is most particularly so 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 European Union pension scheme. That method must, however, be established in accordance with the nature of the principles and rules governing their pension system. In that regard, if the calculation of the capital value of pension rights stems logically from the nature, principles and rules of the pension system in force in a Member State, the consistency of that method with EU law cannot be called into question. It is only in the case in which the method for calculating that capital significantly diverges, to the advantage or disadvantage of the official, from the nature of the principles and rules of the national pension system that the legislation of the Member State concerned is likely to constitute a barrier to the free movement of workers guaranteed by Article 45 TFEU or to infringe the obligations provided for in Article 4(3) TEU. The mere fact that the calculation method results in a sum to be transferred that is less than half of the contributions paid by the official and his former employer into the national pension scheme cannot, in itself, constitute evidence of such a divergence. Article 11(2) of Annex VIII to the Staff Regulations and Article 4(3) TEU must be interpreted as not precluding application of the method for calculating the capital value of pension rights acquired earlier which results in such a result. (see paras 26, 31, 32, 36, 38-40, operative part 1, 2) 2. In the context of a transfer to the European Union pension scheme pension rights acquired earlier in a national scheme, in order to ensure coordination of the national and European Union pension schemes, it is necessary to carry out two consecutive operations, the second of them consisting in converting the capital value of pension rights acquired in the national system into pensionable years of service to be taken into account in the European Union pension scheme. That conversion is carried out by the institutions of the European Union, in accordance with the general provisions of Article 11(2) of Annex VIII to the Staff Regulations determined by those institutions. That operation is governed by EU law. On the other hand, the first operation falls within the sole competence of the national authority administering the pension scheme with which the interested person was insured before he entered into the service of the European Union, such an operation determining the capital value of pension rights acquired in the national scheme under the relevant legislation of the Member State concerned. However, it follows from Article 48 TFEU and Article 153(4) TFEU that the right of the Member States to define the fundamental principles of their social security systems is recognised by EU law. (see paras 28-30) 3. See the text of the decision. (see para. 37) 4. An official applying for the transfer of his pension rights acquired in a pension scheme of a Member State into the European Union pension scheme cannot usefully rely on unlawful discrimination in relation to officials of the European Union from other Member States arising from the use of a different method for calculating the capital to be transferred. In such a case, the difference in treatment is the consequence of the Member States’ power to arrange their pension systems and their discretion in that regard. (see para. 39) 5. It is unequivocally apparent from Article 11(2) of Annex VIII to the Staff Regulations that the pension rights that an official is entitled to have transferred into the European Union pension scheme from the pension scheme in force in a Member State are those acquired by virtue of only those activities exercised before he entered into the service of the European Union. Therefore, Article 11(2) of that Annex and Article 4(3) TEU must be interpreted as meaning that, for the purposes of calculating the amount of the capital value of pension rights acquired under the national pension scheme and intended to be transferred into the European Union pension scheme, account is not to be taken of the period during which the official had already participated in that scheme. (see paras 45, 47, operative part 3)