Contents
Judgment of the Court (Fifth Chamber)22 December 2022note(Reference for a preliminary ruling — European Central Bank (ECB) staff members — Transfer of pension rights acquired in a national pension scheme to the ECB pension scheme — Article 4(3) TEU — Principle of sincere cooperation — ECB Conditions of Employment — Article 8 of Annex IIIa — No provision of national law or agreement between the Member State concerned and the ECB)In Case C‑404/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale ordinario di Asti (District Court, Asti, Italy), made by decision of 13 January 2021, received at the Court on 30 June 2021, in the proceedingsWPvIstituto nazionale della previdenza sociale,Repubblica italiana,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: P. Pikamäe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– WP, by A. Dal Ferro, R. Ponchione, A. Rela and C. Zerbaro, avvocati,– the Istituto nazionale della previdenza sociale, by A. Coretti, C. d’Aloisio and L. Maritato, avvocati,– the Italian Government, by G. Palmieri, acting as Agent, and by G. Rocchitta, avvocato dello Stato,– the Greek Government, by M. Tassopoulou, acting as Agent,– the Spanish Government, by M.J. Ruiz Sánchez, acting as Agent,– the Polish Government, by B. Majczyna, acting as Agent,– the Portuguese Government, by P. Barros da Costa, L. Barroso, S. Jaulino and J. Ramos, acting as Agents,– the European Commission, by S. Delaude, G. Gattinara, B.-R. Killmann and B. Mongin, acting as Agents,– the European Central Bank (ECB), by B. Ehlers, F. Malfrère, A. Pizzolla and C. Zilioli, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 7 July 2022,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU, Articles 45 and 48 TFEU, Article 11 of Annex VIII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and Article 8 of Annex IIIa to the Decision of the European Central Bank (ECB) of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank, as amended on 31 March 1999 (OJ 1999 L 125, p. 32).
2The request has been made in proceedings between, on the one hand, WP and, on the other hand, the Istituto nazionale della previdenza sociale (National Social Security Institute, Italy) (‘the INPS’) and the Repubblica italiana (Italian Republic) concerning the transfer to the European Central Bank (ECB) pension scheme of the actuarial equivalent corresponding to the pension rights accrued to the applicant in the main proceedings under the INPS Fondo pensioni Lavoratori Dipendenti (Employee Pension Fund).
Legal context
European Union law
The Protocol on the ESCB and the ECB
3Article 36.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230) (‘the Protocol on the ESCB and the ECB’) provides:‘The Governing Council [of the ECB], on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB.’
The Protocol on privileges and immunities
4Article 14 of Protocol (No 7) on the privileges and immunities of the European Union (OJ 2016 C 202, p. 266) (‘the Protocol on privileges and immunities’) states:‘The European Parliament and the Council [of the European Union], acting by means of regulations in accordance with the ordinary legislative procedure and after consultation of the institutions concerned, shall lay down the scheme of social security benefits for officials and other servants of the [European] Union.’
5The Protocol on privileges and immunities also applies, pursuant to the first paragraph of Article 22 thereof, to the ECB, to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on the ESCB and the ECB.
The Staff Regulations
6The Staff Regulations are to apply, under Article 1 thereof, to officials of the European Union.
7Article 1a(1) of the Staff Regulations states:‘For the purposes of these Staff Regulations, “official of the Union” means any person who has been appointed, as provided for in these Staff Regulations, to an established post on the staff of one of the institutions of the Union by an instrument issued by the Appointing Authority of that institution.’
8Annex VIII to the Staff Regulations, headed ‘Pension scheme’, provides, in Article 11(2) thereof:‘An official who enters the service of the Union after:– leaving the service of a government administration or of a national or international organisation; or– 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.In such case the appointing authority of the institution in which the official serves shall, taking into account the official’s basic salary, age and exchange rate at the date of application for a transfer, determine by means of general implementing provisions the number of years of pensionable service with which he shall be credited under the Union pension scheme in respect of the former period of service, on the basis of the capital transferred, after deducting an amount representing capital appreciation between the date of the application for a transfer and the actual date of the transfer.Officials may make use of this arrangement once only for each Member State and pension fund concerned.’
