Joachim Pöpperl v Land Nordrhein-Westfalen.
Date: 2016-07-13
2


The request has been made in proceedings between Joachim Pöpperl and Land Nordrhein-Westfalen (Land of North Rhine-Westphalia, Germany) concerning the loss of retirement pension rights following resignation from a civil servant’s post with that Land in order to be employed in a Member State other than the Federal Republic of Germany.
17


The referring court notes, furthermore, that the law applicable in the Land of North Rhine-Westphalia gave Mr Pöpperl no possibility other than to give up his status of civil servant if he wanted to begin a new employment relationship in Austria. Unlike the situation when there is a change of employer in the territory of the Federal Republic of Germany, for example from one Land to another or from a Land to the federal administration, there is no possibility of being transferred or seconded to the civil service of another Member State while retaining the retirement pension rights already acquired.
22


In that regard, it should be recalled that, although Member States retain the power to organise their social security schemes, they must nonetheless, when exercising that power, observe EU law and, in particular, the provisions of the FEU Treaty on freedom of movement for workers and the right of establishment (see judgments of 1 April 2008 in Gouvernement de la Communauté française and gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 43, and of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 38).
23


The Court has consistently held that all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by EU nationals of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their Member State of origin to enter the territory of another Member State and reside there in order to pursue an economic activity there (see judgments of 15 December 1995 in Bosman, C‑415/93, EU:C:1995:463, paragraphs 94 and 95; of 1 April 2008 in Gouvernement de la Communauté française and gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 44; and of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 39).
24


While EU primary law admittedly can offer no guarantee to an insured person that moving to a Member State other than his Member State of origin will be neutral in terms of social security, in particular where sickness benefits and old-age pensions are concerned, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be to the advantage of the person concerned in terms of social protection, or not, depending on the circumstances, it is settled case-law that, where its application is less favourable, national legislation is consistent with EU law only to the extent that, in particular, it does not place the worker concerned at a disadvantage compared with those who pursue all their activities in the Member State where it applies and does not purely and simply result in the payment of social security contributions on which there is no return (see judgment of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 40 and the case-law cited).
25


Thus, the Court has repeatedly held that the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the social security advantages afforded them by the legislation of one Member State (see judgments of 1 April 2008 in Gouvernement de la Communauté française and gouvernement wallon, C‑212/06, EU:C:2008:178, paragraph 46, and of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 41).
26


Moreover, according to the Court’s case-law, Articles 45 TFEU and 48 TFEU are intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (see judgments of 30 June 2011 in da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 76, and of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 42).
28


Such legislation constitutes a restriction on freedom of movement for workers since, even though it also applies to civil servants of the Land of North Rhine-Westphalia who resign in order to work in the private sector in their Member State of origin, it is liable to prevent or deter them from leaving their Member State of origin to take up employment in another Member State. That legislation thus directly affects the access of civil servants of the Land of North Rhine-Westphalia to the employment market in Member States other than the Federal Republic of Germany and is thus such as to impede freedom of movement for workers (see, to this effect, judgments of 15 December 1995 in Bosman, C‑415/93, EU:C:1995:463, paragraphs 98 to 100 and 103, and of 21 January 2016 in Commission v Cyprus, C‑515/14, EU:C:2016:30, paragraph 47).
29


It is settled case-law that national measures which are liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment of 12 September 2013 in Konstantinides, C‑475/11, EU:C:2013:542, paragraph 50).
33


However, according to the Court’s case-law, national legislation and the various relevant rules are appropriate for securing attainment of the objective pursued only if they genuinely reflect a concern to attain that objective in a consistent and systematic manner (see, to this effect, judgments of 10 March 2009 in Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55, and of 19 May 2009 in Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 42).
34


It is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent legislative provisions satisfy those requirements (see, to this effect, judgments of 13 July 1989 in Rinner-Kühn, 171/88, EU:C:1989:328, paragraph 15; of 23 October 2003 in Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 82; and of 26 September 2013 in Ottica New Line di Accardi Vincenzo, C‑539/11, EU:C:2013:591, paragraph 48).
35


However, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (judgments of 20 March 2003 in Kutz-Bauer, C‑187/00, EU:C:2003:168, paragraph 52; of 23 October 2003 in Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 83; and of 26 September 2013 in Ottica New Line di Accardi Vincenzo, C‑539/11, EU:C:2013:591, paragraph 49).
43


In that regard, it must be borne in mind that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (see, to this effect, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 27 and the case-law cited, and of 11 November 2015 in Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 34).
44


It is true that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem (see, to this effect, judgments of 15 April 2008 in Impact, C‑268/06, EU:C:2008:223, paragraph 100, and of 15 January 2014 in Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 39).
45


If an interpretation of national law in conformity with EU law is not possible, the national court must fully apply EU law and protect rights which the latter confers on individuals, disapplying, if necessary, any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to EU law (see, to this effect, judgment of 18 December 2007 in Frigerio Luigi & C., C‑357/06, EU:C:2007:818, paragraph 28).
46


Where national law, in breach of EU law, provides that a number of groups of persons are to be treated differently, the members of the group placed at a disadvantage must be treated in the same way and made subject to the same arrangements as the other persons concerned. The arrangements applicable to members of the group placed at an advantage remain, for want of the correct application of EU law, the only valid point of reference (see, to this effect, judgments of 26 January 1999 in Terhoeve, C‑18/95, EU:C:1999:22, paragraph 57; of 22 June 2011 in Landtová, C‑399/09, EU:C:2011:415, paragraph 51; and of 19 June 2014 in Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 95).