Aliny Wojciechowski v Office national des pensions (ONP) (C-408/14)

Contents

Judgment of the Court (Third Chamber)10 September 2015^note(Reference for a preliminary ruling — Retired EU official who has, prior to entering the service, pursued an activity in an employed capacity in the Member State in which she is posted — Pension rights by virtue of the national pension scheme for employed persons — Occupational record unit — Refusal to pay the retirement pension for employed persons — Principle of sincere cooperation)In Case C‑408/14,REQUEST for a preliminary ruling under Article 267 TFEU, from the Tribunal du travail de Bruxelles (Belgium), made by decision of 19 August 2014, received at the Court on 28 August 2014, in the proceedingsAliny WojciechowskivOffice national des pensions (ONP),THE COURT (Third Chamber),composed of M. Ilešič, President of the Chamber, A. Ó Caoimh, C. Toader, E. Jarašiūnas (Rapporteur) and C.G. Fernlund, Judges,Advocate General: P. Mengozzi,Registrar: V. Tourrès, Administrator,having regard to the written procedure and further to the hearing on 7 May 2015,after considering the observations submitted on behalf of:— Ms Wojciechowski, by V. Vannes and S. Rodrigues, avocats,— the Belgian Government, by J.-C. Halleux and C. Pochet, acting as Agents, assisted by M. Leclercq, avocat,— the European Commission, by D. Martin, acting as Agent,after hearing the Opinion of the Advocate General at the sitting on 11 June 2015gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of the principle of sincere cooperation and of Article 34(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in proceedings between Ms Wojciechowski and the Office national des pensions (ONP) in relation to the ONP’s refusal to pay her a retirement pension for employed persons.

Legal context

EU law

3The Staff Regulations of Officials of the European Union, established by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council 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 (OJ 1968 L 56, p. 1), as amended by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 311, p. 1, and corrigendum OJ 2012 L 144, p. 48), (‘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....’

Belgian law

4Royal Decree No 50 of 24 October 1967 on the retirement and survival pension for employed persons (Moniteur belge of 27 October 1967, p. 11246), in the version applicable to the facts of the case in the main proceedings (‘Royal Decree No 50’), contains an Article 10a which establishes the concept known as the ‘occupational record unit’. That article was inserted by Royal Decree No 205, of 29 August 1983, amending the legislation on social sector pensions (Moniteur belge of 6 September 1983, p. 11094).

5The first, second and fourth paragraphs of Article 10a provide as follows:‘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 to bring that total down to one [occupational record] unit. …The fraction referred to in the preceding paragraph represents the ratio between on the one hand the length of the periods, the percentage or any other criterion (except the amount) which is taken into consideration for determining the pension granted and on the other hand the maximum duration, percentage or any other criterion on the basis of which a full pension may be granted....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.’

6Article 3 of the Royal Decree of 14 October 1983 implementing Article 10a of Royal Decree No 50 (Moniteur Belge of 27 October 1983, p. 13650), in the version applicable to the facts of the case in the main proceedings (‘the Royal Decree of 14 October 1983’), provides as follows:‘Each of the fractions referred to in the first paragraph of Article 10a … shall be multiplied by the denominator of the fraction taken into consideration in order to calculate the pension of the employed person. Where that pension is calculated on the basis of fractions with different denominators, those fractions shall be converted beforehand to the highest of those denominators and added together.The number of years to be deducted from the occupational record is equal to the positive difference, rounded down to the lower [occupational record] unit, between the sum of the products obtained pursuant to the previous paragraph and the denominator or the highest of the denominators on the basis of which the pension as an employed person is calculated.The number of years to be deducted may not exceed 15, nor the result rounded up to the next unit, obtained by dividing the difference between the converted amount and the standard amount by an amount equal to 10[%] of that standard amount. …The reduction in the occupational record is to be applied first to the least advantageous years in terms of pension entitlement.’

7Article 1 of the Royal Decree of 14 October 1983 states:‘For the purposes of the present Decree, the following definitions shall apply:…(b) converted amount: the result obtained by multiplying the pension granted under another scheme by the reciprocal of the fraction referred to in the second paragraph of Article 10a of Royal Decree No 50 …;(c) standard amount: 75 [%] of the re-valued fixed remuneration taken into account for a worker’s occupation for one year prior to 1 January 1955.’

8Article 2 of the Royal Decree of 14 October 1983 states, in paragraph 3 thereof, as follows:‘A full pension under another scheme means the pension which, without taking account of any allowances, supplements or benefits of a different nature, reaches the maximum amount which may be granted in the category to which the recipient belongs.’