The CEOS
9Article 1 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides:‘These Conditions of Employment shall apply to servants engaged under contract by the Union. Such staff shall be:– temporary staff;– contract staff;– …’
10Pursuant to Article 39(2) and Article 109(2) of the CEOS, Article 11(2) of Annex VIII to the Staff Regulations is to apply by analogy to temporary staff and contract staff respectively.
The ECB Conditions of Employment
11On the basis, in particular, of Article 36(1) of the Protocol on the ESCB and the ECB, the Governing Council of the ECB adopted, by decision of 9 June 1998, amended on 31 March 1999, the Conditions of Employment for Staff of the European Central Bank (OJ 1999 L 125, p. 32). In the version applicable to the dispute in the main proceedings (‘the ECB Conditions of Employment’), those conditions of employment provide, in Article 9(c) thereof:‘No specific national law governs these Conditions of Employment. The ECB shall apply (i) the general principles of law common to the Member States, (ii) the general principles of Union law, and (iii) the rules contained in Union regulations and directives concerning social policy which are addressed to Member States. Whenever necessary, these legal instruments will be implemented by the ECB. Union recommendations in the area of social policy will be given due consideration. In interpreting the rights and obligations under the present Conditions of Employment, due regard shall be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other Union institutions.’
12Article 8(a) of Annex IIIa to the ECB Conditions of Employment states:‘The ECB shall enter into agreements or make appropriate arrangements with such other employee benefit arrangements, organisations and governments as it determines to accept the transfer to the [ECB pension scheme] of amounts of cash in respect of members of staff who have completed their probationary period with the ECB.’
Italian law
13Article 1 of legge n. 29 – Ricongiunzione dei periodi assicurativi dei lavoratori ai fini previdenziali (Law No 29 on the merger of workers’ insurance periods for the purposes of social security) of 7 February 1979 (GURI No 40 of 9 February 1979, p. 1317), provides:‘Employees in the public or private sector who are or have been affiliated to compulsory forms of pension which are equivalent to the employees’ compulsory general invalidity, old-age and survivors’ insurance scheme managed by the INPS or which have given rise to exclusion or exemption from such affiliation, shall be entitled, for the purposes of the granting and determination of the amount of a single pension, to request, at any time, that all periods of compulsory, voluntary and notional contributions to the abovementioned social security schemes be aggregated in the compulsory general insurance scheme and that corresponding pension rights be granted under the latter. To that end, the manager or managers of the schemes of origin shall transfer to the manager of the compulsory general insurance scheme the amount of contributions which they hold …’
14Article 18 of legge n. 115 – Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea – Legge europea 2014 (Law No 115 on provisions to comply with the obligations arising from Italy’s membership of the European Union – European Law 2014), of 29 July 2015 (GURI No 178 of 3 August 2015, p. 1), provides:1. From 1 January 2016, citizens of the European Union … who are or have been affiliated to the compulsory general invalidity, old-age and survivors’ insurance scheme for employed persons … shall have the possibility of aggregating periods of insurance completed under those insurance schemes with periods of insurance completed with international organisations.2. The aggregation referred to in paragraph 1 may be requested, where this is necessary to obtain entitlement to an old-age, invalidity or survivor’s pension, provided that the total duration of the periods of insurance completed under Italian legislation is at least 52 weeks and that the periods to be aggregated do not overlap.3. The aggregation of periods of insurance may be made at the request of the person concerned, which request shall be submitted to the Italian social security institution with which he or she completed periods of insurance. Where a former employee of an international organisation acquires the right to benefits provided for under Italian legislation without there being any need to aggregate the periods of insurance completed with the international organisation, the Italian social security institution shall calculate the pension exclusively on the basis of periods of insurance completed under the Italian pension scheme. Where a former employee of an international organisation acquires the right to benefits provided for under Italian legislation only by aggregating periods of insurance completed with the international organisation, the Italian social security institution shall take into account periods of insurance completed under the pension scheme of the international organisation – with the exception of those which have been reimbursed – as though they had been completed under Italian legislation, and shall calculate the amount of the benefit exclusively on the basis of periods of insurance completed under Italian legislation.4. Retirement benefits payable in accordance with this Article shall be treated as pensions for all purposes arising from the application of Italian legislation.5. Periods of employment with an international organisation may, in so far as they do not give rise to entitlement to a retirement benefit payable by the pension fund of that international organisation, be purchased under the Italian pension scheme in accordance with the legislation governing the purchase of periods of employment completed abroad. The right to purchase shall be exercised, inter alia by the survivors of the employee of the international organisation, under the conditions laid down by the rules of the Italian social security institution from which the purchase is sought.…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
15WP has been a member of the staff of the ECB since 1 March 2012. Between 1 August 1982 and 24 February 2012, when he was an employee working in the private sector in Italy, compulsory contributions were paid into the INPS Employee Pension Fund on his behalf.
