Aliny Wojciechowski v Office national des pensions (ONP).
Date: 2015-09-10
22. Having declared that the scheme applicable to officials and other staff of the Commission, being a scheme applicable to the staff of an institution established under public international law, is covered by Article 10a of Royal Decree No 50, and that, in view of the Court’s case-law, Ms Wojciechowski appears unable to rely on Articles 45 TFEU and 48 TFEU or on Regulation No 1408/71 or Regulation No 883/2004, the Tribunal du travail de Bruxelles (Labour Tribunal, Brussels) cites lengthy extracts from the order for reference made by the Cour du travail de Bruxelles (Lab our Court, Brussels) in the case which gave rise to the judgment in Melchior  (C‑647/13, EU:C:2015:54). Although it considers that the grounds for that decision cannot be directly transposed to the dispute before it, since different Belgian legislation is involved, and that neither is it possible to transpose the solution reached by the Court of Justice in the judgment in My  (C‑293/03, EU:C:2004:821) to that dispute, the Tribunal du travail de Bruxelles none the less considers that Article 10a of Royal Decree No 50 could impede recruitment by the EU of officials of Belgian nationality and with a certain length of service.
25. In those circumstances, it is for the Court to assess whether it has jurisdiction to rule on the interpretation sought (see, to that effect, judgments in Omalet , C‑245/09, EU:C:2010:808, paragraph 10 and the case-law cited therein, and Impacto Azul , C‑186/12, EU:C:2013:412, paragraph 17 and the case-law cited therein).
26. The Court does not have jurisdiction where it is obvious that the provision of EU law referred to it for interpretation is incapable of applying (see, to that effect, judgments in Omalet , C‑245/09, EU:C:2010:808, paragraph 11; Impacto Azul , C‑186/12, EU:C:2013:412, paragraph 18; and Caixa d’Estalvis i Pensions de Barcelona , C‑139/12, EU:C:2014:174, paragraph 41), which may, as a rule, be the case where all the facts relevant to the case in the main proceedings are confined within a single Member State (see, in particular, to that effect, judgment in Omalet , C‑245/09, EU:C:2010:808, paragraphs 12 to 15 and the case-law cited therein).
27. By its question, the referring court is asking the Court, in particular, whether the principle of sincere cooperation laid down in Article 4(3) TEU precludes national legislation, such as that at issue in the main proceedings, which may give rise to the reduction or refusal of a retirement pension payable to an employed person by virtue of the service performed, in accordance with the legislation of that Member State, on the ground that that person had also subsequently worked within an EU institution. In this context, it raises the issue, in particular, of whether it is possible to apply the Court’s case-law stemming from the judgment in My  (C‑293/03, EU:C:2004:821) to the case before it in the main proceedings.
29. Moreover, the fact that, according to the Belgian Government, the situation at issue in the main proceedings is not comparable to those which were at issue in the cases which gave rise to the judgments in My (C‑293/03, EU:C:2004:821) and Melchior (C‑647/13, EU:C:2015:54) and, as a result, the principles identified by the Court in those judgments are not applicable to the facts of the case in the main proceedings relates to the substantive analysis of the question referred and consequently has no bearing on the Court’s jurisdiction to answer that question.
32. According to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments in Commune de Mesquer , C‑188/07, EU:C:2008:359, paragraph 30 and the case-law cited therein, and Verder LabTec , C‑657/13, EU:C:2015:331, paragraph 29).
35. It should be remembered that EU law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. Nevertheless, the Member States must comply with EU law when exercising that power (judgment in Melchior , C‑647/13, EU:C:2015:54, paragraph 21 and the case-law cited therein), which includes the principles identified by the Court in its case-law relating to the interpretation of the principle of sincere cooperation in conjunction with the Staff Regulations.
