OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 11 June 2015 (1)
Case C‑408/14
Aliny Wojciechowski
v
Office national des pensions (ONP)
(Request for a preliminary ruling
from the Tribunal du travail de Bruxelles (Belgium))
(Retired EU official — Pension rights — Concept of the occupational record unit — Aggregation of pension rights — Principle of sincere cooperation — Charter of Fundamental Rights of the European Union)
1. This request for a preliminary ruling concerns the interpretation of the principle of sincere cooperation between the European Union and the Member States and of Article 34(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The request has been made in the context of proceedings between Ms Wojciechowski, a former EU official, and the Office national des pensions (the Belgian National Pensions Office; ‘the ONP’) in relation to the ONP’s refusal to pay Ms Wojciechowski a retirement pension.
I – Legislative framework
A – EU law
2. The Staff Regulations of Officials of the European Union, established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, (2) as amended by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010, (3) (‘the Staff Regulations’) provide, in Article 11(2) of Annex VIII, entitled ‘Pension scheme’, as follows:
‘An official who enters the service of the Union after:
…
- pursuing an activity in an employed or self-employed capacity;
shall be entitled, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Union the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of such service or activities.
…’
B – Belgian law
3. Royal Decree No 50 of 24 October 1967 on the retirement and survival pension for employed persons, (4) in the version applicable to the facts of the case in the main proceedings (‘Royal Decree No 50’), provides in the first and fourth paragraphs of Article 10a: (5)
‘Where an employed person is entitled to claim a retirement pension under the present Decree and a retirement pension or benefit in lieu under one or more other schemes and where the total of the fractions representing the size of each of those pensions exceeds one [occupational record] unit, the occupational record that is taken into consideration in order to calculate the retirement pension [under the present Decree] shall be reduced by the number of years needed in order to bring that total down to one [occupational record] unit.
…
For the application of the present article, the term “other scheme” is to be understood as meaning any other Belgian scheme for retirement and survival pensions, with the exception of that for self-employed persons, and any comparable scheme in another State or any scheme applicable to the staff of an institution established under public international law.’
4. Under Article 3 of the Royal Decree of 14 October 1983 implementing Article 10a of Royal Decree No 50 of 24 October 1967 on the retirement and survival pension for employed persons (6) (‘the Royal Decree of 14 October 1983’), the number of years to be deducted pursuant to Article 10a referred to above may not exceed 15, nor the result rounded up to the next unit, obtained by dividing the difference between the converted amount (7) and the standard amount (8) by an amount equal to 10% of the said standard amount.
5. The reduction in the occupational record is to be applied first to the least advantageous years in terms of pension entitlement. (9)
II – The dispute in the main proceedings and the question referred for a preliminary ruling
6. According to the order for reference, Ms Wojciechowski, a Belgian national, worked as an employee in Belgium from 1965 to 1977 and subsequently as an official of the European Commission from 17 October 1977 to 30 November 2011.
7. In May 2012, the ONP, of its own motion, examined Ms Wojciechowski’s entitlement to a retirement pension as an employed person since she was to reach the Belgian statutory pensionable age (65) on 26 April 2013.
8. On the initial information form, completed on 21 May 2012, Ms Wojciechowski stated that her occupational record in Belgium was that of an employed person from 1965 to 1977 and that she had been in receipt of a pension from the Commission since 1 December 2011. She also stated that she had ceased to be in gainful employment from that date.
9. By letter of 12 June 2012, the ONP asked the Commission whether Ms Wojciechowski fulfilled the conditions to receive a retirement pension under the European Union scheme. By letter of 17 August 2012, the Commission informed the ONP that it had sent its reply to Ms Wojciechowski, as was its administrative practice.
10. By letter of 24 August 2012, Ms Wojciechowski sent to the ONP the confirmation received from the Commission, which showed that she had been in receipt of a pension from the Commission since 1 December 2011, calculated on the basis of the contributions that she had made to the Community pension scheme for the period from 17 October 1977 to 30 November 2011. She did not inform the ONP of the amount of that pension. In that same letter, Ms Wojciechowski also confirmed to the ONP that she had not exercised her option under Article 11(2) of Annex VIII to the Staff Regulations to have paid to the European Union the capital value of her pension rights acquired by virtue of her activity in an employed capacity.