16On 12 December 2016, WP applied to the INPS for the transfer, to the ECB pension scheme, of the actuarial equivalent corresponding to the pension rights that he had acquired with the INPS Employee Pension Fund or, in the alternative, the updated capital value resulting from the pension contributions paid to that pension fund, both calculated on the basis of the rules governing pension payments under that fund.
17The INPS refused WP’s request on the ground that it was not possible to carry out the transfer requested in the absence of a specific legislative measure or of a bilateral agreement between the ECB and the Italian Republic. On 28 November 2017, WP lodged an administrative appeal against the rejection of his application, which was declared inadmissible by decision of 11 April 2018.
18By application lodged before the Tribunale ordinario di Asti (District Court, Asti, Italy), the referring court, WP essentially sought, primarily, a declaration that the INPS and/or the Italian Republic were required to take all the measures necessary for the purposes of the transfer to the ECB pension scheme of the actuarial equivalent, calculated on the basis of the rules governing pension payments under the INPS employee pension fund, corresponding to the pension entitlements he had acquired as at the date of submission of the request, and an order that the INPS and/or the Italian Republic were to take all the measures necessary for the purposes of that transfer. In the alternative, WP sought a finding and declaration that the INPS and/or the Italian Republic were required to transfer to the ECB pension scheme the actuarial equivalent corresponding to the pension rights he had acquired with the INPS Employee Pension Fund, as compensation for the loss suffered, and that the INPS and/or the Italian Republic should consequently be ordered to transfer to the ECB pension scheme the amount corresponding to that equivalent, as compensation for the loss suffered.
19The referring court states that it is necessary to establish whether the provisions of EU law, in particular Article 4(3) TEU, Articles 45 and 48 TFEU, Article 11 of Annex VIII to the Staff Regulations and Article 8 of Annex IIIa to the ECB Conditions of Employment, must be interpreted as meaning that an ECB employee may request the transfer to the ECB pension scheme of any pension rights which he or she has acquired with a social security institution of a Member State, irrespective of the adoption of a national transposition rule or the conclusion between the ECB and the Member State or national social security institution of a specific agreement laying down the arrangements for implementing such a transfer.
20In that regard, the referring court considers that it could be inferred a contrario from the judgment of 4 July 2013, Gardella (C‑233/12, EU:C:2013:449, paragraphs 28 to 30), that, under EU law, there is, in the case of an ECB employee, a right to transfer to the ECB pension scheme those pension rights acquired by that employee as an employee who has worked in a Member State, since, unlike the European Patent Office (EPO) concerned by that judgment, the ECB is an EU institution. Furthermore, Article 8 of Annex IIIa to the ECB Conditions of Employment does not require the national social security institution to grant permission for such a transfer.
21However, the referring court also takes the view that it could be inferred from the judgment of 5 December 2013, Časta (C‑166/12, EU:C:2013:792, paragraphs 30 to 32), that it is necessary, for the Member State concerned, to adopt a specific rule determining the amount of the capital sum corresponding to pension rights acquired under the national pension scheme to be transferred to the EU pension scheme and that, in the absence of such a rule, recourse may not be had to the calculation criteria laid down in the national legislation or in the agreements concluded between the relevant national institution and other EU bodies.
