Office national de l'emploi v Marie-Rose Melchior.
Date: 2015-02-04
15. In its examination of the requirements that may arise from EU law as regards the taking into account of periods of activity completed in the service of a European institution established in Belgium, the cour du travail de Bruxelles, referring to the judgments in Ferlini  (C‑411/98, EU:C:2000:530, paragraph 41) and My  (C‑293/03, EU:C:2004:821, paragraph 35) and to the order in Ricci and Pisaneschi  (C‑286/09 and C‑287/09, EU:C:2010:420, paragraph 26), holds that Ms Melchior cannot be treated as a ‘worker’ within the meaning of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) or 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). It also holds that a worker who, like Ms Melchior, worked for a European institution established in Belgium and who did not work beforehand anywhere other than in that Member State is not able to rely on the provisions of the FEU Treaty guaranteeing freedom of movement for workers, as they do not apply to situations which are purely internal.
16. The cour du travail de Bruxelles observes, however, that the Court of Justice has found on various occasions that Belgian legislation on pensions did not sufficiently ensure the portability of the rights of a worker who was employed in the service of both a Belgian employer and a European institution. It cites in this regard the judgments in Commission  v Belgium (137/80, EU:C:1981:237, paragraph 19) and My  (EU:C:2004:821). It expresses doubts as to ONEM’s argument that the reasoning followed in the latter judgment is based on the existence of a specific provision concerning pensions and therefore cannot be transposed to the unemployment insurance regime, observing that the approach adopted by the Court in that judgment seems to relate to the principle of sincere cooperation. It adds that that approach has been applied in respect of not only pensions but also parental allowances and family allowances, as well as in relation to a tax advantage.
21. 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 (see inter alia, to this effect, judgments in Kristiansen , C‑92/02, EU:C:2003:652, paragraph 31, and Elchinov , C‑173/09, EU:C:2010:581, paragraph 40).
22. It should also be remembered that the Conditions of Employment, like the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), were adopted by means of a Council regulation, Regulation No 259/68, which, by virtue of the second paragraph of Article 249 EC, has general application, is binding in its entirety and is directly applicable in all Member States. It follows that, in addition to having effects within the EU administration, the Conditions of Employment are also binding on Member States in so far as their cooperation is necessary in order to give effect to those conditions (judgments in Commission  v Belgium , EU:C:1981:237, paragraphs 7 and 8; Commission  v Belgium , 186/85, EU:C:1987:208, paragraph 21; and Kristiansen , EU:C:2003:652, paragraph 32).
23. The Belgian Government explains that in Belgium the unemployment regime is founded on a principle of solidarity which entails prior payment of contributions. In its submission, the conditions governing the grant of unemployment benefit laid down by that regime do not infringe any rule of EU law and, in particular, any specific provision of the Conditions of Employment. Accordingly, it considers that the approach adopted in the judgment in My  (EU:C:2004:821) cannot be transposed to the main proceedings.
25. However, the Court held in the judgment in My  (EU:C:2004:821) that Article 10 EC, 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 (EU:C:2010:420), the Court stated that the same applies as regards entitlement to an ordinary retirement pension.
26. In so deciding, the Court did not rely on a specific provision of the Staff Regulations but held in paragraphs 45 to 48 of the judgment in My  (EU:C:2004:821), referring to the judgment in Commission  v Belgium  (EU:C:1981:237), that, like the refusal to adopt the measures necessary for the transfer to the Community pension scheme of sums due to be repaid in respect of or the actuarial equivalent of retirement pension rights acquired under the national pension scheme, as provided for by Article 11(2) of Annex VIII to the Staff Regulations, such legislation could impede the recruitment by the EU institutions of national officials with a certain length of service. The Court pointed out that such legislation was liable to discourage employment within such an institution, inasmuch as, by accepting employment with one of them, a worker who was formerly a member of a national pension scheme risked losing the right to benefit under that scheme from an old-age pension to which he would have been entitled had he not accepted that employment. It held that such consequences could not be accepted in the light of the duty of genuine 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.
27. Legislation of a Member State that does not take into account, 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 is also such as to impede the recruitment by those institutions of contract staff. As the Advocate General has observed in points 51 to 53 of his Opinion, legislation of that kind is liable to deter workers resident in that Member State from engaging in employment in an EU institution the duration of which, as limited by regulation, means that they face the prospect of having, sooner or later, to enter or re-enter the national labour market, since, owing to that employment, they may not reach the number of working days that is required by that legislation to claim benefits in the event of unemployment.
28. Such legislation may give rise to the same deterrent effect as regards the failure to treat days of unemployment which have given rise to payment of an unemployment allowance pursuant to the Conditions of Employment as working days for the purpose of eligibility for unemployment benefit in that Member State, given that days of unemployment for which benefit has been paid under the legislation of that Member State are so treated.
29. Consequently, without there being any need to examine the question referred in the light of Article 34(1) of the Charter, the answer to that question is that Article 10 EC, in conjunction with the Conditions of Employment, precludes legislation of a Member State, such as that at issue in the main proceedings, 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.
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