11. By decision of 11 September 2012, the ONP informed Ms Wojciechowski as follows, by reference to Article 10a of Royal Decree No 50:
‘In addition to your occupational record, you have an occupational record under another scheme (public services, international organisation). However, in aggregating pension schemes, you may not exceed the occupational record unit. This means that your overall occupational record may not consist of more than 45 years. … your occupational record must be reduced by 10 years …’
12. It is apparent from that decision that the ONP found that Ms Wojciechowski had aggregated 13/45ths through her occupational record as an employed person and 45/45ths through an occupational record under another scheme. Pursuant to the calculation rules in force, the ONP concluded that Ms Wojciechowski was entitled, by virtue of her occupational record as an employed person in Belgium, to a retirement pension of EUR 83.05, equivalent to an occupational record as an employed person of 3/45ths. (10)
13. By email of 13 November 2012, the ONP explained to Ms Wojciechowski that, since it did not know the amount of the pension paid by the Commission, it had estimated that, after 35 years of an occupational record with the Commission, the fraction representing the size of the pension to be taken into consideration for the purposes of Article 10a was 70/70ths, or 45/45ths (given that for every year worked, a European official who began service before 1 May 2004 acquires 2% per annum by way of pension, by reference to the last working salary paid, and that the maximum percentage that can be acquired is limited to 70% of the official’s basic salary), and that the occupational record unit was therefore exceeded by 13 years.
14. As regards the calculation of the reduction in pension due to this limit being exceeded, the ONP stated in the same email that, when the amount of the pension received from the other scheme is not known, the calculation is made on the basis of the converted amount under the other scheme, which is deemed to be, until proven otherwise, ‘equal to 2.5 times the standard amount of EUR 6 506.98 at an index of 138.01’. (11) As a result, according to the ONP, not a single year of activity as an employed person could be taken into account, despite what it had stated in the decision of 11 September 2012. The ONP did not send a new decision to Ms Wojciechowski, but ceased to pay her pension with effect from July 2013.
15. By application lodged on 11 December 2012, Ms Wojciechowski applied to the Tribunal du travail de Bruxelles (Labour Tribunal, Brussels, Belgium) for an order annulling the decision of 11 September 2012 and requiring the ONP to pay her a retirement pension calculated on the basis of 13/45ths, being approximately EUR 367.07 per month. (12) In support of her application, Ms Wojciechowski submitted, in particular, that if Council Regulation (EEC) No 1408/71 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 (13) 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 (14) was applicable to her situation, then, following the Court’s case-law, (15) it would be impossible for the ONP to apply the principle of the occupational record unit when calculating her Belgian pension. In addition, she considers that the ONP made an error since her occupational record in the institutions lasted 34 years and 11 months, that is, 35 years, not 45 years. In that respect, she queries the legal basis on which the ONP theoretically set the amount of her European pension.
16. The ONP submits that pensions from the EU institutions are not covered by EU legislation in relation to aggregation and that Regulations Nos 1408/71 and 883/2004 are not applicable. The ONP states also that the constitutionality of the concept of the occupational record unit has been recognised by the Cour de Cassation (Belgian Court of Cassation) and considers that it acted in accordance with the precautionary principle in applying Article 10a of Royal Decree No 50 on the basis of theoretical data, in the absence of the information requested from the Commission.
17. The referring court explains that the concept of the occupational record unit embodies the residual nature of the pension scheme for employed persons compared to other schemes and requires that all recognised occupational records, with the exception of that for self-employed persons, should be added to those of the employed person and that, where the total of the fractions expressing the size of each of the pensions exceeds one unit, the occupational record taken into consideration in order to calculate the retirement pension for employed persons is to be reduced by the number of years needed to bring that total down to one unit. As the Cour constitutionnelle (Belgian Constitutional Court) held in a judgment of 20 September 2011, Article 10a aims to ensure that all workers with a mixed occupational record are treated on an equal footing, whilst also seeking to keep expenditure in the pension sector under control.
18. 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 cites lengthy extracts from the order for reference made by the Cour du travail de Bruxelles (Labour Court, Brussels) in the case of Melchior (C‑647/13, EU:C:2015:54). Although it considers that the grounds for that decision cannot be directly transposed to the present dispute, since different Belgian legislation is involved, and that neither is it possible to transpose the solution reached in the judgment in My (C‑293/03, EU:C:2004:821) to the dispute before it, 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.