22It is in those circumstances that the Tribunale ordinario di Asti (District Court, Asti) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Articles 45 and 48 TFEU, Article 4 TEU, Article 11 of Annex VIII to the [Staff Regulations] and Article 8 of Annex IIIa to the [ECB Conditions of Employment] be interpreted as precluding a set of national rules or a national administrative practice which does not allow a worker who is a national of a Member State who has paid contributions to the national social security institution and who currently works for an EU institution, such as the ECB, to transfer to the pension scheme of that institution the pension contributions credited to the social security scheme of his or her own State?(2) Based on the answer to the question set out above, must it be possible to exercise the right to transfer contributions even in the absence of national implementing legislation or a specific agreement between the Member State of which the worker is a national or the worker’s pension institution, on the one hand, and the EU institution, on the other?’
Consideration of the questions referred
The first question
23By its first question, the referring court asks, in essence, whether Article 4(3) TEU, Articles 45 and 48 TFEU, Article 11(2) of Annex VIII to the Staff Regulations and Article 8(a) of Annex IIIa to the ECB Conditions of Employment must be interpreted as precluding legislation or an administrative practice of a Member State which does not allow an ECB staff member to transfer to the ECB pension scheme an amount corresponding to the pension rights he or she has acquired under the pension scheme of that Member State.
24As regards Articles 45 and 48 TFEU, it is admittedly apparent from the settled case-law of the Court that a Union national, irrespective of his or her place of residence and his or her nationality, who has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of his or her origin falls within the scope of Article 45 TFEU, and also where he or she is employed by an EU institution, such as the ECB (see, to that effect, judgment of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 25 and the case-law cited).
25However, the Court has held that it cannot be inferred from Article 45 TFEU, read in the light of Article 48 TFEU, that a Member State is under an obligation to provide for the option for a member of staff of an international organisation of transferring the capital value representing previously acquired pension rights to the pension scheme of that international organisation, or that there is an obligation to conclude an international agreement to that effect (judgment of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 35).
26The first paragraph of Article 48 TFEU provides that the European Parliament and the Council are to adopt ‘such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for … migrant workers’ the ‘aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries’.
27Such a system of aggregation of periods was established by Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and 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), and subsequently by 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).
28It is thus clear that neither the FEU Treaty nor Regulation No 1408/71, as amended and updated by Regulation No 118/97, and Regulation No 883/2004 have provided for, or lay down rules concerning, the transfer of the capital value of previously acquired pension rights, but are based on the principle of aggregation of periods, as evidenced by Article 48 TFEU, as implemented by those regulations (see, to that effect, judgment of 4 July 2013, Gardella, C‑233/12, EU:C:2013:449, paragraph 33).
29Consequently, a person in the situation of the applicant in the main proceedings cannot rely on Articles 45 and 48 TFEU and those regulations in order to be permitted to apply for the transfer to the ECB pension scheme of the pension rights he or she acquired under the INPS scheme.
30The fact, mentioned by the referring court, that, unlike the EPO, which was at issue in the case which gave rise to the judgment of 4 July 2013, Gardella (C‑233/12, EU:C:2013:449), the ECB is an EU institution, cannot justify a different interpretation.
31Although the Court did indeed recall, in paragraph 29 of the judgment of 4 July 2013, Gardella (C‑233/12, EU:C:2013:449), that the EPO is not an EU institution or body, that reminder was intended solely to clarify the ground on which the option, granted under the Staff Regulations, of transferring to the EU pension scheme the capital value representing the pension rights acquired by virtue of previous activities cannot be extended to officials of the EPO and to relations between the latter and a Member State.
32Like EPO staff members, the Staff Regulations, and in particular, Article 11 of Annex VIII thereto, do not apply to members of staff of the ECB.
33ECB staff members are not appointed as officials of the European Union under the conditions laid down in Article 1a(1) of the Staff Regulations, with the result that, as is apparent from a combined reading of that provision and Article 1 of the Staff Regulations, the latter is not applicable to them.
34ECB staff members are also not engaged under contracts concluded with the European Union, with the result that, in accordance with Article 1 of the CEOS, the latter does not apply to them. They are engaged by the ECB, which, as provided for in the first sentence of Article 282(3) TFEU, has its own legal personality, which is separate from that of the Union.
