delivered on 25 February 2016 (*1)

Case C‑159/15

Franz Lesar

Beim Vorstand der Telekom Austria AG eingerichtetes Personalamt

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Administrative Court, Austria))

Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) and 2(2)(a) — Article 6(2) — Determination of pension rights of former civil servants — Periods of apprenticeship or employment as a member of contract staff for which compulsory pension insurance contributions had to be paid — Account to be taken of such periods — Exclusion of such periods completed before the person concerned reached the age of 18

1.This request for a preliminary ruling concerns the interpretation of Article 2(1) and 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (*2)

2.The request has been made in the course of proceedings brought by Mr Lesar against the Beim Vorstand der Telekom Austria AG eingerichtetes Personalamt (Human Resources Department established by the management board of Telekom Austria AG; ‘the Human Resources Department’) concerning the latter’s refusal to take into account, for the purpose of calculating Mr Lesar’s pension rights, the periods of apprenticeship and employment preceding his entry into service which he had completed before reaching the age of 18.

3.In this Opinion, I shall propose that the Court examine the national legislation at issue in the main proceedings in the light of Article 6(2) of Directive 2000/78 rather than in the light of Article 6(1) thereof. At the end of my analysis, I will conclude that Article 2(1) and 2(2)(a) and Article 6(2) of that directive must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which excludes the taking into account of periods of apprenticeship and employment completed by a civil servant before reaching the age of 18 for the purposes of granting pension rights and for calculating the amount of his retirement pension, in so far as that legislation seeks to guarantee, within a civil service retirement scheme, a uniform age for admission to that scheme and a uniform age for entitlement to the retirement benefits which are provided thereunder.

I – Legal framework

A – Directive 2000/78

4.Article 1 of Directive 2000/78 states that ‘the purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.

5.Article 2 of that directive provides:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

6.Article 6 of that directive is worded as follows:

‘1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

B – Austrian law

7.Paragraphs 53 and 54 of the Federal Law on the Pension Rights of Federal Civil Servants, their Survivors and the Members of their Families (Law on Pensions 1965) (Bundesgesetz über die Pensionsansprüche der Bundesbeamten, ihrer Hinterbliebenen und Angehörigen (Pensionsgesetz 1965)) of 18 November 1965, (*3) were, in the version in force at the time of the facts of the dispute in the main proceedings, worded as follows:

‘Pre-service pensionable periods which may be credited

Paragraph 53

(1) Pre-service pensionable periods are the periods listed in subparagraphs 2 to 4, in so far as they precede the date from which the period of federal civil service which gives entitlement to a pension runs. Those periods become periods which give entitlement to a pension by being credited.

(2) The following pre-service pensionable periods shall be credited:

(a) contribution periods in the service of, as an apprentice of or in another employment relationship with a domestic public-law employer,

(h) the period of a complete course of study … at a public school or school established under public law, institution of higher education, academy or related training establishment, provided that the statutory minimum duration of the course of study is not exceeded,

(k) time completed in an occupational training relationship in so far as that training constituted a precondition for the recruitment of the civil servant or where it was carried out with a national public-sector employer;

(l) a period of employment creating an obligation to pay pension insurance contributions under the provisions [of the General Social Security Law (Allgemeines Sozialversicherungsgesetz) of 9 September 1955, (*4)] applicable on 31 December 2004,

Exclusion of credit and waiver

Paragraph 54

(2) The following pre-service pensionable periods are excluded from being credited:

(a) periods completed by the civil servant before reaching the age of 18; this limitation does not apply to periods which must be credited in accordance with Paragraph 53(2)(a), (d), (k) and (l), if a transfer contribution is to be paid for such periods in accordance with social security legislation;

(5) The second indent of subparagraph 2(a) applies only to civil servants to whom Paragraph 88(1) does not apply ...’

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

9.The request has been made in the course of proceedings brought by Mr Lesar against the Beim Vorstand der Telekom Austria AG eingerichtetes Personalamt (Human Resources Department established by the management board of Telekom Austria AG; ‘the Human Resources Department’) concerning the latter’s refusal to take into account, for the purpose of calculating Mr Lesar’s pension rights, the periods of apprenticeship and employment preceding his entry into service which he had completed before reaching the age of 18.

