ECJ: Lawyers’ Pension Scheme Partly Contrary to EU Law

Oct 7, 2022 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has declared the requirements for early retirement pensions for lawyers to be partly contrary to EU law.

The original litigation concerned a German-Polish lawyer who worked in Germany, Switzerland, and Austria. In Austria, he also paid into the retirement funds of the Vienna Bar Association. He eventually wanted to draw an early retirement pension from the Austrian Bar, but at the same time continue to practise law in Germany and Switzerland. The Austrian Lawyers' Act (Rechtsanwaltsordnung, RAO), specifically Section 50(2)(c)(aa)) provides that the individual affected would have to refrain from practising law in Austria as well as internationally in order to draw an early retirement pension.

The lawyer took action against this, and the ECJ finally dealt with the issue.

According to the ECJ, the obligation to refrain from practising law both at home and internationally constitutes an interference with the freedom of movement of workers (Art 45 of the Treaty on the Functioning of the European Union - TFEU) and the freedom of establishment (Art 49 TFEU). This is because individuals who are entitled to an early retirement pension could be prevented from exercising their freedom of movement rights as a result of this requirement. In particular, giving up practising as a lawyer could be difficult if a person has not yet reached the statutory retirement age in other Member States.

According to the ECJ, justifying this rule on the grounds of employability policy would be legitimate – the Austrian Bar had argued that the relevant provision was intended to protect active lawyers from competitors who had retired. However, according to the ECJ, the requirement to give up practising law abroad does go beyond that which is strictly necessary.

ECJ C-58/21 (15 September 2022)