35The rules applicable to ECB staff are to be adopted by the Governing Council of the ECB, in accordance with Article 36 of the Protocol on the ESCB and the ECB, and are currently laid down in the ECB Conditions of Employment.
36Those conditions admittedly provide, in Article 8(a) of Annex IIIa, that the ECB is to enter into agreements or make appropriate arrangements with such other employee benefit arrangements, organisations and governments as it determines to accept the transfer to the ECB pension scheme of amounts of cash in respect of members of staff who have completed their probationary period with the ECB.
37However, that provision does not impose an obligation on the Member States to enter into such agreements and to consent to the transfer, to the ECB pension scheme, of pension rights acquired under their respective national pension schemes by a member of staff of the ECB.
38Unlike the Staff Regulations which, as a regulation which is binding in all respects and directly applicable in any Member State, 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, judgment of 20 October 1981, Commission v Belgium, 137/80, EU:C:1981:237, paragraphs 8 and 9), the ECB Conditions of Employment were not adopted by way of a legislative act and, consequently, cannot, of themselves, create obligations incumbent on the Member States.
39The ECB may adopt legislative acts only in so far as is necessary for the performance of the tasks referred to in the first indent of Article 132(1) TFEU, which bear no relation to the pension scheme for ECB staff.
40The fact that the Protocol on privileges and immunities also applies to the ECB, as provided for in the first paragraph of Article 22 thereof, cannot justify a different conclusion. Although Article 14 of that protocol provides that the European Parliament and the Council, acting by means of regulations, are to lay down the scheme of social security benefits for officials and other servants of the Union, the fact remains that no regulation was adopted, pursuant to that provision, to provide for the transfer to the ECB pension scheme of pension rights acquired by its staff members under the pension schemes of the Member States.
41Nor can a different conclusion be drawn from Article 9(c) of the ECB Conditions of Employment, which provides that, in interpreting the rights and obligations under those conditions, due regard is to be shown for the authoritative principles of the regulations, rules and case-law which apply to the staff of other Union institutions.
42As has been pointed out in paragraph 37 of the present judgment, those conditions do not impose any obligation on Member States which might be the subject of such an interpretation.
43It follows from all the foregoing considerations that, as EU law currently stands, in the absence of an agreement between the ECB and the Member State concerned, that Member State is not required to provide for the option for an ECB staff member to request the transfer, to the ECB pension scheme, of pension rights which he or she has acquired under the pension scheme of that Member State. It thus follows that, in the absence of such an agreement between the ECB and the Member State concerned, EU law, as it currently stands, does not provide for a personal right for an ECB staff member to request the transfer to the ECB pension scheme of pension rights he or she has acquired under the pension scheme of that Member State.
44It should be noted, however, as the Advocate General observes in point 62 of his Opinion, that it is apparent from the observations submitted to the Court that, as early as 2005, the ECB asked the Italian authorities to enter into an agreement with a view to the transfer to the ECB pension scheme of pension rights acquired by ECB staff members under the Italian pension scheme. To that end, the ECB sent the INPS a draft of such an agreement. However, no agreement has been concluded, since the Italian Republic has not taken the necessary steps to that end.
45In those circumstances, in order to provide a useful answer to the referring court, it is necessary to examine any obligations, arising under EU law, incumbent on a Member State to which the conclusion of an agreement on the transfer of pension rights is proposed by the ECB.
46It should be recalled, in that regard, that Article 4 TEU, to which the first question referred for a preliminary ruling relates, enshrines, in paragraph 3 thereof, the principle of sincere cooperation between the European Union and its Member States, under which the Member States must, in particular, facilitate the achievement of the European Union’s tasks and refrain from any measure which could jeopardise the attainment of the European Union’s objectives (see, to that effect, judgment of 30 November 2021, LR Ģenerālprokuratūra, C‑3/20, EU:C:2021:969, paragraph 95).
