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EUROPEAN COMMISSION EMPL ndash FRAdvC 0418Rulings of the Court of Justice concerning the coordination of social security systems (mid-2017 to mid-2018)SECREacuteTARIAT ndash 24092018

Orig FR-EN-DE

ADVISORY COMMITTEE FOR THE COORDINATION OF SOCIAL SECURITY SYSTEMS

Subject Rulings of the Court of Justice concerning the coordination of social security systems (mid-2017 to mid-2018)

Note from the Secretariat of 24 September 2018

In this note the Secretariat informs the Advisory Committee of the rulings of the Court of Justice of the European Union and the European Court of Human Rights concerning the coordination of social security systems over the period from the summer of 2017 to the summer of 2018

I Applicable legislation

1 Judgment of 1812018 C-4517 Jahin

2 Judgment of 24102017 C-47416 Belu

3 Judgment of 622018 C-35916 Altun

4 Judgment of 1172018 C-35615 Commission v Belgium

5 Judgment of 692018 C 52716 Alpenrind

II Pensions

6 Judgment of 7122017 C-18916 Boguslawa Zaniewicz-Dybeck

7 Judgment of 1532018 C-43116 Blanco Marqueacutes

8 Judgment of 2862018 C-217 Crespo Rey

9 Judgment of 3052018 C-51716 Czerwiński

III Unemployment

10 Judgment of 2132018 C-55116 Klein Schiphorst

IV Free movement of workers

11 Judgment of 20122017 C-44216 Gusa

12 Judgment of 732018 C-65116 DW

V European citizenship

13 Judgment of 2132018 C- 67916 A

VI European Court of Human Rights

14 Judgment of 2642018 Čakarević v Croatia (application no 4892113)

15 Judgment of 2882018 Somorjai v Hungary (application no 6093413)



The questions

2 The request has been made in the context of proceedings between Mr Freacutedeacuteric Jahin on the one hand and the ministre de lrsquoEacuteconomie et des Finances (Minister for Economic Affairs and Finance France) and the ministre des Affaires sociales et de la Santeacute (Minister for Social Affairs and Health France) on the other hand concerning the payment of several fiscal contributions and levies for the years 2012 to 2014 relating to income from assets received in France

11 Mr Jahin a French national has lived in China since 2003 He pursues a professional activity in China and is affiliated to a private social security scheme there

12 Between 2012 and 2014 he was subject in France to various levies on income from real estate and on a capital gain realised on the transfer of immovable property

13 Having already been requested to deliver a preliminary ruling by the referring court the Conseil drsquoEacutetat (Council of State France) in another case relating to identical levies which gave rise to the judgment of 26 February 2015 de Ruyter (C-62313 EUC2015123) the Court held in essence that such levies in so far as they have a direct and relevant link with some of the branches of social security listed in Article 4 of Regulation No 140871 come within the scope of that regulation and are subject to the principle that the legislation of a single Member State only is to apply laid down by Article 13(1) of that regulation even though they are imposed on the income from assets of taxable persons irrespective of the pursuit of any professional activity

14 Following that judgment the referring court held by a ruling of 27 July 2015 that any natural person affiliated to a social security scheme in another Member State is entitled to seek the discharge of the contributions which were imposed in France on the income received from his assets

15 The detailed arrangements for reimbursement of the levies paid in breach of EU law were set out by two press releases of 20 October 2015 issued by the secreacutetaire drsquoEacutetat chargeacute du Budget (Minister of State for Finance and Public Accounts with responsibility for the Budget France) and by the directeur geacuteneacuteral des Finances publiques (Director-General for Public Finance France) It is stated therein inter alia that the right to reimbursement is confined solely to natural persons affiliated to a social security scheme of a State other than the French Republic within the European Union the EEA or the Swiss Confederation thus excluding natural persons affiliated to a social security scheme in a third country