9It is apparent from the file submitted to the Court that, when the amount of the pension granted under the other scheme is not known, it is, in the case of a full pension, the administrative practice to deem that amount equal to 2.5 times the standard amount of EUR 6 506.98, at an index of 138.01.

The dispute in the main proceedings and the question referred for a preliminary ruling

10According 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.

11In 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.

12On 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.

13By 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.

14By 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 European Union 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.

15By 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 …’.

16It is apparent from that decision and from the file before the Court 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 initially 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, in so far as while, admittedly, the occupational record unit had in principle been exceeded by 13 years, the application of the mitigating provision laid down in the third paragraph of Article 3 of the Royal Decree of 14 October 1983 allowed that excess to be limited to 10 years.

17By 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 that institution, 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, an EU 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. It therefore deduced from this that the occupational record unit was exceeded by 13 years.

18As 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, as in the present case, 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’. As a result, according to the ONP, not a single year of her activity as an employed person could be taken into account, despite what it had stated in the decision of 11 September 2012. It is apparent from the file before the Court that, in that decision, because of an error in the encoding of that converted amount, the ONP incorrectly found that the reduction in the occupational record could be limited to 10 years under the third paragraph of Article 3 of the Royal Decree of 14 October 1983. The ONP did not send a new decision to Ms Wojciechowski, but ceased to pay her pension with effect from July 2013.

19By application of 11 December 2012, Ms Wojciechowski applied to the Tribunal du travail de Bruxelles (Labour Tribunal, Brussels) (Belgium) for, inter alia, 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, in her view, approximately EUR 367.07 per month. In support of her application, Ms Wojciechowski has 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 (OJ, English Special Edition 1971 (II), p. 416), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), 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) was applicable to her situation, then, following the Court’s case-law, it would be impossible for the ONP to apply the concept 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.

20The 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.

21The 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. In this connection, it states that, in accordance with that concept, 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 representing 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 d’arbitrage (Court of Arbitration), now the Cour constitutionnelle (Belgian Constitutional Court), held in a judgment of 20 September 2001, referring to the rapport au Roi (Report to the King) preceding Royal Decree No 205 of 29 August 1983, Article 10a aims to ensure that ‘all workers with a mixed occupational record are treated on an equal footing, in order to keep expenditure in the pension sector under control’.

22Having 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 (Labour 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.

23In those circumstances, the Tribunal du Travail de Bruxelles decided to stay the proceedings and to 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 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]?’

Jurisdiction of the Court

24The Belgian Government submits that the Court does not have jurisdiction to answer the question referred, since the case in the main proceedings has no connection with EU law. The Commission challenged that claim at the hearing.

25In 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).

26The 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).

27By 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.

28Consequently, as the Advocate General observed, essentially, at points 33 and 34 of his Opinion, it cannot be held that the case in the main proceedings has no link with EU law which might serve as a basis for establishing the Court’s jurisdiction to answer the question referred. It is apparent from the order for reference that the referring court has raised the issue, inter alia, of whether national legislation such as that at issue in the main proceedings impedes the recruitment by the EU institutions of national officials with a certain length of service. That order for reference therefore relates, in essence, to Article 4(3) TEU read in conjunction with the Staff Regulations, and accordingly has a link with EU law.

29Moreover, 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.

30It follows from the foregoing that the Court has jurisdiction to answer the question referred.

Consideration of the question referred

Admissibility

31The Belgian Government claims that the question referred is purely hypothetical and therefore inadmissible, inasmuch as the referring court has based its decision to refer the matter to the Court on the unproven contention that Article 10a of Royal Decree No 50 ‘could impede recruitment by the European Community of officials of Belgian nationality with a certain length of service’.

32According 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).

33It must be stated that none of those circumstances exist in the present case. In particular, the hypothesis made by the referring court from which the Belgian Government derives its argument cannot be regarded as conferring a hypothetical character on the question referred, since it is in fact the very reason for its having submitted the order for reference. It is precisely because the Tribunal de travail de Bruxelles is uncertain whether the legislation at issue in the main proceedings may cause an impediment as mentioned in paragraph 31 above, as provided for in the Court’s case-law, that it referred to the Court the question reproduced in paragraph 23 above. That question is therefore admissible.

Substance

34By its question, the referring court asks, in essence, whether Article 4(3) TEU, on the one hand, and Article 34(1) of the Charter, on the other, must be interpreted as precluding legislation of a Member State, 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 who is a national of that Member State by virtue of the service performed, in accordance with the legislation of that Member State, where, under the method of calculation provided for by that legislation, the total number of years of the occupational record acquired by him as an employed person in that Member State and as an EU official posted in that State exceeds the ‘occupational record unit’ of 45 years referred to in that legislation.

