Gregorio My v Office national des pensions (ONP).
Date: 2004-12-16
17. The Court observes that it is settled case-law that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based, in order to enable the Court to give appropriate replies and to give the Member States’ Governments and other interested parties the opportunity of submitting their observations in accordance with Article 23 of the Statute of the Court of Justice (see, inter alia, Joined Cases C-51/96 and C-191/97 Deliège  [2000] ECR I-2549, paragraphs 30 and 31).
24. The Court observes that, it is settled case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.  Consequently, where the questions submitted for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 59, and Case C-35/99 Arduino  [2002] ECR I-1529, paragraph 24).
25. Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia  v Novello  [1981] ECR 3045, paragraph 21).  The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the 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, Bosman , paragraph 61, and Arduino , paragraph 25).
29. As the Court has already held (Case 126/86 Giménez Zaera  [1987] ECR 3697, paragraph 11, and Joined Cases C-78/90 to C-83/90 Compagnie commerciale de l’Ouest and Others  [1992] ECR I-1847, paragraphs 17 and 18), Articles 2 and 3 EC set out general aims made explicit by other provisions of the Treaty.  They cannot be applied independently of the more specific provisions of the Treaty mentioned in the question referred.
32. Article 17 EC, whilst establishing citizenship of the Union, merely provides that citizens of the Union enjoy the rights conferred by the Treaty and are subject to the duties imposed thereby.  It cannot therefore be applied independently of the specific provisions of the Treaty which govern the rights and duties of the citizens of the Union.
33. Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to the freedom of movement for workers.  To the extent that the national court is also seeking an interpretation from the Court of the latter provision, it is appropriate to deal first with that point (see, in that regard, Case C‑100/01 Oteiza Olazabal  [2002] ECR I-10981, paragraph 26).
Article 42 EC
34. Article 42 EC confers on the Council the task of instituting a scheme allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security.  The Council has in principle fulfilled that obligation by adopting 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).
35. As the Court held in Case C-411/98 Ferlini  [2000] ECR I-8081, paragraph 41, officials of the European Communities cannot be characterised as workers within the meaning of Regulation No 1408/71 as they are not subject to national legislation on social security, as required under Article 2(1) of that regulation, which defines its scope of personal application.
36. Consequently, Mr My’s situation is not covered either by Article 42 EC or by Regulation No 1408/71.
Article 39 EC and Article 7 of Regulation No 1612/68
37. It is established case-law that an official of the European Communities has the status of a migrant worker.  A Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 39(1) EC through occupying a post within an international organisation, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement (Joined Cases 389/87 and 390/87 Echternach and Moritz  [1989] ECR 723, paragraph 11; Case C-310/91 Schmid  [1993] ECR I-3011, paragraph 20, and Ferlini , cited above, paragraph 42).
38. It follows that a worker who is a national of a Member State, such as Mr My, may not be refused the rights and social advantages which Article 39 EC and Regulation No 1612/68 afford him (see Case 152/82 Forcheri  [1983] ECR 2323, paragraph 9; Echternach and Moritz , paragraph 12; Schmid , paragraph 22; and Ferlini , paragraph 43).
40. The provisions of the Treaty relating to the free movement of workers, and particularly Article 39 EC, cannot be applied to situations which are wholly internal to a Member State (Joined Cases C-64/96 and C-65/96 Uecker and Jacquet  [1997] ECR I-3171, paragraph 16, and the case-law cited).
44. The system for the transfer of pension rights, as set out in Article 11(2) of Annex VIII to the Staff Regulations, seeks by enabling the Community scheme to be coordinated with the national schemes to facilitate movement from national employment, whether public or private, to the Community administration and thus to ensure that the Communities have the best possible chance of being able to choose qualified staff who already possess suitable experience (Case 137/80 Commission  v Belgium  [1981] ECR 2393, paragraphs 11 and 12).
45. In particular, the Court has held that, by refusing 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, a Member State might also impede the recruitment by the Community of national officials with a certain length of service, since movement from the national administration to that of the Community would entail the loss of pension rights to which they would be entitled if they had not accepted employment with the Community ( Commission  v Belgium , paragraph 19).
46. That is also the case where a Member State refuses to take into account, for the purposes of entitlement to an early retirement pension under its own scheme, periods of employment under the Community pension scheme.
47. It is plain that national legislation such as that at issue in the main proceedings is likely to impede and therefore to discourage employment within an institution of the European Union, inasmuch as, by accepting employment with such an institution, a worker who was formerly a member of a national pension scheme risks 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.
48. Such consequences cannot be accepted in the light of the duty of genuine cooperation and assistance which Member States owe the Community and which finds expression in the obligation laid down in Article 10 EC to facilitate the achievement of the Community’s tasks.