2

17 In those circumstances the Conseil drsquoEacutetat (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling

lsquoMust Articles 63 64 and 65 TFEU be interpreted as meaning that

1) the fact that a person insured under a social security scheme in a third country outside the European Union other than members of the [EEA] or [the Swiss Confederation] is subject to contributions on income from assets provided for under French legislation and coming within the scope of Regulation [No 8832004] in the same way as persons insured under the social security scheme in France whereas a person insured under the social security scheme of a Member State other than [the French Republic] cannot be subject to those contributions taking into account the provisions of that regulation constitutes a restriction on the movement of capital from and to third countries which is in principle prohibited by Article 63 TFEU

2) if that first question is answered in the affirmative can that restriction on the movement of capital which arises as a combined result of French legislation which imposes the disputed contributions on all recipients of certain income from assets without in itself making any distinction as to the place in which they are insured under a social security scheme and a European Union act of secondary legislation be regarded as compatible with the requirements of the said article of the [FEU Treaty] in particular

ndash in light of Article 64(1) [TFEU] for the movement of capital coming within the scope of that paragraph on the ground that the restriction arises due to the application of the principle that the legislation of a single Member State is to apply as provided in Article 11 of the Regulation [No 8832004] introduced into EU law by Article 13 of Regulation [No 140871] in other words on a date prior to 31 December 1993 even though the contributions on income from the assets in question were established or made applicable after 31 December 1993

ndash in light of Article 65(1) [TFEU] on the grounds that the French tax legislation when applied in a way compliant with Regulation [No 8832004] of 29 April 2004 creates a distinction between taxable persons whose situations differ in relation to the criterion for being insured under a social security scheme

ndash in light of the existence of overriding reasons in the public interest to justify a restriction on the free circulation of capital derived from the fact that the provisions that might be regarded as restricting the movement of capital from or to a third country correspond to the aim of Regulation [No 8832004] of allowing free movement of workers within the European Unionrsquo

Consideration

22 With regard to the material scope of Article 63 TFEU while the FEU Treaty does not define the concept of lsquomovement of capitalrsquo it is apparent from settled case-law of the Court that such movement within the meaning of that article includes investments in property within the territory of a Member State by non-residents (see to that effect judgments of 11 January 2001 Stefan C-46498 EUC20019 paragraph 5 of 5 March 2002 Reisch and Others C-51599 C-51999 to C-52499 and C-52699 to C-54099 EUC2002135 paragraph 30 and of 8 September 2005 Blanckaert C-51203 EUC2005516 paragraph 35)

3

23 It follows from the foregoing that levies such as those made under the national legislation at issue in the main proceedings in so far as they relate to income from real estate and to capital gains realised following the transfer of immovable property received in a Member State by a natural person who holds the nationality of that State but resides in a third country other than an EEA Member State or the Swiss Confederation come within the concept of lsquomovement of capitalrsquo within the meaning of Article 63 TFEU

24 It is next necessary to determine whether the tax treatment reserved by the national legislation at issue to its nationals who reside in a third country other than an EEA Member State or the Swiss Confederation and are affiliated to a social security scheme of that third country constitutes a restriction on the movement of capital within the meaning of Article 63 TFEU

25 It follows from settled case-law of the Court that the measures prohibited by Article 63(1) TFEU as restrictions on the movement of capital include those that are such as to discourage non-residents from making investments in a Member State or to discourage that Member Statersquos residents from doing so in other States (judgments of 23 February 2006 van Hilten-van der Heijden C-51303 EUC2006131 paragraph 44 of 26 May 2016 NN (L) International C-4815 EUC2016356 paragraph 44 and of 2 June 2016 Pensioenfonds Metaal en Techniek C-25214 EUC2016402 paragraph 27)

26 In the present case it is common ground that the French legislation treats in the same way on the one hand its nationals who reside in a third country other than an EEA Member State or the Swiss Confederation and are affiliated to a social security scheme in that third country and on the other hand French nationals who reside in France and are affiliated to a social security scheme there since in both cases they are equally subject to the levies on capital income provided for by that national legislation