19. In those circumstances, the Tribunal du travail de Bruxelles decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘On a proper construction of the principle of sincere cooperation and Article 4(3) TEU, on the one hand, and of Article 34(1) of [the Charter], on the other, is a Member State precluded from reducing or refusing a retirement pension payable to an employed person by virtue of the service performed, in accordance with the legislation of that Member State, where the total number of years of the occupational record acquired by him in that State and within the EU institutions exceeds the “occupational record unit” of 45 years referred to in Article 10a of [Royal Decree No 50]?’
III – Procedure before the Court
20. The Belgian Government and the Commission submitted written observations in the present case in accordance with the second paragraph of Article 23 of the Statute of the Court of Justice. Having declined to submit written observations, Ms Wojciechowski submitted a request for a hearing to be held. That request was accepted under Article 76(3) of the Rules of Procedure of the Court of Justice.
21. By order of 13 March 2015, the Court accepted Ms Wojciechowski’s application for legal aid.
22. Ms Wojciechowski, the Belgian Government and the Commission presented oral argument at the hearing on 7 May 2015.
IV – The question referred
A – The jurisdiction of the Court and the admissibility of the question referred
1. The jurisdiction of the Court
(a) Arguments of the Belgian Government
23. The Belgian Government primarily disputes the jurisdiction of the Court to hear the question referred on the basis that the case in the main proceedings has no connection with EU law. It maintains, firstly, that Ms Wojciechowski’s situation is a purely internal one since it does not relate either to primary law on the free movement of workers or to Regulation No 1408/71 or Regulation No 883/2004. Secondly, the Belgian Government maintains that the dispute in the main proceedings is not a matter of the refusal or reduction in the retirement pension which Ms Wojciechowski can claim for her occupational record within the EU, nor of the ONP’s refusal to take into consideration the years of her occupational record within an institution in determining her retirement pension under the Belgian system, since that occupational record was indeed taken into consideration. The principle of sincere cooperation enshrined in Article 4(3) TEU, which creates a reciprocal obligation between the Union and its Member States, is not applicable to the present case, which cannot be compared to the case of Commission v Belgium (137/80, EU:C:1981:237), nor to the case of My (C‑293/03, EU:C:2004:821).
24. Finally, according to the Belgian Government, Article 34 of the Charter is not applicable to the present case either, firstly, since that provision reflects a simple principle and not a right for the purposes of Article 51(1) of the Charter and, secondly, since Article 10a of Royal Decree No 50 cannot be considered as a provision implementing EU law.
(b) Analysis
25. According to settled case-law, an official of the European Union has the status of ‘worker’ within the meaning of Article 45(1) TFEU provided that he has exercised his right of free movement. (16) The Court has stated in this regard that a period of employment in an international civil service such as that of the European Union cannot be equated to a period spent in the civil service of another Member State and cannot therefore, in itself, create a link to one of the situations covered by that treaty provision. (17)
26. In the present case, it is apparent from the order for reference and from the file that Ms Wojciechowski, who is of Belgian nationality, has always resided and worked in Belgium, (18) first as a private sector employee and then in the service of the Commission. During the course of her working life she never acquired the status of migrant worker. As a result, her situation, which remains a purely internal one, is not covered by Article 45(1) TFEU. (19)
27. Moreover, as rightly observed by the referring court and by the Belgian Government, Ms Wojciechowski’s situation during the period when she was employed by the Commission also does not fall within the scope of either Regulation No 1408/71 or Regulation No 883/2004. The Court has stated in this regard that ‘officials [of the European Union] 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’. (20)
28. Furthermore, the Court has already held that the situation of an official does not fall within the scope of EU law simply because of the existence of an employment relationship, past or present, with the European Union. (21)
29. Therefore, the mere fact that Ms Wojciechowski has the status of a retired official does not automatically lead to the conclusion that there is a connection with EU law. In that respect, it should be noted that, even if, on that basis, she was covered by the Staff Regulations, that is, by a measure ‘binding in its entirety and directly applicable in all Member States’, (22) that binds Member States ‘in so far as their cooperation is necessary in order to give effect to those measures’, (23) it is none the less common ground that no provision of the Staff Regulations directly governs the facts at issue in the main proceedings.
