Case C-293/03
Gregorio My
v
Office national des pensions (ONP)
(Reference for a preliminary ruling from the Tribunal du travail de Bruxelles)
(Community officials – Transfer of pension rights – Article 11 of Annex VIII to the Staff Regulations – Early retirement pension – Reckoning of periods of employment with the European Community – Article 10 EC)
Summary of the judgment
- Freedom of movement for persons – Workers – Definition – Member State national employed by an international organisation – Included – Limit – Worker who is a Member State national and spent his entire working life in that Member State
Art. 39 EC. 2. Member States – Obligations – Duty of genuine cooperation with the Community institutions – Failure to take account of periods of employment within the European Communities for the grant of an early retirement pension under a national scheme – Not permissible
(Art. 10 EC; Staff Regulations, Annex VIII, Art. 11(2))
- An official of the European Communities working in a Member State other than his State of origin has the status of a migrant worker. He 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.
The provisions of the Treaty relating to the free movement of workers, and particularly Article 39 EC, cannot, however, be applied to situations which are wholly internal to a Member State. Accordingly those provisions do not apply to a worker who has spent his entire working life in the Member State of which he is a national, first as an employer and then, up to retirement age, as an official of the European Communities.
(see paras 37, 39-40, 43)
- Article 10 EC, in conjunction with the Staff Regulations of Officials of the European Communities, must be interpreted as meaning that national legislation which does not permit years of employment completed by a Community citizen in the service of a Community institution to be taken into account for the purposes of entitlement to an early retirement pension under the national scheme is contrary to those provisions.
Such national legislation 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.
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.
(see paras 47-49, operative part)
JUDGMENT OF THE COURT (Second Chamber)16 December 2004(1)
(Community officials – Transfer of pension rights – Article 11 of Annex VIII to the Staff Regulations – Early retirement pension – Reckoning of periods of employment with the European Community – Article 10 EC)
v
THE COURT (Second Chamber),,
after hearing the Opinion of the Advocate General at the sitting on 9 September 2004,
gives the following