Mr Lesar was born on 3 June 1949. Between the ages of 14 and 18 (from 9 September 1963 to 8 March 1967) he completed an apprenticeship with the Federal Postal and Telegraph Administration (Post- und Telegraphenverwaltung des Bundes). From 9 March 1967, he worked as a member of the contract staff of the Federal Government. In parallel to his work, he studied, from 14 September 1967 to 17 February 1972, at the Federal Academic High School for People in Employment. On 1 July 1972 he was taken on as a member of the contract staff of the Federal Government (Bund) in a public-law employment relationship.

10.Before he became a civil servant, Mr Lesar paid pension contributions to the Salaried Employees Pension Insurance Institution (Pensionsversicherungsanstalt der Angestellten; hereinafter ‘the Insurance Institution’) throughout the period of his apprenticeship and his employment relationship, both before and after attaining the age of 18.

11.By decision of the Post and Telegraph Administration for Styria (Post- und Telegraphendirektion für Steiermark) of 23 August 1973, he was unconditionally credited with the pensionable periods prior to entry into service between his 18th birthday and the date on which his public-law employment relationship commenced, a total of five years and 15 days. Those periods can be broken down as follows:

—work as a member of the contract staff for the period from 3 June 1967 to 13 September 1967;

—studies at the Federal Academic High School for People in Employment from 14 September 1967 to 17 February 1972; and

—work as a member of the contract staff for the period from 1 March 1972 to 30 June 1972.

12.By a decision of the Insurance Institution of 22 May 1974, the Federal Government was credited with and paid a ‘transfer contribution’ in respect of the periods of work completed by Mr Lesar as a member of the contract staff after his 18th birthday. The amount of the transfer contribution was ATS 4785.

13.By decisions of 28 March 1974 and 22 May 1974, Mr Lesar was awarded the sum of ATS 33160.05 as reimbursement, inter alia, of the pension contributions which he had paid during the period of his apprenticeship and work as a member of the contract staff before his 18th birthday.

14.Mr Lesar retired with effect from 1 September 2004. In that connection, the Human Resources Department fixed the amount of his pension by taking into account the prior periods recognised by the decision of 23 August 1973.

15.In August 2011, Mr Lesar sought the additional crediting of the periods of apprenticeship and work which he had completed before his 18th birthday. The Human Resources Department rejected that application by decision of 23 August 2012. Mr Lesar then brought an appeal against that decision before the Verfassungsgerichtshof (Constitutional Court). However, that court declined jurisdiction. Mr Lesar accordingly brought the matter before the referring court, before which he brought the same claim.

16.In the view of the referring court, rejection of the claim would be unjustified if, following the entry into force of Directive 2000/78, the legal position had changed. While the referring court finds that, in the present case, the refusal to take into consideration the periods of apprenticeship and employment completed before the age of 18 as pensionable periods prior to entry into service constitutes a difference in treatment based on age, it is unsure whether this may nevertheless be justified.

17.In those circumstances the Verwaltungsgerichtshof (Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Articles 2(1), 2(2)(a) and 6(1) of Directive 2000/78 to be interpreted as meaning that they are not compatible with a national provision — such as that in issue in the main proceedings — under which periods of apprenticeship and periods of employment as a contract agent with the Federal Government for which contributions to the compulsory pension insurance scheme were to be paid for the purposes of obtaining a civil servants’ pension are:

(a)to be credited as pensionable periods prior to entry into service if they are completed after the 18th birthday, whereby the Federal Government in this case receives an agreed “transferred” contribution in accordance with the provisions of social security law for crediting these periods from the social security agency; or, alternatively

not to be credited as pensionable periods prior to entry into service, if they are completed before the 18th birthday, whereby there is no agreed transfer to the Federal Government for such periods if they are not credited, and the insured party is reimbursed for any contributions made to the pension insurance scheme, especially considering that, in the event that these periods are subsequently required to be credited under EU law, there would be a possible claim for the refund of the sums reimbursed by the social security organisation from the civil servant as well as the subsequent creation of an obligation on the part of the social security organisation to pay an agreed contribution to the Federal Government?’

III – My analysis

18.In the case which gave rise to the judgment in Felber, C‑529/13, the Court was asked whether Article 2(1) and 2(2)(a) and Article 6(1) and (2) of Directive 2000/78 must be interpreted as precluding national legislation which excludes the crediting of periods of school education completed by a civil servant before the age of 18 for the purpose of the grant of pension entitlement and the calculation of the amount of his retirement pension, although those periods are credited when they are completed after that age is reached.

