Judgment;Summary — ECLI:EU:C:2021:95
Date: 2021-02-04
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Staff regulations and employment conditions - EC
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation  C-903/19 — 1 
Case C-903/19 
Request for a preliminary ruling 
Date lodged: 
10 December 2019 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
2 December 2019 
Appellant: 
DQ 
Respondents: 
Ministre de la transition écologique et solidaire 
Ministre de l’action et des comptes publics 
  
… 
DQ 
 
…  
The Conseil d’État (Council of State) (France) 
sitting in its judicial capacity (Litigation 
Section, Combined 4th and 1st Chambers) 
 
…  
Hearing on 18 November 2019 
Delivery on 2 December 2019 
 
  
Having regard to the following procedure: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 12. 2019 — CASE C-903/19 
 
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By application lodged at the tribunal administratif de Strasbourg (Administrative 
Court, Strasbourg, France), DQ sought the annulment for misuse of powers of (i) 
the decision of 10 July 2014 by which the director of the regional directorate for 
environment, planning and housing (DREAL) of Alsace refused DQ’s request for 
the transfer of the actuarial equivalent of his pension rights acquired under the 
pension scheme for officials of the European Union, and (ii) the decision of 
17 September 2014 by which the assistant regional director of DREAL dismissed 
DQ’s internal appeal against the decision of 10 July 2014. By judgment … of 
19 October 2016, the tribunal administratif (Administrative Court) dismissed 
DQ’s application. 
By an appeal, a reply and a further written pleading lodged on 30 November 2016, 
29 June 2017 and 24 December 2018 …, DQ claims that the Conseil d’État 
(Council of State) should: 
1. set aside that judgment; 
2. in the alternative, refer a question to the Court of Justice of the European 
Union for a preliminary ruling on whether … [wording of the question 
referred for a preliminary ruling];… 
3. ruling on the substance of the case, uphold his application for annulment of 
the decisions of 10 July 2014 and 17 September 2014 and order the regional 
director of environment, planning and housing of Alsace to allow the 
transfer of the actuarial equivalent of the pension rights acquired under the 
European Union pension scheme within the period of one month from 
notification the decision, subject to a penalty payment of EUR 100 for each 
day of delay; 
4. … [request relating to costs] 
DQ submits that the judgment under appeal is vitiated by: 
– a procedural irregularity … [explanation of the alleged procedural defect]; 
– an inadequate statement of reasons … [explanation of the alleged inadequacy 
of the statement of reasons]; 
– an error of law in so far as it finds that the contested decisions are not vitiated 
by lack of competence … [explanation of the alleged lack of competence]; 
– an error of law and breach of the principle of equal treatment in so far as it 
finds that the entitlement to a transfer of the actuarial equivalent of pension 
rights provided for in Article 11(1) of Annex VIII to the Staff Regulations of 
Officials of the European Union is reserved exclusively to officials of the 
European Union who are initially posted within an administration of a Member 
State. 
MINISTRE DE LA TRANSITION ÉCOLOGIQUE ET SOLIDAIRE AND MINISTRE DE L’ACTION ET DES COMPTES PUBLICS 
 
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Anonymised version 
… The ministre de l’économie et des finances (Minister for the Economy and 
Finance) contends that the appeal should be dismissed. He submits that the 
grounds of appeal are unfounded. 
… Le ministre d’État, ministre de la transition écologique et solidaire (State 
Minister, Minister for Ecological and Inclusive Transition) and the ministre de la 
cohésion des territoires (Minister for Regional Cohesion) contend that the appeal 
should be dismissed. They submit that the authority responsible for the contested 
decision is the State pension service and that, as for the remainder, the grounds of 
appeal are unfounded. 
… The ministre de l’action et des comptes publics (Minister for the Public Sector 
and Public Accounts) contends that the appeal should be dismissed. He submits 
that the grounds of appeal are unfounded. 
… [procedural matters] 
Having regard to:  
– the Treaty on the Functioning of the European Union, in particular Article 267 
thereof; 
– Council Regulation No 31 (EEC), 11 (EAEC), of 18 December 1961 laying 
down the Staff Regulations of Officials and the Conditions of Employment of 
Other Servants of the European Communities, as amended, in particular, by 
Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 
1968 and Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004; 
– the Code des pensions civiles et militaires de retraite (Civil and Military 
Retirement Pensions Code); 
– the Code de la sécurité sociale (Social Security Code); 
– Decree No 2009-1052 of 26 August 2009; 
– the Code de justice administrative (Code of Administrative Justice); 
… 
… [procedural matters] 
Whereas: 
1 It is clear from the documents in the case file before the court ruling on the 
substance of the case that DQ, a State civil servant since 1 September 2006 and 
senior expert in sustainable development in the departmental directorate of the 
Bas-Rhin area, was assigned non-active status for personal reasons between 
1 April 2011 and 31 August 2013, during which time he held a position as 
member of the contract staff at the European Commission. After returning to his 
REQUEST FOR A PRELIMINARY RULING OF 2. 12. 2019 — CASE C-903/19 
 
