Opinion of the Advocate General — ECLI:EU:C:2012:305
Date: 2012-05-24
Language of the case: German
Subject matter: Social Policy;Staff regulations and employment conditions - EC;Privileges and immunities
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, see Gaitanides, C., op. cit., pp. 51 to 55. 13 – When the Headquarters Agreement was concluded on 18 September 1998, the ECB was not among the more limited circle of Community institutions listed in Article 7 EC. Under the EC Treaty, the ESCB and the ECB had in effect a special position in the institutional architecture. 14 – See the Opinion of Advocate General Jacobs in Commission v ECB, point 150. 15 – See Ott, J., ‘EU Regulatory Agencies in EU External Relations: Trapped in a Legal Minefield between European and International Law’, European Foreign Affairs Review, 2008, No 13, p. 527. 16 – See, to that effect, Horng, D.-C., ‘The European Central Bank’s External Relations with Third Countries and the IMF’, European Foreign Affairs Review, 2004, No 3, p. 326. 17 – See the order in Case 2/68 Ufficio Imposte di Consumo di Ispra v Commission [1968] ECR 435. In that case, the Court did not take the approach proposed by Advocate General Roemer in his Opinion, which consisted in applying, by analogy, the principles governing the UNO headquarters agreement to the agreement between the Commission and the Italian Government concerning the headquarters of the Nuclear Research Centre at Ispra. The Court found that, even if the Commission could conclude a headquarters agreement with the Member State concerned in order to ensure the application of the Protocol on privileges and immunities, that agreement could not diminish the rights and safeguards arising directly from the Protocol in favour of the Member States and their organs, the Community institutions and individuals. With regard to the European Schools, for a contrary inference, see Case 44/84 Hurd [1986] ECR 29, paragraphs 20 to 22, and Case C‑132/09 Commission v Belgium [2010] ECR I‑8695, paragraph 44. 18 – See Case C‑220/03 ECB v Germany [2005] ECR I‑10595, paragraph 24. 19 – See Schwarze, J. (ed.), EU-Kommentar, Article 238 EC, 2nd ed., Nomos, Baden-Baden, 2009, pp. 1839 to 1843. 20 – ECB v Germany, paragraph 27. See also the Opinion of Advocate General Stix‑Hackl in that case, point 29. 21 – ECB v Germany, paragraph 24. 22 – According to doctrine, a public law contract within the meaning of Article 272 TFEU, the wording of which corresponds to that of Article 35(4) of the Statute of the ESCB, may be governed either by the law of a Member State or by European Union law. Regarding the first possibility, the Headquarters Agreement is connected only with the legal system of the Federal Republic of Germany which, however, cannot be applicable in view of the purpose of the Agreement, which is to implement the provisions of the Protocol on privileges and immunities. See, in that regard, Schwarze, J., op. cit., p. 1842. 23 – With regard to the Headquarters Agreement not having effect in relation to everyone, see the Court’s observations in the order in Ufficio Imposte di Consumo di Ispra v Commission, p. 438. 24 – See, to that effect, Case 189/85 Commission v Germany [1987] ECR 2061, paragraph 14, and Case 186/85 Commission v Belgium [1987] ECR 2029, paragraph 21. The Court expressly found that the relevant version of the Staff Regulations of Officials and Conditions of Employment of Other Servants of the European Communities were adopted by means of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 (OJ, English Special Edition 1968 (1), p. 30; ‘Staff Regulations of European Officials’) and that the regulation therefore has general application, is binding in its entirety and directly applicable in all Member States. 25 – See, to that effect, Joined Cases C‑397/01 to C-403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 108, and case‑law cited. 26 – A different conclusion might be reached in relation to the Headquarters Agreement in the light of German law. The Agreement was ratified in Germany by the Assenting Law of 19 December 1998 (BGBl. 1998 II, p. 2996). 27 – It should be noted that the term used in the German version of Article 36(1) of the Statute of the ESCB is ‘Beschäftigungsbedingungen’ which is the same as the terminology of Article 15 of the Headquarters Agreement. 28 – Commission v Germany, paragraph 30. 29 – Commission v Belgium, paragraph 35. 30 – Case C‑409/02 P Pflugradt v ECB [2004] ECR I‑9873, paragraphs 31 to 33, and case‑law cited. However, it must be added that the ECB, as an institution, has discretion with regard to the organisation of its services, notwithstanding the legal instrument of a contractual nature on which the employment relationship between it and its staff is based: Opinion of Advocate General Léger in Pflugradt v ECB, point 36, and case‑law cited. 