27 By contrast more favourable tax treatment is reserved to EU nationals affiliated to a social security scheme in another Member State an EEA Member State or the Swiss Confederation given that they are exempt from those levies

28 Such a difference in treatment is liable to dissuade natural persons affiliated to a social security scheme of a third country other than the EEA Member States or the Swiss Confederation from making investments in immovable property in the Member State whose nationality they hold and is therefore liable to hinder the movement of capital from such third countries to that Member State

29 Consequently national legislation such as that at issue in the main proceedings constitutes a restriction on the free movement of capital between a Member State and a third country which is in principle prohibited by Article 63 TFEU

30 Finally it is necessary to assess whether such a restriction on the free movement of capital may be justified

35 The question therefore arises as to whether as regards the collection of levies such as those at issue in the main proceedings there is an objective difference in situation in terms of their residence between an EU national covered by a social security scheme of a Member State other than that of the Member State concerned and a national of that Member State affiliated to a social security scheme in a third country other than an EEA Member State or the Swiss Confederation

4

36 In that regard it should be noted that the criterion used by the national legislation at issue in the main proceedings to differentiate the situation between natural taxable persons is not explicitly linked to their residence but is based on their affiliation to a social security scheme

38 It is therefore necessary to ascertain whether an EU national affiliated to a social security scheme of another Member State is having regard to the objective the purpose and the content of the legislation of that Member State in a situation comparable to that of a national of that Member State but who resides in a third country other than an EEA Member State or the Swiss Confederation and is affiliated to a social security scheme in that third country (see to that effect judgment of 2 June 2016 Pensioenfonds Metaal en Techniek C-25214 EUC2016402 paragraph 48)

39 As regards in the present case the objective of the French legislation it must be borne in mind as noted in paragraphs 13 to 15 of the present judgment that the press releases at issue in the main proceedings merely clarify the detailed arrangements for the reimbursement of levies collected in breach of EU law in respect of natural persons who receive income from assets in France but are covered by the social security scheme of another Member State

40 In accordance with the principle that the legislation of a single Member State only is to apply in matters of social security as laid down by Article 11 of Regulation No 8832004 a Member State is not allowed in respect of EU nationals affiliated to a social security scheme of another Member State to collect levies such as those at issue in the main proceedings which although categorised as a tax under national legislation have a direct and sufficiently relevant link to the legislation governing the branches of social security listed in Article 3(1) of Regulation No 8832004 and are specifically allocated to the funding of the social security scheme of the first Member State (see to that effect judgment of 26 February 2015 de Ruyter C-62313 EUC2015123 paragraphs 23 24 26 and 39)

41 That principle that the legislation of a single Member State applies in matters of social security is designed as regards EU nationals who move within the European Union to avoid the complications which may ensue from the simultaneous application of a number of national legislative systems and to eliminate the unequal treatment which would be the consequence of a partial or total overlapping of the applicable legislation (see to that effect judgment of 26 February 2015 de Ruyter C-62313 EUC2015123 paragraph 37 and the case-law cited)

42 It follows from the foregoing considerations that there is an objective difference between on the one hand the situation of a national of the Member State concerned who resides in a third country other than an EEA Member State or the Swiss Confederation and is affiliated to a social security scheme in that third country and on the other hand the situation of an EU national affiliated to a social security scheme of another Member State in so far as that latter national alone is liable to benefit from the principle that the legislation of a single Member State only is to apply in matters of social security as laid down by Article 11 of Regulation No 8832004 by reason of his movement within the European Union

43 By contrast there is no objective difference between the situation of a national of a Member State who resides in a third country other than an EEA Member State or the Swiss Confederation and is affiliated to a social security scheme in that third country and that of a national of that Member State who resides there and is affiliated to a social