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Anonymised version 
administration of origin at the end of that period of non-active status, he requested 
the transfer to the pension scheme for State officials of the actuarial equivalent of 
his pension rights acquired under the pension scheme for officials of the European 
Union, relying on the provisions of Article 11(1) of Annex VIII to the Staff 
Regulations of Officials of the European Union laid down in Regulation (EEC, 
Euratom, ECSC) No 259/68 of the Council of 29 February 1968, amended by 
Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004. His request 
was refused by two decisions of 10 July and 17 September 2014. DQ appeals on a 
point of law against the judgment of the tribunal administratif de Strasbourg 
(Administrative Court, Strasbourg) dismissing his application for annulment of 
those decisions. 
Lawfulness of the judgment under appeal: 
2 … [examination and rejection of the ground of appeal alleging that the judgment 
is vitiated by a procedural irregularity, irrelevant to the question referred for a 
preliminary ruling] 
3 … [examination and rejection of the ground of appeal alleging that the statement 
of reasons is inadequate, irrelevant to the question referred for a preliminary 
ruling] 
Merits of the judgment under appeal: 
Claim that the contested decisions are vitiated by lack of competence: 
4 …  
… [examination and rejection of the ground of appeal alleging that the authority 
responsible for the decisions lacked competence] 
Scope of the persons entitled to a transfer of the actuarial equivalent of pension 
rights: 
5 DQ submits that, in its judgment, the tribunal administratif de Strasbourg 
(Administrative Court, Strasbourg) erred in law and infringed the principle of 
equal treatment by finding that, for the purpose of the provisions of Article 11(1) 
of Annex VIII to the Staff Regulations of Officials of the European Union laid 
down in Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 
29 February 1968, made applicable to contract staff by Article 109(1) of the 
Conditions of Employment of Contract Staff of the European Communities, which 
was introduced by Council Regulation (EC, Euratom) No 723/2004 of 22 March 
2004 amending Regulation [No 259/68], ‘entering the service’ must be interpreted 
as referring only to the initial posting of the servant within a national 
administration, not also to his return after a period of non-active status for 
personal reasons. Under those provisions: ‘1. An official who leaves the service of 
the Union to: — enter the service of a government administration or a national or 
international organisation which has concluded an agreement with the Union; … 
MINISTRE DE LA TRANSITION ÉCOLOGIQUE ET SOLIDAIRE AND MINISTRE DE L’ACTION ET DES COMPTES PUBLICS 
 
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Anonymised version 
shall be entitled to have the actuarial equivalent of his retirement pension rights 
updated to the actual date of transfer, in the Union transferred to the pension fund 
of that administration or organisation or to the pension fund under which he 
acquires retirement pension rights by virtue of the activity pursued in an employed 
or self-employed capacity’. The answer to the ground of appeal raised depends on 
whether the benefit of the provisions of Article 11(1) of Annex VIII to the 
Regulation laying down the Staff Regulations of Officials and the Conditions of 
Employment of Other Servants of the European Communities, as amended by 
Regulation [No 723/2004], is reserved exclusively to officials and contract staff 
posted for the first time within a national administration after having been 
employed as officials, contract staff or temporary staff in an EU institution, or 
whether officials and contract staff returning to the service of a national 
administration after having performed duties in an EU institution and having been 
assigned non-active status or granted leave for personal reasons during that period 
may also benefit from them. 
6 The interpretation of the provisions of the EU regulation relied on, which is 
decisive for the resolution of the dispute before the Conseil d’État (Council of 
State), raises serious difficulties. It is, accordingly, appropriate to refer the matter 
to the Court of Justice of the European Union pursuant to Article 267 of the 
Treaty on the Functioning of the European Union and, pending the ruling of that 
Court, to stay the appeal proceedings brought by DQ. 
HAS DECIDED AS FOLLOWS: 
Article 1: Proceedings on DQ’s appeal are stayed until the Court of Justice of the 
European Union has given a preliminary ruling on the following question: 
Is the benefit of the provisions of Article 11(1) of Annex VIII to the Regulation 
laying down the Staff Regulations of Officials and the Conditions of Employment 
of Other Servants of the European Communities, as amended by Council 
Regulation (EC, Euratom) No 723/2004 of 22 March 2004, reserved exclusively 
to officials and contract staff posted for the first time within a national 
administration after having been employed as officials, contract staff or temporary 
staff in an EU institution, or does that benefit also extend to officials and contract 
staff returning to the service of a national administration after having performed 
duties in an EU institution and having been assigned non-active status or granted 
leave for personal reasons during that period? 
Article 2: … [notification to the parties] 
…  
… 
… [procedural matters, composition, signatures]