35It 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.

36In 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).

37Furthermore, 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.

38In 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.

39The Court pointed out that such legislation was liable to impede and therefore discourage employment within an EU institution or body, 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.

40It 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).

41In 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.

42The 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).

43Legislation of a Member State such as that at issue in the main proceedings, under which the retirement pension payable to a worker by virtue of the service performed as an employed person in that State is reduced or refused on account of his subsequent occupational record within an EU institution, is also liable to impede not only the recruitment by those institutions of national officials with a certain length of service but also the retention of experienced officials in the service of those institutions.

44Such legislation could deter a worker who has acquired a certain length of service under the pension scheme for employed persons in that Member State from accepting a post in the service of an EU institution located in that State or encourage him to leave the post he holds in that institution early if, on account of that legislation, he may, by holding a post in that institution or by remaining in its service for a considerable time, lose the opportunity of benefiting from the pension rights which he has acquired by virtue of his activity as an employed person within that Member State prior to entering the service of the European Union.

45Such consequences cannot 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 4(3) TEU to facilitate the achievement of the European Union’s tasks.

46Admittedly, 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.

47That fact is not, however, such as to call into question the finding made in paragraphs 43 to 45 above, since, even though that period has been taken into account, the outcome is still the reduction, or elimination, of the pension rights which Ms Wojciechowski could have claimed from the Belgian scheme for employed persons had she not subsequently entered the service of an EU institution, and therefore also acts as a deterrent from her point of view.

48Nevertheless, the file before the Court shows that the loss by Ms Wojciechowski of all the pension rights which she could have claimed had she remained a member of the Belgian scheme for employed persons for the whole of her occupational record does not result from the application of the concept of the ‘occupational record unit’ provided for by Article 10a of Royal Decree No 50 per se, but from the method applied by the competent Belgian authorities in order to calculate the fraction representing the size of Ms Wojciechowski’s retirement pension payable by the European Union, which equiparates an occupational record of 35 years in the EU institutions with an occupational record of 45 years under the Belgian scheme for employed persons.

49It is apparent from that file that those pension rights would not have been eliminated had those authorities found that the 35 years of service completed at the Commission were equivalent to 35/45ths of a career as an employed person in Belgium and had they therefore concluded that Ms Wojciechowski’s total occupational record contained 48/45ths. That would, for the purposes of the calculation of her pension by virtue of her activity as an employed person in Belgium, have led to a reduction corresponding, at the most, to the elimination of the three least advantageous years in terms of pension entitlement, like the reduction which would have been applied to any other Belgian worker who had acquired an occupational record of 48 years entirely under the Belgian scheme for employed persons.

50It must be pointed out in this connection that the potential deterrent identified in paragraphs 43 to 45 above can be avoided only by granting the years of occupational record acquired in the service of an EU institution the same temporal value as that granted to the years of occupational record acquired under the Belgian scheme for employed persons. It is only by counting in an identical manner the periods of work carried out, on one hand, as an employed person and, on the other hand, as an official of the European Union that the deterrent in question may be eliminated, and otherwise, as it was noted in those paragraphs, it may affect those accepting a post in the service of an EU institution after having worked as an employed person in Belgium.

51Lastly, the Belgian Government cannot rely, to justify the loss by Ms Wojciechowski of all her pension rights acquired under the Belgian scheme for employed persons, on the fact that she chose not to have paid to the European Union, pursuant to Article 11(2) of Annex VIII to the Staff Regulations, the capital value of the pension rights acquired by virtue of her activity in an employed capacity prior to entering the service of the European Union.

52As 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.

53Having regard to all the foregoing considerations and without it being necessary to examine the question referred in the light of Article 34(1) of the Charter, the answer to that question is that Article 4(3) TEU, in conjunction with the Staff Regulations, must be interpreted as precluding legislation of a Member State, 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 who is a national of that Member State 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 as an employed person in that Member State and as an EU official posted in that Member State exceeds the ‘occupational record unit’ of 45 years referred to in that legislation, 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.

Costs

54Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: Article 4(3) TEU, in conjunction with the Staff Regulations of Officials of the European Union, established by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council 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, must be interpreted as precluding legislation of a Member State, 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 who is a national of that Member State by virtue of the service performed, in accordance with its legislation, where the total number of years of the occupational record acquired by him as an employed person in that Member State and as an EU official posted in that Member State exceeds the ‘occupational record unit’ of 45 years referred to in that legislation, 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.