47The fact that it is not possible to transfer, to the pension scheme of an EU institution, those pension rights acquired under the pension scheme of a Member State might make the recruitment, by that institution, of staff members with a certain length of service from that Member State more difficult, since the movement of the person concerned to the service of that institution could, in the absence of such transfer, entail the loss, for that person, in whole or in part, of the pension rights to which he or she would have been entitled had he or she not accepted employment with an EU institution (see, to that effect, judgment of 20 October 1981, Commission v Belgium, 137/80, EU:C:1981:237, paragraph 19, and of 4 February 2021, Ministre de la Transition écologique et solidaire et Ministre de l’Action et des Comptes publics, C‑903/19, EU:C:2021:95, paragraph 34 and the case-law cited).
48Furthermore, as the Advocate General notes in point 63 of his Opinion, almost all Member States of the Economic and Monetary Union have – in some cases, long since – concluded agreements with the ECB to allow the transfer, to the latter’s pension scheme, of pension rights acquired by ECB staff members under their national schemes.
49In such a situation, as the Advocate General notes, in essence, in point 58 of his Opinion, ECB staff members who have acquired pension rights under the scheme of a Member State which has not yet entered into such an agreement with the ECB are, without apparent justification, in a less favourable situation than their colleagues who are nationals of Member States which have entered into such an agreement with the ECB, which would be such as to result in unequal treatment and thus to be detrimental to the proper functioning of that institution.
50It should be observed, in the present case, that in so far as concerns the transfer to the ECB pension scheme of pension rights which ECB employees have acquired from a social security institution of a Member State, the ECB has expressed an interest in concluding agreements specifically providing for such transfer.
51In the light of the considerations set out in paragraphs 47 to 50 above, it must be concluded that the principle of sincere cooperation, enshrined in Article 4(3) TEU, entails an obligation, for a Member State, to cooperate with the ECB with a view to concluding an agreement on the transfer, to the ECB pension scheme, of pension rights acquired by members of its staff under the pension scheme of that Member State.
52Admittedly, as the Advocate General observes in point 60 of his Opinion, the principle of sincere cooperation cannot be interpreted as requiring that the Member State accept any draft agreement which may be submitted by the ECB. The fact remains, however, that the Member State must participate actively and in good faith in negotiations with the ECB with a view to entering into an agreement with the latter following the opening of negotiations, with a view to eliminating any existing obstacles, including the determination of an appropriate method for calculating the amount equivalent to the pension rights to be transferred.
53It follows from all the foregoing considerations that the answer to the first question is that Articles 45 and 48 TFEU, Article 11(2) of Annex VIII to the Staff Regulations and Article 8(a) of Annex IIIa to the ECB Conditions of Employment must be interpreted as not precluding, in the absence of an agreement between the ECB and the Member State concerned, legislation or an administrative practice of that Member State which does not allow an ECB staff member to transfer, to the ECB pension scheme, an amount corresponding to the pension rights he or she has acquired under the pension scheme of that Member State. However, Article 4(3) TEU requires, in accordance with the principle of sincere cooperation enshrined in that provision, that a Member State to which the conclusion of an agreement is proposed by the ECB, pursuant to Article 8(a) of Annex IIIa, on the transfer, to the ECB pension scheme, of pension rights acquired by its staff members under the pension scheme of that Member State, must participate actively and in good faith in negotiations with the ECB with a view to entering into an agreement with the latter following the opening of negotiations.
The second question
54By its second question, the referring court asks, in essence, whether EU law must be interpreted as authorising a court of a Member State seised by an ECB staff member to order the transfer to the ECB pension scheme of pension rights acquired by the person concerned under the pension scheme of that Member State, even in the absence of a provision of national law or an agreement, between the Member State concerned and the ECB, providing for such a transfer.
55It should be noted, in that regard, that, according to the case-law of the Court, the option of having pension rights transferred, provided for in Article 11(2) of Annex VIII to the Staff Regulations, is in the nature of a personal right conferred by the Staff Regulations and capable of being relied on against both the Member States and the EU institutions (judgment of 14 June 1990, Weiser, C‑37/89, EU:C:1990:254, paragraph 12 and the case-law cited).