19.First, the Court took the view that, by excluding, for the purposes of calculating such a retirement pension, some civil servants from the benefit of having account taken of the periods of study which they completed before the age of 18, Paragraph 54(2)(a) of the PG 1965 affects the conditions of pay of those civil servants within the meaning of Article 3(1)(c) of Directive 2000/78. Accordingly, Directive 2000/78 applies to situations such as that at issue in the present case.

20.In that regard, the Court pointed out that the scope of Directive 2000/78 must be understood, in the light of Article 3(1)(c) and 3(3) thereof, read in conjunction with recital 13 of that directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157(2) TFEU. The Court also pointed out that the concept of pay, within the meaning of Article 157(2) TFEU, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer.

21.In that case, the issue was the failure to take periods of study completed by Mr Felber before the age of 18, and before his entry into the federal civil service, into account for the calculation of his pension points. It was established that the amount of the retirement pension depends on the periods of service and equivalent periods and on the salary received by the civil servant, and that the retirement pension constitutes a future cash payment, paid by the employer to his employees, as a direct consequence of their employment relationship. That pension is, under national law, regarded as pay which continues to be paid in the context of an employment relationship which continues after the civil servant becomes entitled to retirement benefits. That pension constitutes, on that basis, pay within the meaning of Article 157(2) TFEU.

22.Secondly, the Court took the view that the national legislation at issue establishes a difference in treatment that is directly based on the criterion of age, within the meaning of Article 2(1) and 2(2)(a) of Directive 2000/78.

23.Thirdly, the Court examined whether that difference of treatment could, however, be justified under Article 6(1) of Directive 2000/78.

24.The Court pointed out, first, that the crediting of periods completed by a civil servant prior to his entry into service and outside of his employment relationship is an exception which was introduced so as not to disadvantage, in terms of the acquisition of pension rights, civil servants who, prior to entering the federal civil service, achieved a higher level of education compared with those whose appointment has no specific educational requirement and who were, consequently, able to enter the civil service from the age of 18. Thus, the rules of the pension scheme for civil servants are said to be designed so that the total career to be taken into consideration for the purposes of the calculation of the amount of the retirement pension extends back to the minimum age for entry into State service. The national legislation at issue seeks to harmonise the starting date for contributions to the pension scheme and, therefore, the maintenance of the pensionable age. In that context, the exclusion of the crediting of periods of education completed before the age of 18 is said to be justified by the fact that the person concerned is not engaged, in principle, during those periods, in any gainful activity giving rise to the payment of contributions to the pension scheme.

25.According to the Court, in so far as the pursuit of such an aim ensures observance of the principle of equal treatment for all persons in a specific sector and relates to an essential element of their employment relationship, such as the time of retirement, that aim constitutes a legitimate employment policy.

26.The Court then went on to determine, as it is required to do under Article 6(1) of Directive 2000/78, whether the means of achieving that aim were appropriate and necessary.

27.As regards the appropriateness of Paragraph 54(2)(a) of the PG 1965, the Court noted that the minimum age for recruitment to the public service is set at 18 years and that, therefore, a civil servant can participate in and contribute to a civil servants’ pension scheme only after that age. Consequently, the exclusion, pursuant to that provision, of the crediting of periods of education completed before the age of 18 is, according to the Court, appropriate for achieving the legitimate objective of adopting an employment policy which enables all the members of the civil servants’ pension scheme to begin to contribute at the same age and to acquire the right to receive a full retirement pension, and thus guaranteeing equal treatment of civil servants.

28.In regard to the question whether the national legislation at issue in the main proceedings goes beyond what is necessary to attain the objective pursued, the Court pointed out that the application in the main proceedings sought to have account taken only of periods of education completed in an intermediate or secondary school, and not of periods of employment, as in Hütter, C‑88/08. Consequently, the Court took the view that the national legislation at issue in the main proceedings was coherent in the light of the justification stated by the referring court, namely the exclusion of periods during which the person concerned does not pay contributions to the pension scheme from the calculation of the retirement pension. It concluded that a measure such as that provided for in Paragraph 54(2)(a) of the PG 1965 is appropriate to achieve the objectives taken into consideration and does not go beyond what is necessary to achieve those objectives.

