Maurits Casteels v British Airways plc.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Arestis
• ECLI: ECLI:EU:C:2010:675
• Date: 11 November 2010
• Docket Number: C-379/09
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 November 2010 (1)

Case C‑379/09

Maurits Casteels

v

British Airways plc

(Reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium))

(Articles 45 and 48 TFEU – Freedom of movement for workers – Social security for migrant workers – Supplementary pension entitlements arising from occupational old-age pension schemes – Qualifying periods – Employees employed by the same employer successively at its establishments in various Member States – Loss of supplementary pension entitlements as a result of moving from one establishment to an establishment situated in another Member State)

I – Introduction

1. In view of the demographic change in Europe and the associated challenges posed to State old-age insurance schemes the creation of supplementary private pension provision is becoming increasingly important for Union citizens.

2. Occupational old-age pension schemes play an invaluable role in this context. However, as a rule in order to acquire supplementary occupational pension entitlements the employment relationship must have existed for a minimum period or contributions in respect of the employee must have been paid into an occupational pension scheme for a minimum period. Only when such minimum periods have been completed is there a guarantee that the employee’s pension rights will not be ‘forfeited’ wholly or partially upon his departure from the scheme or simply upon termination of his employment contract. The term qualifying periods has come into use to describe such minimum periods.

3. Such qualifying periods are also the focus of interest in the present case. Mr Casteels, a Belgian worker, was employed continuously for many years by the same employer, the airline company British Airways. However, he worked at a number of British Airways establishments in several Member States. This resulted in him being affiliated successively to several occupational old-age pension schemes. British Airways is now refusing to grant him a supplementary occupational pension in respect of his service of just under three years in Germany because he was not affiliated to the occupational old-age pension scheme which exists at its sites in Germany for the prescribed minimum period, and he also moved voluntarily to another British Airways establishment.

4. In the present case the Court will have to ascertain whether such an approach is consistent with the provisions of European Union law on freedom of movement for workers.

II – Legal framework

A – European Union law

5. The framework for this case in European Union law is determined by the provisions on freedom of movement for workers. (2)

6. Article 45 TFEU (ex Article 39 EC) reads, in extract, as follows:

‘1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

…’

7. Article 48(1) TFEU (ex Article 42 EC) establishes the following:

‘The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, 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 employed and self-employed migrant workers and their dependants:

(a) 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;

(b) payment of benefits to persons resident in the territories of Member States.’

B – National law

8. At the time material to this case, the legal framework in Germany was determined, firstly, by the Gesetz zur Verbesserung der betrieblichen Altersversorgung (Law on the enhancement of occupational old-age pensions; ‘the BetrAVG’) (3) and, secondly, by a collective agreement.

1. Gesetz zur Verbesserung der betrieblichen Altersversorgung

9. The version of Paragraph 1(1) of the BetrAVG relevant in the present case (4) was worded as follows:

‘An employee who has been given an assurance of old-age, invalidity or survivor’s pension benefits on grounds of his employment relationship (occupational old-age pension) shall retain his pension right where his employment relationship terminates prior to the operative event if, at that time, the employee has reached the age of at least 35 and

– either the assurance as to benefits has existed in respect of him for at least 10 years

– or the beginning of his employment was at least 12 years ago and the assurance as to benefits has existed in respect of him for at least three years. …’ (5)

10. At that time Paragraph 17(3) of the BetrAVG read as follows:

‘Derogations from the provisions of Paragraphs 2 to 5, 16, 27 and 28 may be effected by collective agreement. The derogating provisions shall apply between employers and employees not bound by a collective agreement if they agree that the relevant provisions of the collective agreement are applicable between them. As to the remainder, the provisions of this Law cannot be derogated from to the employee’s disadvantage.’

2. Collective Pension Agreement No 3

11. ‘Collective Pension Agreement No 3 for Ground Crew and Cabin Crew of British Airways plc in Germany’ (6) applied to Mr Casteels’ employment relationship while he was working in Germany. This collective agreement was concluded on 13 July 1989 between British Airways’ Deutschland-Direktion and the trade union ‘Öffentliche Dienste, Transport und Verkehr’ (ÖTV) and applied with effect from 1 January 1988. It laid down the details of the additional occupational pension for British Airways employees in Germany. Clause 7 of this collective agreement was worded as follows:

‘(1) Employees who entered service with BA after 31 December 1977 shall be entitled to repayment of their own contributions, without interest, where they leave the company before the statutory qualification periods have been completed.

(2) The following rules shall apply to employees who entered service with BA before 1 January 1978:

(a) Employees with non-forfeitable entitlements may, where they leave the company before reaching the relevant age, demand payment of the value of the pension entitlement guaranteed by their own contributions …

(b) Employees who leave service with BA of their own free will before the completion of 5 years of service shall be entitled only to benefits which are guaranteed by their own contributions.

Employees who, after the completion of 5 years of service, but before the completion of the statutory qualifying periods, leave service with BA of their own free will or for any another reason, shall be entitled to the pension benefits which are guaranteed up that time by BA’s contributions. …

…’

III – Facts and main proceedings

12. Mr Maurits Casteels had worked for the airline company British Airways plc, a company incorporated under UK law which maintains a large number of establishments in the European Union, continuously since 1 July 1974. In the course of his working life Mr Casteels worked at British Airways establishments in various Member States, namely Belgium, France and Germany.

13. Under a contract between Mr Casteels and British Airways of 10 March 1988, the occupational old-age pension scheme in force at the relevant place of service was always to apply to his employment relationship. Corresponding adjustments to the contract were made each time Mr Casteels moved from one establishment to another. The aim was to subject his employment relationship to the relevant national occupational old-age pension schemes. The intention was also to prevent Mr Casteels from being affiliated simultaneously to several British Airways occupational old-age pension schemes.

14. The contract of 10 March 1988 also makes it clear that the beginning of Mr Casteels’ employment with British Airways was to be regarded as 1 July 1974 for all purposes. (7)

15. From 15 November 1988 to 1 October 1991 (8) Mr Casteels worked in Germany as an aircraft maintenance mechanic at British Airways’ establishment in Düsseldorf. On the occasion of his move to Germany it was agreed between the parties on 19 October 1988 that Mr Casteels would be treated, in terms of his conditions of employment, as a German employee who had worked at British Airways’ German establishment since 1 July 1974. The only exception was membership of the occupational old-age pension scheme applicable to British Airways employees in Germany under Collective Pension Agreement No 3. Mr Casteels was not to be included in that scheme until he actually started work in Germany on 15 November 1988. (9)

16. After accepting an offer from British Airways to work at its French establishment in Paris (Charles De Gaulle Airport), Mr Casteels moved from Germany to France on 1 October 1991. There he was subject to the occupational old-age pension rules applicable to British Airways employees in France. As of 1 April 1996 Mr Casteels returned to work for British Airways in Belgium, without having made any further moves abroad, and was again affiliated to the Belgium occupational old-age pension scheme.

17. The fact that Mr Casteels is entitled to a supplementary occupational pension in respect of the period following his definitive return to Belgium on 1 April 1996 is not at issue. What was at issue – and the subject-matter of the legal proceedings before the Belgian labour courts – was initially the treatment of the entire preceding period from 1 July 1974 to 31 March 1996. However, the main proceedings now concern only whether Mr Casteels is entitled to a supplementary occupational pension on the basis of his employment in Germany. British Airways is refusing to grant Mr Casteels this...