30. In particular, no provision of the Staff Regulations can be taken to mean that Member States are prohibited from taking account of the pension received by a former EU official from the European Union when applying a rule of national law which results in a cap on the pension rights that the official can claim under the legislation of that Member State. By contrast, it is established that EU law does not detract from the power of the Member States to organise their social security systems and that, even though, when exercising that power, Member States must comply with EU law, (24) it remains the case that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine both the conditions concerning the right or duty to be insured with a social security scheme and the conditions for entitlement to benefits. (25)
31. It could admittedly be maintained that the effect of the Belgian legislation is to detract from the option to transfer pension rights as provided for in Article 11(2) of Annex VIII to the Staff Regulations, since, if that option is not exercised, the pension rights acquired under the Belgian scheme prior to entry into service with the EU can be lost, thus effectively transforming the option into an obligation, in breach of the clear wording of that provision. However, in the case in the main proceedings, Ms Wojciechowski’s complaint is that her entitlement to a retirement pension under the Belgian scheme has not been recognised for the periods during which she contributed to that scheme and not that there is an obstacle to the functioning of the transfer mechanism set out in that provision of the Staff Regulations, the only aim of which is to allow for a conversion of the capital acquired under the national scheme into annual payments under the EU scheme, which, moreover, Ms Wojciechowski expressly waived her right to do.
32. Having said that, it should be noted that, in the first part of the question referred, the referring court raises the issue of the applicability to Ms Wojciechowski’s situation of the Court’s case-law, beginning with the judgments in Commission v Belgium (137/80, EU:C:1981:237) and My (C‑293/03, EU:C:2004:821) and recently confirmed by the judgment in Melchior (C‑647/13, EU:C:2015:54), according to which 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 (now Article 4(3) TEU) to facilitate the achievement of its tasks conflicts with national legislation liable to discourage employment within an EU institution, impeding the recruitment by that institution of national officials. (26)
33. According to the referring court, the legislation at issue in the main proceedings and the way it was applied by the ONP in the case of Ms Wojciechowski are liable to infringe that duty of sincere cooperation and assistance, as interpreted and applied by the Court in that case-law.
34. In those circumstances, the jurisdiction of the Court to be able to answer that part of the question referred seems to me indisputable. That jurisdiction was, moreover, implicitly accepted in the judgment in Melchior (C‑647/13, EU:C:2015:54), in which the Court answered a similar question raised by the Cour du travail de Bruxelles, concerning the application of the Belgian legislation on unemployment benefit in proceedings between the ONP and a former member of EU contract staff, whose situation, like that of Ms Wojciechowski, did not have any other connection with EU law. (27)
35. The Belgian Government’s argument that the dispute in the main proceedings differs from those in Commission v Belgium (137/80, EU:C:1981:237) and My (C‑293/03, EU:C:2004:821), meaning that the principles identified by the Court in the judgments in those cases cannot be transposed to Ms Wojciechowski’s situation, goes to the substance of the question asked by the referring court and does not affect the Court’s jurisdiction to answer that question.
36. As regards the second part of the question referred, relating to interpretation of Article 34 of the Charter, it is my view that, in the absence of other connecting factors to EU law, applicability of the Charter and, therefore, the Court’s jurisdiction to answer that part of the question would only be established if the Court’s case-law cited in point 32 above were applicable to Ms Wojciechowski’s situation. (28)
2. Admissibility of the question referred for a preliminary ruling
37. In the event that the Court finds it has jurisdiction, the Belgian Government disputes the admissibility of the question referred, on the basis that it is purely hypothetical, since the referring court is basing its request to the Court on the hypothesis, unproven on the facts and extraneous to the dispute in the main proceedings, 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’.
38. In that regard, I will simply note that the case-law referred to in point 32 above is based, in essence, on the finding of the risk of a barrier to the European Union achieving its tasks due to the application of national legislation liable to discourage access by certain categories of worker to the European civil service. In forming the hypothesis disputed by the Belgian Government, the referring court, far from introducing an element extraneous to the facts of the case, is simply raising the issue, and asking the Court, whether such a risk exists in the case in the main proceedings and whether the conditions are met for the case-law referred to above to be applicable.
