Employers who transfer employees between member states may need to consider how to ensure that members’ benefits are not adversely affected by the transfer in light of a decision of the Advocate General in Maurits Casteels v British Airways plc (C-379/09).
Mr Casteels had worked for different BA companies in different member states for several years. The issue arose after he had worked in Germany for almost three years and then voluntarily moved to another member state. The rules relating to qualifying periods in Germany are radically different to those in the UK; in very broad terms, the upshot of legislation and a collective bargaining agreement meant that Mr Casteels could not qualify for a pension under the German scheme because he had not completed five years service with the German company.
Broadly, the Advocate General concluded that the entire duration of an employee’s employment with the same employer at various establishments should be taken into account with regard to vesting/qualifying periods. He concluded that the qualifying period applicable to Mr Casteels’ participation in the German occupational pension scheme was capable of obstructing freedom of movement, even though he had transferred voluntarily to his employer’s establishment in another member state.
Comment: the European Court of Justice is not obliged to follow the Advocate General’s opinion (though it generally does). Multinational employers should be aware that, where an employee transfers to another member state but remains in the employment of the same corporate group, qualifying/vesting periods in relation to pension schemes (especially long ones) may breach EU law.