29.In the context of the present case, the referring court has formulated its question in order that the Court may indicate to it, in essence, whether that conclusion is capable of being transposed to periods of apprenticeship and periods of employment completed by a member of the contract staff who was in the service of the Federal Government before the age of 18. In other words, it wishes to know whether or not Article 2(1) and 2(2)(a) and Article 6(1) of Directive 2000/78 preclude national legislation under which periods of apprenticeship and periods of employment completed by a member of the contract staff in the service of the Federal Government are not taken into account for calculating civil service pension rights where the party concerned completed those periods before reaching the age of 18.

30.I should point out, first of all, that although it was asked whether there was justification in the light of paragraph 1 or paragraph 2 of Article 6 of Directive 2000/78, the Court, in its judgment in Felber, C‑529/13, chose to limit its examination to paragraph 1 of that article alone. That certainly explains the fact that, in the question which it has formulated in the present case, the referring court has not mentioned Article 6(2) of Directive 2000/78.

31.However, it is in fact in the light of Article 6(2) of Directive 2000/78 that I consider that the present case should be examined.

32.I should point out, in this regard, that even though the referring court has limited its question to the interpretation of Article 6(1) of that directive, that fact does not prevent the Court from providing the national court with all the elements of interpretation of EU law which may assist it in adjudicating on the case before it, whether or not that court has specifically made reference to those elements in its question.

33.I should also point out that, in its written observations, the Austrian Government expressed the view that the difference in treatment at issue in the main proceedings was justified not only in the light of Article 6(1) of Directive 2000/78, but also in the light of Article 6(2) thereof. Moreover, all the parties were invited by the Court to express their views at the hearing on the interpretation and applicability of Article 6(2) in the present case.

34.In my view, it is not appropriate to examine the national legislation at issue in the main proceedings primarily in the light of Article 6(1) of Directive 2000/78 inasmuch as the objective which that provision is designed to achieve is exactly the same as the objective which Article 6(2) of that directive allows the Member States to pursue, namely the fixing, for occupational social security schemes, of ages for admission or entitlement to retirement or invalidity benefits.

35.It is indubitably to that objective that the Court refers in its judgment in Felber, C‑529/13, when it expresses the view that the national legislation at issue is appropriate for achieving the legitimate objective of adopting an employment policy which enables all the members of the civil servants’ pension scheme to begin to contribute at the same age and to acquire the right to receive a full retirement pension, and thus guaranteeing equal treatment of civil servants.

36.In the context of the present case, the referring court has formulated its question in order that the Court may indicate to it, in essence, whether that conclusion is capable of being transposed to periods of apprenticeship and periods of employment completed by a member of the contract staff who was in the service of the Federal Government before the age of 18. In other words, it wishes to know whether or not Article 2(1) and 2(2)(a) and Article 6(1) of Directive 2000/78 preclude national legislation under which periods of apprenticeship and periods of employment completed by a member of the contract staff in the service of the Federal Government are not taken into account for calculating civil service pension rights where the party concerned completed those periods before reaching the age of 18.

37.I should point out, first of all, that although it was asked whether there was justification in the light of paragraph 1 or paragraph 2 of Article 6 of Directive 2000/78, the Court, in its judgment in Felber, C‑529/13, chose to limit its examination to paragraph 1 of that article alone. That certainly explains the fact that, in the question which it has formulated in the present case, the referring court has not mentioned Article 6(2) of Directive 2000/78.

As the Austrian Government has shown, it is indeed with a view to harmonising the starting date for contributions to the civil service pension scheme and, therefore, maintaining the pensionable age that the national legislation at issue in the main proceedings precludes the taking into account of periods of apprenticeship or employment completed before the age of 18. Such legislation is therefore an expression of the freedom enjoyed by the Member States, under Article 6(2) of Directive 2000/78, to fix, for occupational social security schemes, an age for admission to a scheme for the retirement pensions of civil servants which are paid under that scheme. Moreover, the wording of that provision is such that it allows the Member States not only to fix different ages for employees or groups or categories of employees, but also to adopt measures to ensure, within an occupational social security scheme, a uniform age for admission or entitlement to retirement or invalidity benefits.