5

security scheme there in so far as in both cases they have not made use of the freedom of movement within the European Union and cannot therefore rely on the principle that the legislation of a single Member State only is to apply in matters of social security

44 It follows that national legislation such as that at issue in the main proceedings may be justified having regard to Article 65(1)(a) TFEU by the objective difference in situation which exists between a natural person who is a national of a Member State but resides in a third country other than an EEA Member State or the Swiss Confederation and is affiliated to a social security scheme in that third country and an EU national residing and affiliated to a social security scheme in another Member State

45 In any event it must be added that a different interpretation would amount to granting a national of a Member State residing in a third country other than an EEA Member State or the Swiss Confederation such as Mr Jahin protection under the principle that the legislation of a single Member State only is to apply in matters of social security laid down in Article 11 of Regulation No 8832004 even though in accordance with Article 2(1) of that regulation that principle applies only to nationals of a Member State who are subject to the social legislation of one or more Member States

46 However since the FEU Treaty does not contain any provision extending the free movement of workers to persons who migrate to a third country it is important to ensure that the interpretation of Article 63(1) TFEU as regards relations with third countries other than the EEA Member States or the Swiss Confederation does not enable persons who do not come within the territorial scope of the free movement of workers to profit from that freedom (see to that effect judgment of 13 November 2012 Test Claimants in the FII Group Litigation C-3511 EUC2012707 paragraph 100)

47 In the light of the foregoing the answer to the questions referred is that Articles 63 and 65 TFEU must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings under which a national of that Member State who resides in a third country other than an EEA Member State or the Swiss Confederation and is affiliated to a social security scheme in that third country is subject in that Member State to levies on income from assets for the purpose of contributing to the social security scheme established by that Member State whereas an EU national covered by a social security scheme of another Member State is exempted therefrom by reason of the principle that the legislation of a single Member State only is to apply in matters of social security pursuant to Article 11 of Regulation No 8832004

httpcuriaeuropaeujurisdocumentdocumentjsftext=ampdocid=198526amppageIndex=0ampdoclang=ENampmode=lstampdir=ampocc=firstamppart=1ampcid=302416


The questions

Article 19 of Regulation (EC) No 9872009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 8832004 on the coordination of social security systems must be interpreted as meaning that an A1 certificate issued by the institution designated by the competent authority of a Member State under Article 12(1) and (2) of Regulation (EC) No 8832004

6

of the Parliament and of the Council of 29 April 2004 on the coordination of social security systems is binding on both the social security institutions of the Member State in which the work is carried out and the courts of that Member State even where it is found by those courts that the conditions under which the worker concerned carries out his activities clearly do not come within the material scope of that provision of Regulation No 8832004

httpcuriaeuropaeujurisdocumentdocumentjsftext=ampdocid=196287amppageIndex=0ampdoclang=frampmode=lstampdir=ampocc=firstamppart=1ampcid=177392


The questions

2 The request has been made in criminal proceedings brought against Mr Oumlmer Altun Mr Abubekir Altun Mr Sedrettin Maksutogullari and Mr Yunus Altun as well as Absa NV M Sedat BVBA and Alnur BVBA regarding the posting of Bulgarian workers to Belgium

17 The Sociale Inspectie (Social Security Inspectorate Belgium) conducted an investigation into the employment of the staff of Absa a company incorporated under Belgian law that is active in the construction sector in Belgium

18 That investigation found that since 2008 Absa had employed practically no staff and subcontracted the work at all its sites to Bulgarian undertakings posting workers to Belgium It also revealed that the use of such posted workers was not declared to the institution responsible for the collection of social security contributions in Belgium those workers having E 101 or A 1 certificates issued by the institution designated by the competent Bulgarian authority in accordance with Article 11(1) of Regulation No 57472

19 A judicial investigation conducted in Bulgaria through letters rogatory ordered by a Belgian investigating magistrate found that those Bulgarian undertakings carried out no significant activity in Bulgaria