36. In this connection, the Court has already held that the Staff Regulations were adopted by means of a Council regulation, Regulation No 259/68, which, by virtue of the second paragraph of Article 288 TFEU, has general application, is binding in its entirety and is directly applicable in all Member States and that it follows that, in addition to having effects within the EU administration, the Staff Regulations are also binding on Member States in so far as their cooperation is necessary in order to give effect to those regulations (see, to that effect, judgments in Commission  v Belgium , 137/80, EU:C:1981:237, paragraphs 7 and 8, and Commission  v Belgium , 186/85, EU:C:1987:208, paragraph 21).
37. Furthermore, the Court has already held in the judgment in My  (C‑293/03, EU:C:2004:821) that the principle of sincere cooperation laid down in Article 10 EC — which now finds expression in Article 4(3) TEU — in conjunction with the Staff Regulations, must be interpreted as precluding national legislation which does not permit years of employment completed by an EU national in the service of an EU institution to be taken into account for the purposes of entitlement to an early retirement pension under the national scheme. In the order in Ricci and Pisaneschi (C‑286/09 and C‑287/09, EU:C:2010:420), the Court stated that the same applies as regards entitlement to an ordinary retirement pension.
38. In so deciding, the Court held, in paragraphs 45 to 47 of the judgment in My  (C‑293/03, EU:C:2004:821) and in paragraphs 29 to 32 of the order in Ricci and Pisaneschi  (C‑286/09 and C‑287/09, EU:C:2010:420), that the legislation at issue in the cases which gave rise to that judgment and that order could impede the recruitment by the EU institutions or bodies of national officials with a certain length of service.
40. It held that such consequences could not be accepted in the light of the duty of sincere cooperation and assistance which Member States owe the European Union and which finds expression in the obligation laid down in Article 10 EC to facilitate the achievement of its tasks (see judgment in My , C‑293/03, EU:C:2004:821, paragraph 48, and order in Ricci and Pisaneschi , C‑286/09 and C‑287/09, EU:C:2010:420, paragraph 33).
41. In paragraph 29 of the judgment in Melchior  (C‑647/13, EU:C:2015:54) the Court, in the same way, held that Article 10 EC, in conjunction with the Conditions of Employment of Other Servants of the European Communities (laid down by Regulation No 259/68, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1)), which, like the Staff Regulations, are binding on Member States in so far as their cooperation is necessary in order to give effect to those conditions (judgment in Melchior , C‑647/13, EU:C:2015:54, paragraph 22 and the case-law cited therein), precludes legislation of a Member State which is interpreted as meaning that, in relation to eligibility for unemployment benefit, periods of work completed as a member of the contract staff in an EU institution established in that Member State are not taken into account and days of unemployment which have given rise to payment of an unemployment allowance pursuant to the Conditions of Employment are not treated as working days although days of unemployment for which benefit has been paid under the legislation of that Member State are so treated.
42. The Court, in so deciding, also relied upon the impediment which might be caused by the legislation at issue in that case to the recruitment by the EU institutions, as members of the contract staff, of workers resident in the Member State in which the institution concerned is established (see judgment in Melchior , C‑647/13, EU:C:2015:54, paragraphs 27 and 28).
46. Admittedly, as the Belgian Government has pointed out, in the cases which gave rise to the judgments in My  (C‑293/03, EU:C:2004:821) and Melchior (C‑647/13, EU:C:2015:54) and the order in Ricci and Pisaneschi (C‑286/09 and C‑287/09, EU:C:2010:420), the periods of work completed in the service of the EU institutions or bodies were not taken into account in order to assess whether the persons concerned were entitled to the benefits provided for by the social security scheme of the Member State concerned which they could have claimed had, during those periods, they been a member of that scheme, whereas, in the case in the main proceedings, the period of work completed by Ms Wojciechowski in the service of the Commission was indeed taken into account in order to calculate her retirement pension as an employed person from the Belgian scheme.
52. As is apparent from the wording of that provision, it merely lays down an option which every official is free to decide whether or not to exercise. Consequently, an official’s decision not to exercise that option cannot result in the loss of his rights acquired by virtue of his contributions to the national social security scheme of which he was a member before entering the service of the European Union without changing that option into an obligation, which would run counter to the unequivocal wording of that provision and therefore cannot be allowed.