56However, it is clear from paragraphs 32 and 43 above that, first, Article 11(2) of Annex VIII to the Staff Regulations does not apply to ECB staff members and, second, the transfer to the ECB pension scheme of pension rights acquired by an ECB staff member under the pension scheme of a Member State presupposes the conclusion of an agreement between the ECB and that Member State.
57It follows that, if such an agreement is not concluded between the ECB and the Member State concerned, a court of that Member State, seised by an ECB staff member who has acquired pension rights under the pension scheme of that Member State, cannot order the transfer of those rights to the ECB pension scheme.
58Nevertheless, it is clear from the answer to the first question that there is an obligation, arising from the principle of sincere cooperation enshrined in Article 4(3) TEU, for a Member State, at the request of the ECB with a view to concluding an agreement on the transfer of pension rights, to participate actively and in good faith in the negotiations with the ECB in such a way as to reach an agreement.
59If the court having jurisdiction in the Member State concerned considers that the competent authorities of that Member State, on account of their indifference as to the opening of negotiations with the ECB with a view to concluding an agreement on the transfer, to the latter’s pension scheme, of pension rights acquired by ECB staff members under the pension scheme of that Member State, have failed to fulfil that obligation, it is for that court, in compliance with the principles of equivalence and effectiveness as set out in the case-law of the Court (see, in particular, judgment of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraph 54), to take any effective measure provided for in the national procedural rules applicable in order that those authorities participate actively and in good faith in the negotiations with the ECB with a view to concluding such an agreement.
60In the light of all the foregoing considerations, the answer to the second question is that EU law must be interpreted as not authorising a court of a Member State seised by an ECB staff member to order the transfer to the ECB pension scheme of pension rights acquired by the person concerned under the pension scheme of that Member State, in the absence of a provision of national law or an agreement between the Member State concerned and the ECB providing for such a transfer. However, where, owing to the breach, by that Member State, of its obligation, arising from the principle of sincere cooperation enshrined in Article 4(3) TEU, to participate actively and in good faith in negotiations with the ECB with a view to concluding an agreement on the transfer of pension rights, that ECB staff member is unable to have the pension rights which he or she has acquired under the pension scheme of that Member State transferred to the ECB pension scheme, that provision requires that such a national court take all the measures provided by national procedural rules so as to ensure that that obligation is fulfilled by the competent national authority.
Costs
61Since 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 (Fifth Chamber) hereby rules:
1.Articles 45 and 48 TFEU, Article 11(2) of Annex VIII to the Staff Regulations and Article 8(a) of Annex IIIa to the Decision of the European Central Bank of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank as amended on 31 March 1999,must be interpreted as not precluding, in the absence of an agreement between the European Central Bank (ECB) and the Member State concerned, legislation or an administrative practice of that Member State which does not allow an ECB staff member to transfer, to the ECB pension scheme, an amount corresponding to the pension rights he or she has acquired under the pension scheme of that Member State. However, Article 4(3) TEU requires, in accordance with the principle of sincere cooperation enshrined in that provision, that a Member State to which the conclusion of an agreement is proposed by the ECB, pursuant to Article 8(a) of Annex IIIa, on the transfer, to the ECB pension scheme, of pension rights acquired by its staff members under the pension scheme of that Member State, must participate actively and in good faith in negotiations with the ECB with a view to entering into an agreement with the latter following the opening of negotiations.
2.EU law must be interpreted as not authorising a court of a Member State seised by a European Central Bank (ECB) staff member to order the transfer to the ECB pension scheme of pension rights acquired by the person concerned under the pension scheme of that Member State, in the absence of a provision of national law or an agreement between the Member State concerned and the ECB providing for such a transfer. However, where, owing to the breach, by that Member State, of its obligation, arising from the principle of sincere cooperation enshrined in Article 4(3) TEU, to participate actively and in good faith in negotiations with the ECB with a view to concluding an agreement on the transfer of pension rights, that ECB staff member is unable to have the pension rights which he or she has acquired under the pension scheme of that Member State transferred to the ECB pension scheme, that provision requires that such a national court take all the measures provided by national procedural rules so as to ensure that that obligation is fulfilled by the competent national authority.
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