38.In its judgments in HK Danmark, C‑476/11, and in Dansk Jurist- og Økonomforbund, C‑546/11, the Court held that, since Article 6(2) of Directive 2000/78 allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, that provision must be interpreted restrictively. (18)

39.According to the Court, an interpretation of Article 6(2) of Directive 2000/78 to the effect that that provision applies to any type of occupational social security scheme would have the effect of extending its scope, contrary to the restrictive nature of the interpretation to which that provision must be subject. (19)

40.It follows that Article 6(2) of Directive 2000/78 can apply only to occupational social security schemes that cover the risks of old age and invalidity. (20) Furthermore, not all aspects of an occupational social security scheme covering the risks of old age and invalidity come within the scope of that provision, but only those that are expressly referred to therein. (21)

41.Consequently, in order to determine whether a national measure comes within the exception provided for in Article 6(2) of Directive 2000/78, it is necessary to establish whether it is part of an occupational social security scheme which covers the risk of old age or invalidity and whether it is covered by one of the situations contemplated by that provision, namely the ‘fixing … of ages for admission or entitlement to retirement or invalidity benefits’, including the ‘use … of age criteria in actuarial calculations’.

42.I share the view of the Austrian Government that the conditions for application of Article 6(2) of Directive 2000/78 are satisfied in the present case.

43.The present case concerns national legislation which applies to an occupational social security scheme and which is designed to fix a uniform age for admission to a civil service pension scheme and a uniform age for entitlement to retirement pensions.

44.Although Directive 2000/78 does not define what is meant by ‘occupational social security schemes’, a definition of that concept is, however, included in Article 2(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. (22) It is thus apparent from that provision that occupational social security schemes are ‘schemes not governed by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [ (23)] whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional’.

45.As the Austrian Government correctly points out, the civil service retirement scheme is a scheme which provides the members of an occupational sector with benefits designed to replace the benefits provided by statutory social security schemes within the meaning of Article 2(1)(f) of Directive 2006/54. To that end, federal civil servants are excluded, under Paragraph 5(1)(3)(a) of the ASVG, from the pension insurance scheme introduced by the ASVG because they are employed in the federal public administration and their employment relationship gives them a right to retirement benefits equivalent to those provided for by the retirement insurance scheme.

46.It is also necessary to mention Article 7(2) of Directive 2006/54, which consolidates the Court’s case-law (24) by treating occupational social security schemes as ‘pension schemes for a particular category of worker such as that of public servants if the benefits payable under the scheme are paid by reason of the employment relationship with the public employer’, and the fact that such a scheme forms part of a general statutory scheme is irrelevant in that respect.

47.It is apparent from the foregoing that, by analogy, the civil service pension scheme at issue in the main proceedings must therefore be treated in the same way as an occupational social security scheme within the meaning of Directive 2000/78.

48.The Austrian Government is therefore justified, under Article 6(2) of Directive 2000/78, in applying national legislation intended to maintain, within that scheme, a uniform age for admission to that scheme and for entitlement to the retirement benefits which are provided thereunder.

IV – Conclusion

49.In view of the foregoing, I propose that the Court answer the question referred by the Verwaltungsgerichtshof (Administrative Court, Austria) along the following lines:

Article 2(1) and 2(2)(a) and Article 6(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which excludes the taking into account of periods of apprenticeship and employment completed by a civil servant before reaching the age of 18 for the purposes of granting pension rights and for calculating the amount of his retirement pension, in so far as that legislation seeks to guarantee, within a civil service retirement scheme, a uniform age for admission to that scheme and a uniform age for entitlement to the retirement benefits which are provided thereunder.

* * *

(1) Original language: French.

(2) OJ 2000 L 303, p. 16.

(3) BGBl. 340/1965; the ‘PG 1965’.

(4) BGBl. 189/1955; the ‘ASVG’.

(5) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 20 and the case-law cited.

(6)

Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 21 and the case-law cited.

(7) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 23.

(8) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraphs 25 to 27.

(9) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 31.

(10) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 32.

(11) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 34.

(12) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 36.

(13) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 39.

(14) See, inter alia, the judgment in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 56 and the case-law cited.

(15) Judgment in Felber, C‑529/13, EU:C:2015:20, paragraph 35.

(16) Judgments in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 46.

and in Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 41.

(19) Judgments in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 47, and in Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 42.

(20) Judgments in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 48, and in Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 43.

(21) Judgment in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 52.

(22) OJ 2006 L 204, p. 23.

(23) OJ 1979 L 6, p. 24.

(24) See, inter alia, the judgments in Beune, C‑7/93, EU:C:1994:350, and in Griesmar, C‑366/99, EU:C:2001:648.