B – Substance
1. First part of the question referred for a preliminary ruling: the principle of sincere cooperation
39. In the first part of the question referred, the referring court wishes to know whether the principle of sincere cooperation precludes a Member State from reducing or refusing a retirement pension payable to an employed person by virtue of the service performed, in accordance with the legislation of that Member State, where the total number of years worked in that Member State and within the European institutions exceeds the occupational record unit referred to in the national legislation.
(a) Observations submitted before the Court
40. The Belgian Government submits that the aspect of the referring court’s question concerning the interpretation of Article 4(3) TEU requires a negative response. According to the Belgian Government, the principle of sincere cooperation, as interpreted by the Court in the judgments mentioned in point 32 above, is not applicable to the dispute in the main proceedings, which does not concern a refusal by the national authorities to take into consideration the years spent by a worker employed within the EU in determining that worker’s retirement pension under the Belgian scheme. Indeed, those years were taken into account in Ms Wojciechowski’s case. Article 4(3) TEU creates a reciprocal duty of sincere cooperation between the EU and the Member States.
41. The Belgian Government also submits that, even assuming that the principle of sincere cooperation is applicable to the dispute in the main proceedings, the rule on the occupational record unit set out by the Belgian legislation does not infringe that principle. In that regard, the Belgian Government comments that the principle cannot result in favouring those persons who were employees before acquiring a whole occupational record as an EU official over other workers, in particular those with a mixed occupational record. The rule on the occupational record unit is based on the legitimate aim of keeping expenditure in the pension sector under control and on a principle of equality for workers with a mixed occupational record. According to settled case-law of the Court, EU law does not detract from the power of Member States to organise their social security systems and, in the absence of harmonisation at EU level, it is for the Member States to determine both the conditions concerning the right or duty to be insured with a social security scheme and the conditions for entitlement to benefits.
42. The Commission observes that if Regulation No 883/2004 had been applicable to the dispute in the main proceedings, the Belgian authorities would not have been able to invoke the rule on the occupational record unit against Ms Wojciechowski as this would have detracted from the principle of aggregation of different periods of insurance and would have been contrary to the spirit of the anti-overlapping rules provided for in that regulation. (29) According to the Commission, the same solution must be reached under the duty of sincere cooperation to which Belgium is subject pursuant to Article 4(3) TEU. In that regard, the Commission states, first, that the rule on the occupational work record is liable to hinder and, therefore, to discourage, employment within an EU institution to the extent that, by accepting employment with such an institution, the worker would be deprived of protection against the anti-overlapping rule in the Belgian legislation, a rule which could not be invoked against him had he exercised his right of free circulation in another Member State. Secondly, the Commission points out that, according to the case-law, the objective for EU institutions to recruit qualified personnel, an objective in the fulfilment of which Member States support the EU through the principle of sincere cooperation, creates a fundamental guiding principle for the Court’s case-law, namely the principle that the social security rights of an individual who has held a national post in a Member State should not be adversely affected as a result of that individual working in the European institutions. According to the Commission, the differences between the case in the main proceedings and the case in My (C‑293/03, EU:C:2004:821) do not lead to a different conclusion from that drawn by the Court in that judgment. In addition, the application of Article 10a of Royal Decree No 50 in the present case would mean that Ms Wojciechowski paid social security contributions into funds lost in the Belgian pension scheme.
43. At the hearing, the Commission subsequently clarified its position, stating that the situation of an EU official must be equated to that of a migrant worker, even when he has not made use of his right of free movement. The case-law referred to in point 32 above was developed by the Court with the aim of avoiding possible obstacles to the application to EU officials of the principles arising from the treaty rules on the free movement of workers.
44. Relying, in particular, on the judgment in Melchior (C‑647/13, EU:C:2015:54), and on the Opinion of Advocate General Cruz Villalón in Časta (C‑166/12, EU:C:2013:443), Ms Wojciechowski submitted at the hearing that Article 4(3) TEU, in conjunction with the Staff Regulations, enshrines a principle that the continuity of social benefits acquired by an EU official under a national social security scheme must be guaranteed.
(b) Analysis
45. The Belgian Government’s argument concerning the reciprocal nature of the principle of sincere cooperation must be dismissed at the outset. If I have understood that argument correctly, the Belgian Government considers that, due to that reciprocity, a Member State cannot be challenged for both failing to take account of a worker’s period of employment in an EU institution in order to establish his social rights under the national scheme, as in My (C‑293/03, EU:C:2004:821) and Melchior (C‑647/13, EU:C:2015:54) and of proceeding to take it into account, as in the dispute in the main proceedings.
