19.12.2009

Official Journal of the European Union

C 312/16

(Case C-379/09)

2009/C 312/25

Language of the case: Dutch

Referring court

Parties to the main proceedings

Appellant: Maurits Casteels

Respondent: British Airways plc

Questions referred

1.Can Article 42 EC, in the absence of action on the part of the Council, be invoked by a private individual against his private-sector employer in a dispute before national courts?

2.Do Article 39 EC, prior to the adoption of Directive 98/49, (1) and Article 42 EC, individually or in conjunction with each other, preclude the following situation:

In the case where an employee who is in the service of the same legal entity/employer, otherwise than in the context of postings, is employed successively in a number of operating units of that employer in various Member States and in each case is subject to the supplementary pension plans applicable to those operating units,

—for the determination of a period for the acquisition of definitive entitlements to supplementary pension benefits (based on the contributions of the employer and the employee) in a particular Member State, no account is taken of the years of service already completed with the same employer in another Member State or of the employee’s membership of a supplementary pension scheme there,

—the transfer of an employee, with his agreement, to an operating unit of the same employer in another Member State is treated as equivalent to the situation, as envisaged in the pension rules, of an employee voluntarily leaving an operating unit, in which case entitlements to a supplementary pension are limited to the employee’s own contributions,

—and that situation has the unfavourable consequence that the employee loses his entitlements to supplementary pension benefits in relation to his employment in that Member State, which would not have been the case had he worked for his employer in only one Member State and remained a member of the supplementary pension scheme of that Member State?

Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community (OJ 1998 L 209, p. 46).