Opinion of the Advocate General — ECLI:EU:C:2011:461
Date: 2011-07-07
Language of the case: English
Subject matter: External relations;Provisions governing the Institutions;Free movement of workers;International agreements
Procedure: Action for failure to fulfil obligations - successful
Origin: United Kingdom

Summary of the Judgment 1. International agreements — Convention defining the Statute of the European Schools — Interpretation of Article 12(4)(a), last sentence, of the Convention (Convention defining the Statute of the European Schools, Art. 12(4)(a)) 2. International agreements — Convention defining the Statute of the European Schools — Application of Articles 12(4)(a) and 25(1) of the Convention (Convention defining the Statute of the European Schools, Arts 12(4)(a) and 25(1)) 1. The last sentence of Article 12(4)(a) of the Convention defining the Statute of the European Schools must be interpreted as meaning that it requires the Member States party to that Convention to ensure that teachers assigned or seconded to the European Schools enjoy, during their secondment or assignment, the same rights to career progression and retirement as those applicable to their national counterparts under the legislation of their Member State of origin. While the first three sentences of that article place the burden of responsibilities on the Board of Governors, and those responsibilities must be discharged, where appropriate, in collaboration with the governments, its last sentence is worded neutrally, recording the right of teachers to retain their promotion and retirement rights guaranteed by their national rules, without specifying by whom those rights must be guaranteed. However, those rights could not be guaranteed if the Member States party to the Convention were free to organise their national rules and the provisions governing the assignment or secondment of their teachers to a European School in a way that would deprive those teachers of those rights during the assignment or secondment. In that regard, the promotion and retirement rights of the teachers assigned or seconded to European Schools are entirely governed by the national legislation of the States concerned and it is, consequently, impossible for the Board of Governors to ensure that those rights are retained where that legislation does not allow them to be retained. Moreover, while the Board of Governors is required to respect that legislation, the fact remains that, first, the application of that legislation to those teachers does not require any intervention on the part of the Board and, second, it is hardly conceivable that the Board could affect the promotion and retirement rights granted to those teachers by their national legislation, given that its powers are limited and strictly defined by the Convention. Finally, the scope of the terms ‘promotion … rights guaranteed’ by national rules, appearing in the last sentence of Article 12(4)(a) of the Convention, and thus the protection granted by that provision to teachers assigned or seconded to the European Schools, may not differ according to their place of origin. Those terms, therefore, require an independent interpretation, which must, inter alia, allow the objective of that provision actually to be achieved and must ensure that teachers do not suffer disadvantages as regards promotion or retirement as a result of their assignment or secondment to a European School. (see paras 42-44, 52, 53, 56, operative part 1) 2. By excluding English and Welsh teachers assigned or seconded to the European Schools, during their assignment or secondment, from access to the higher salary scales, in particular those known as ‘threshold pay’, ‘excellent teacher system’ or ‘advanced skills teachers’ and from access to additional payments, such as ‘teaching and learning responsibility payments’, provided for by the ‘School Teachers Pay and Conditions Document’ (STPCD) the United Kingdom of Great Britain and Northern Ireland has applied Articles 12(4)(a) and 25(1) of the Convention incorrectly. Access to higher salary scales such as the post-threshold pay scale and the scales applying to excellent teachers and advanced skills teachers and access to other additional payments such as teaching and learning responsibility payments provided for by the STPCD constitute promotion rights within the meaning of the last sentence of Article 12(4)(a) of the Convention which the United Kingdom must ensure the observance of for the teachers assigned or seconded from England and Wales to the European Schools. Moreover, given that access to those scales and access to those payments have a direct influence on the amount of the retirement pension which such teachers may claim, they also represent a retirement right guaranteed by their national rules, within the meaning of that provision. Finally, the freezing of the remuneration of English and Welsh teachers assigned or seconded to the European Schools resulted in the Union having to pay a higher European supplement to those teachers under Article 25(2) of the Convention, in conjunction with Article 49 of the regulations for seconded staff, which entailed an increase in the annual contribution of the Union to the budget of those schools. Therefore, insofar as the correct interpretation and the correct application of the last sentence of Article 12(4)(a) of the Convention by the United Kingdom would have resulted in a higher contribution by that Member State to the budget of the European Schools, there is at least an indirect link between the breach of Article 12(4)(a) of the Convention and the obligation incumbent on the Member States under Article 25(1) of that Convention. (see paras 91, 92, 94, 95, operative part 2)