46. It is, admittedly, indisputable that the principle of sincere cooperation contained in Article 4(3) TEU, as expressly set out in the first subparagraph of that article, (30) involves a mutual duty between the Union and its Member States. Accordingly, this principle can be infringed when there is no assurance of such reciprocity, in particular when a duty of cooperation falls unilaterally on the Member States or when the content of that duty is defined in a way that encroaches on powers reserved to the Member States.
47. That is not, however, the case in the circumstances in the main proceedings.
48. In that regard, I would comment, first, that the case-law cited in point 32 above relates, in principle, to all national legislation or practice which, by failing to ensure the continuity of social rights for workers who have acquired part of their occupational record within an EU institution, has the effect of discouraging entry into the service of such an institution and, therefore, of impeding the European Union’s ability to recruit staff. Since such national legislation or practice is assessed purely on its effects, it follows that that case-law is likely to catch both the refusal by the authorities of a Member State to take into account the periods that a worker has spent as an official of an EU institution for the purposes of an entitlement to a right under the social security scheme of that State and the taking into account of those same periods in order to reduce or even eliminate the rights that the worker has acquired under that scheme. (31) That conclusion follows from the underlying reasoning behind the case-law cited in point 32 above and should not be considered as contrary to the reciprocal nature of the duty of sincere cooperation.
49. Secondly, even if, as the Belgian Government observes, it is true 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, when exercising that power the Member States must nevertheless comply with EU law, (32) including the principles extracted by the Court, in the case-law cited in point 32 above, from the principle of sincere cooperation in conjunction with the Staff Regulations.
50. Similarly, I am not convinced that the Commission’s theory that parallel solutions must be extracted from the treaty provisions on the free movement of workers and the provisions of Regulation No 883/2004, on the one hand, and from the Court’s case-law on the application of the principle of sincere cooperation referred to in point 32 above, on the other hand. (33)
51. First, as the Belgian Government rightly recalled at the hearing, in the judgment in My (C‑293/03, EU:C:2004:821, paragraph 42), the Court expressly ruled out the possibility that the period of employment in an international civil service such as that of the European Union should be equated to a period spent in the civil service of another Member State for the purposes of applying Article 45 TFEU, thereby clearly distinguishing the situation of a migrant worker from that of an official who has not exercised his right to freedom of movement.
52. Secondly, as I set out in point 27 above, it is settled case-law that the situation of European Union officials does not fall within the regulations adopted on the basis of Article 48 TFEU aiming to coordinate Member States’ legislation in the field of social security, even when those officials have exercised their right to freedom of movement.
53. Thirdly, as the Court stated in the judgments in Commission v Luxembourg (315/85, EU:C:1987:569, paragraph 21) and Časta (C‑166/12, EU:C:2013:792, paragraph 30), Article 11(2) of Annex VIII to the Staff Regulations is not intended to harmonise, nor to coordinate, the various national provisions in the field of pensions.
54. Fourthly, in establishing the principle that a Member State which adopts legislation liable to discourage the exercise of employment within an EU institution infringes its duty of sincere cooperation, read in conjunction with the provisions of the Staff Regulations, the case-law referred to in point 32 above aims to eliminate the obstacles that such legislation could create to the recruitment of staff by the European Union pursuant to the objective set out in the first paragraph of Article 27 of the Staff Regulations. (34) Therefore, in view of its ratio, applying that case-law does not obviate the need to examine whether the legislation in question is actually likely to ‘impede’ such recruitment. (35)
55. That being the case, it is necessary to determine whether the legislation at issue in the main proceedings is liable to discourage employment within an EU institution in accordance with the case-law referred to in point 32 above.
56. I would reiterate, in that regard, that the Court has already held that national legislation likely to impede the recruitment by an EU institution of workers with a certain length of service, (36) and national legislation liable to impede the recruitment by such an institution of contract staff, (37) is contrary to the principle of sincere cooperation taken in conjunction with the provisions of the Staff Regulations.