31 – See, by analogy, the order in Case T‑238/00 IPSO and USE v ECB [2002] ECR II‑2237, paragraphs 48 to 50, and case‑law cited. See also Case C-430/97 Johannes [1999] ECR I‑3475, paragraph 19. 32 – Joined Cases T‑178/00 and T‑341/00 Pflugradt v ECB [2002] ECR II‑4035, paragraph 48. See also the order in IPSO and USE v ECB, paragraphs 48 and 49. In the event of a gap in the rules, the ECB conditions of employment and staff rules must be interpreted in accordance with the case‑law on the Staff Regulations of European Officials. See, to that effect, Case T‑63/02 Cerafogli and Poloni v ECB [2003] ECR II‑4929, paragraph 51. 33 – The Court has taken the view that family allowances, in so far as they are components of remuneration, must be regarded as linked to an employment relationship. See, in that regard, Commission v Germany, paragraph 26, and Commission v Belgium, paragraph 29. 34 – The judgments in Commission v Germany and Commission v Belgium and the links between the different social security schemes applicable to servants of the ECB are based on the principle that officials and servants of the European Union, like those of the ECB, may fall within the scope of other social security schemes. 35 – The same principle underlies the application of the scheme established by Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and their families, moving within the Community (OJ, English Special Edition 1971 (II), p. 416, in the version modified and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (OJ 1998 L 209, p. 1) and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1). See, in particular, Chapters 1 to 8 on the different categories of benefits. 36 – Council Regulation (Euratom, ECSC, EEC) No 549/69 of 25 March 1969 determining the categories of officials and other servants of the European Communities to whom the provisions of Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply (OJ, English Special Edition 1969 (I), p. 119), as amended by Council Regulation (EC, ECSC, Euratom) No 1198/98 of 5 June 1998 (OJ 1998 L 166, p. 3). It should be added that, as European Union law stands at present, the relevant provisions are Article 11, the second paragraph of Article 12, and Article 13 of the Protocol on privileges and immunities. 37 – In particular, benefits which may be received as a former member of a social insurance scheme or as a person claiming under a former member. 38 – See, inter alia, Articles 67 and 68 of the Staff Regulations of European Officials. 39 – Case 6/60 Humblet v Belgium [1960] ECR 559, 577. See also the Opinion of Advocate General Cruz Villalón in Case C-558/10 Bourges-Maunoury and Heintz, pending before the Court, point 30, and case‑law cited. 40 – The COE provisions concerning the invalidity allowance seem to me rather unclear. 41 – For example, it appears from the file submitted to the Court that the care insurance provided for by German law is such a scheme which ECB employees may join voluntarily. For details, see Joined Cases C‑502/01 and C‑31/02 Gaumann-Cerri and Barth [2004] ECR I‑6483, paragraphs 3 to 7. 42 – Under Article 51 of the Charter, its provisions are addressed to the European Union and to the Member States when they are implementing European Union law. In addition, as the preamble makes clear, it does not create new rights but reaffirms the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States. In that context, therefore, the provisions of European Union law must be interpreted in conformity with the provisions of the Charter. 43 – Such an interpretation would lead to an unsatisfactory situation in so far as ECB employees taking part in the Graduate Programme would not be entitled to the unemployment benefits granted on the basis of the relevant national social security scheme even if they were not entitled to benefits of that kind paid by the ECB under the provisions of Annex IIa to the COE. 44 – Unlike the present case, I note also that the judgments in Case C‑293/03 My [2004] ECR I‑12013 and Case C‑185/04 Öberg [2006] ECR I‑1453, cited by the referring court, concerned situations where the person concerned had left employment in a European Union institution. 45 – See Bosmann, paragraph 31, and, in particular, with regard to social security legislation, Case 302/84 Ten Holder [1986] ECR 1821, paragraphs 19 to 21; Case C‑372/02 Adanez-Vega [2004] ECR I‑I0761, paragraph 18. See also Case C‑208/07 vonChamier-Glisczinski [2009] ECR I‑6095, paragraphs 55 and 56, and also the Opinion of Advocate General Mazák in Joined Cases C‑611/10 and C‑612/10 Hudzinski and Wawrzyniak, pending before the Court, point 55. 46 – The conditions of short-term employment are governed by Annex IIb to the COE, which provide only for such limited cover in the part of that annex entitled ‘Social security’.