Case C-233/12, Gardella

Refusal Italian social security agency to transfer pension contributions infringing EU Charter 

>> This case concerned the question whether Articles 20 TFEU, 45 TFEU, 48 TFEU and 145 TFEU to 147 TFEU and Article 15 of the Charter must be interpreted as precluding rules of a Member State which did  not allow its nationals employed in an international organisation such as the EPO, established in the territory of another Member State, to transfer to the social security scheme of that organisation the capital value representing the pension rights they have acquired previously in the territory of their Member State of origin, where there was no arrangement between that Member State and the international organisation providing for the possibility of such a transfer.

Mr Gardella, an Italian, had worked in Italy before taking up a position in Germany at the European Patent Office (EPO). He requested the agency concerned with social security in Italy  - the Istituto nazionale della previdenza sociale (INPS) - to transfer the contributions that he had already paid towards his Italian pension into the EPO’s pension system. However, INPS turned down his application. Mr Gardella inter alia alleged that, if his action before the referring court was dismissed, he risked losing his acquired pension rights, because, firstly, the EPO did not apply the aggregation mechanism and, secondly, in Italy his employment or contribution periods might y not amount to the minimum period required under national legislation for vesting entitlement to a pension.

The Court first of all reiterated that any Community national who, irrespective of his place of residence and his nationality, had exercised the right to freedom of movement for workers and who had been employed in a Member State other than that of his origin fell within the scope of Article 45 TFEU. A Union national working in a Member State other than his State of origin and who had accepted a post in an international organisation also came within the scope of that provision. He did not lose his status as worker for the purposes of Article 45 TFEU because he held employment with an international organisation (see Case C‑185/04 Öberg [2006]); Joined Cases 389/87 and 390/87 Echternach and Moritz [1989]).

The Court held that it followed that Mr Gardella’s situation came within the scope of Article 45 TFEU

The Court found that it was thus not apparent from Article 45 TFEU, read in the light of Article 48 TFEU, that there was an obligation for a Member State to provide for the option for an official of an international organisation, such as the EPO, of transferring the capital value representing previously-acquired pension rights to the pension scheme of that international organisation, or that there was an obligation to conclude an international agreement to that effect.

Consequently, the absence of such an option for officials of an international organisation such as the EPO could not be considered to be an impediment to the free movement of workers for the purposes of Article 45 TFEU.

The Court consequently made several following remarks are apposite in relation to the other provisions of the FEU Treaty and of the Charter mentioned in the questions referred.

With regard to Article 20 TFEU, the Court held that this provision sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, which found specific expression in Article 45 TFEU in relation to freedom of movement for workers (see Case C‑3/08 Leyman [2009]).

As regards Article 15(2) of the Charter, the Court stressed that Article 52(2) thereof, which provided that rights recognised by the Charter for which provision was made in the treaties were to be exercised under the conditions and within the limits defined therein. In that vein, Article 15(2) of the Charter reiterated inter alia the free movement of workers guaranteed by Article 45 TFEU, as confirmed by the explanations relating to that provision.

The Court furthermore pointed out that Articles 145 TFEU to 147 TFEU laid down the objectives of and general measures for EU employment policy. The right asserted by Mr Gardella or the obligation for a Member State to guarantee such a right could not be inferred from those provisions.

The Court thus concluded that in order to answer the questions referred, an analysis of Articles 45 TFEU and 48 TFEU was sufficient. It held that Articles 45 TFEU and 48 TFEU must be interpreted as not precluding rules of a Member State which do not allow its nationals employed in an international organisation such as the EPO, established in the territory of another Member State, to transfer to the social security scheme of that organisation the capital value representing the pension rights they had acquired previously in the territory of their Member State of origin, where there was no arrangement between that Member State and the international organisation providing for the possibility of such a transfer.

However, the Court stressed that where a mechanism for transferring the capital value representing the pension rights acquired previously in a Member State to the pension scheme of a new employer in another Member State could not apply, Article 45 TFEU must be interpreted as precluding rules of a Member State which did not allow account to be taken of employment periods which a European Union national completed with an international organisation such as the EPO, established in the territory of another Member State, for the purposes of conferring entitlement to an old-age pension.

Text of Judgment