57. In the main proceedings that gave rise to those judgments, the periods of work in the service of the EU institutions had not been taken into account for the purposes of entitlement to the benefits under the social security scheme of the Member State in question to which the individual concerned would have been entitled had he been a member of that scheme during those periods. In the case of the present reference for a preliminary ruling, by contrast, Ms Wojciechowski’s occupational record within the EU institutions was indeed taken into account in order to calculate her Belgian old-age pension. That circumstance alone, however, is not sufficient to justify a different solution, when taking it into account led to the same result of reducing or eliminating the pension rights which Ms Wojciechowski would have been able to claim under the Belgian system had she not worked for an EU institution.
58. The prospect of losing such benefits is, in principle, liable to dissuade a worker with a certain length of service under the Belgian pension scheme from accepting employment with an EU institution or to encourage him to leave his position there prior to acquiring a whole occupational record. Therefore, the legislation at issue in the main proceedings infringes the principle of sincere cooperation in conjunction with the Staff Regulations in the same way as the legislation at issue in the cases of My (C‑293/03, EU:C:2004:821) and Ricci and Pisaneschi (C‑286/09 and C‑287/09, EU:C:2010:420).
59. It should be noted, however, that it is not the application per se of the rule on the occupational record unit under Article 10a of Royal Decree No 50 that caused the loss of all the pension rights which Ms Wojciechowski would have been able to claim if she had remained a member of the Belgian scheme for employed persons for the whole of her occupational record, but rather the way in which the ONP calculated the fraction representing the size of her pension from the European Union, in equating an occupational record of 35 years in an EU institution with a whole occupational record (45/45ths) under the Belgian scheme. In fact, Ms Wojciechowski’s pension rights under the Belgian scheme would not have been affected at all if the ONP had regarded the 35 years that she spent in the service of the Commission to be equivalent to a fraction of 35/45ths and if it had therefore concluded that her overall occupational record consisted of 48/45ths, so that it would exceed the occupational record unit by only three years. Consequently, it is not the rule on the occupational record unit that infringes the principle of sincere cooperation in conjunction with the Staff Regulations, but the method used by the Belgian authorities to calculate how the Belgian pension corresponds to the EU pension.
60. At the hearing, the Belgian Government placed particular emphasis on the option that an official entering the service of the European Union has pursuant to Article 11(2) of Annex VIII to the Staff Regulations, after establishment but before becoming eligible for payment of a retirement pension within the meaning of Article 77 of the Staff Regulations, to have paid to the Union the capital value, updated to the date of the actual transfer, of pension rights acquired by virtue of his previous activities. The Belgian Government maintains that it is Ms Wojciechowski’s failure to exercise that option which led to the loss of her pension rights under the Belgian scheme.
61. In that regard, it is true, as the Belgian Government also points out, that, in the judgment in Commission v Belgium (137/80, EU:C:1981:237), the Court stated that, by establishing for the benefit of officials a system for the transfer of pension rights, Article 11(2) of Annex VIII to the Staff Regulations ‘was intended to facilitate movement from national employment, whether public or private, to the Community administration and thus ensure that the Communities have the best possible chance of being able to choose qualified staff who already possess suitable experience’. (38) However, the exercise of that option only permits the conversion of contribution periods to a national scheme into annual payments under the European Union pension scheme. As a result, in the case of an official who, like Ms Wojciechowski, contributed over a significant number of years to the national pension scheme prior to acquiring a whole occupational record in an EU institution, while such a transfer certainly gives her the advantage of attaining at an earlier date the maximum level of old-age pension from the European Union, it denies her the possibility of obtaining, in addition, a pension under the national scheme based on the contributions she made to that scheme. Therefore, although it facilitates movement from national employment to employment within the European Union, the option to make that transfer does not eliminate the resulting disadvantages for such an official of the application of the legislation at issue in the main proceedings. In addition, as the Commission rightly observed at the hearing, Article 11(2) of Annex VIII to the Staff Regulations simply provides the official with an option and one cannot impute to the non-exercise of that option the loss of rights acquired by the official further to the contributions made to the national social security scheme.
62. On the basis of all the above reasoning, I consider that the answer to the question referred by the Tribunal du travail de Bruxelles for a preliminary ruling in as far as it relates to Article 4(3) TEU should be that that article, in conjunction with the Staff Regulations, precludes legislation of a Member State, such as that at issue in the main proceedings, which provides for the retirement pension payable to an employed person by virtue of contributions made in accordance with the legislation of that Member State to be reduced or even eliminated where the total number of years of the occupational record acquired by him in that Member State and as an EU official posted in that State exceeds the ‘occupational record unit’, in so far as, owing to the method used to calculate the fraction representing the size of the pension payable by the EU, that reduction is greater than it would have been had he acquired the whole of his occupational record as an employed person in the Member State in question.
63. Turning to the Commission’s objection relating to the ability of Ms Wojciechowski to invoke, against the Belgian authorities, the obligation on Member States, arising from the principle of sincere cooperation in conjunction with the Staff Regulations, to facilitate the European Union achieving its task by not discouraging employment in an EU institution by the application of their social security legislation, I would point out that in the judgments in My (C‑293/03, EU:C:2004:821) and Melchior (C‑647/13, EU:C:2015:54), the Court implicitly recognised that such an obligation is capable of producing direct legal effect as between Member States and individuals. I also refer to footnote 26 of my Opinion in Melchior (C‑647/13, EU:C:2014:2301).
2. Second part of the question referred for a preliminary ruling: Article 34 of the Charter
64. In view of my proposed answer to the question referred for a preliminary ruling in so far as the question concerns the principle of sincere cooperation, there is no point in also examining the question in the light of Article 34(1) of the Charter.
65. In any case, even if the Court should hold, contrary to what is suggested in this Opinion, that that principle is not applicable to the main proceedings, the Charter would not be applicable either. It is settled case-law that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. (39) As the Court stated in the judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105), situations cannot exist which are covered by EU law without those fundamental rights being applicable. The applicability of EU law therefore entails applicability of the fundamental rights guaranteed by the Charter. (40) Where, on the other hand, a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction. (41) In the present case, it is common ground that the national legislation at issue in the main proceedings, in defining the rules for calculating the old-age pension for employed persons, does not implement secondary EU legislation. In addition, it is clear from the above reasoning that Ms Wojciechowski’s legal situation is purely domestic and is not covered directly by a provision of the Staff Regulations. (42) Thus, it is only if the Court should, as I suggest, find Article 4(3) TEU, read in conjunction with the provisions of the Staff Regulations, applicable to the dispute in the main proceedings that Ms Wojciechowski’s situation would be governed by EU law and the Charter would therefore be applicable.
66. Finally, in the event that the Court should hold that, as the Commission maintains, that article is applicable to the dispute in the main proceedings but cannot be invoked by Ms Wojciechowski, it follows from the judgment in Association de médiation sociale (C‑176/12, EU:C:2014:2) that the Charter would still be applicable. (43) However, I would point out that, in that same judgment, the Court, in contrast to its judgment in Kücükdeveci (C‑555/07, EU:C:2010:21) in relation to the principle of non-discrimination on grounds of age laid down in Article 21(1) of the Charter, held that Article 27 of the Charter could not be invoked independently since, for that article to be fully effective, it must be given more specific expression in European Union or national law.
67. As to the substance, I refer, mutatis mutandis, to the reasoning set out in points 60 to 62 of my Opinion in Melchior (C‑647/13, EU:C:2014:2301). While there is no question as to the ability of Member States, in exercising their power to organise their social security systems, to provide for mechanisms to cap benefits or for anti-overlapping rules, national legislation that, in situations such as the one in the main proceedings, results in eliminating the pension rights acquired by an employed person based on the contributions he made to the national scheme, for the sole reason that he has acquired a whole occupational record in an EU institution entitling him to an EU pension for a period different from that during which he contributed to the national scheme, does not seem to me to be compatible with the principles set out in Article 34 of the Charter.
V – Conclusion
68. In the light of all the foregoing considerations, I suggest that the following answer be given to the question referred by Tribunal du travail de Bruxelles for a preliminary ruling:
Article 4(3) TEU, read in conjunction with the Staff Regulations of Officials of the European Union, established by Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010, precludes legislation of a Member State, such as that at issue in the main proceedings, which provides for the retirement pension payable to an employed person by virtue of the contributions made pursuant to the legislation of that Member State to be reduced, or even eliminated, when the total number of years of the occupational record acquired by him in that Member State and as an EU official posted in that State exceeds the ‘occupational record unit’, in so far as, owing to the method used to calculate the fraction representing the size of the pension payable by the European Union, that reduction is greater than it would have been had he acquired the whole of his occupational record as an employed person in the Member State in question.