20 On the basis of the results of that investigation on 12 November 2012 the Belgian Social Inspectorate sent to the institution designated by the competent Bulgarian authority a reasoned request for review or withdrawal of the E 101 or A 1 certificates issued to the posted workers concerned in the main proceedings

21 According to the Belgian Governmentrsquos observations on 9 April 2013 after a letter of reminder had been sent by the Belgian social security inspectorate the competent Bulgarian institution replied to that request by sending a summary of the E 101 and A 1 certificates issued indicating their period of validity and stating that the conditions of posting were at the time those certificates were issued met for administrative purposes by the various Bulgarian undertakings in question The facts established by the Belgian authorities were not however taken into account in that reply

22 The Belgian authorities began legal proceedings against the defendants in the main proceedings in their capacity as employers servants or agents first for having caused or allowed work to be carried out by foreign nationals who were not permitted or authorised to stay in Belgium for more than three months or to settle there without a work permit

7

second for failing when those workers commenced employment to make the declaration required by law to the institution responsible for collecting social security contributions and third for failing to register those workers with the Rijksdienst voor Sociale Zekerheid (National Social Security Office Belgium)

25 By judgment of 10 September 2015 the Hof van beroep Antwerpen (Court of Appeal Antwerp Belgium) convicted the defendants in the main proceedings While that court found that an E 101 or A 1 certificate had been issued for each of the posted workers in question and that the Belgian authorities had not exhausted the procedure laid down for cases of dispute over the validity of the certificates it nevertheless considered that it was not bound by those circumstances since those certificates had been obtained fraudulently

26 On 10 September 2015 the defendants in the main proceedings brought an appeal on a point of law against that judgment

27 Being uncertain as to the correct interpretation of Article 11(1) of Regulation No 57472 the Hof van Cassatie (Court of Cassation Belgium) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling

lsquoCan an E 101 certificate issued under Article 11(1) of Regulation [No 57472] as applicable before its repeal by Article 96(1) of Regulation [No 9872009] be annulled or disregarded by a court other than that of the sending Member State if the facts which are submitted for assessment by it support the conclusion that the certificate was fraudulently obtained or relied onrsquo

Consideration

38 It is also clear from the obligations to cooperate arising from Article 4(3) TEU that those obligations would not be fulfilled mdash and the aims of Article 14(1)(a) of Regulation No 140871 and Article 11(1)(a) of Regulation No 57472 would be thwarted mdash if the competent institution of the Member State in which the work is carried out were to consider that it was not bound by the E 101 certificate and made such workers subject to its own social security system (see by analogy judgments of 30 March 2000 Banks and Others C-17897 EUC2000169 paragraph 39 and the case-law cited and of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 40)

39 Consequently in so far as an E 101 certificate establishes a presumption that the worker concerned is properly registered with the social security system of the Member State in which the undertaking employing him is established it is binding on the competent institution of the Member State in which that person actually works (see to that effect judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 41 and the case-law cited)

40 Indeed the principle of sincere cooperation also implies that of mutual trust

41 Therefore for as long as an E 101 certificate is not withdrawn or declared invalid the competent institution of the Member State in which an employee actually works must take account of the fact that that person is already subject to the social security legislation of the Member State in which the undertaking employing him is established and that institution cannot therefore subject the worker in question to its own social security system (judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 43 and the case-law cited)

8

42 It should however be noted that it follows from the principle of sincere cooperation that any institution of a Member State must carry out a diligent examination of the application of its own social security system It also follows from that principle that the institutions of the other Member States are entitled to expect the institution of the Member State concerned to fulfil that obligation (see by analogy judgment of 3 March 2016 Commission v Malta C-1214 EUC2016135 paragraph 37)

43 As a result it is incumbent on the competent institution of the Member State which issued the E 101 certificate to reconsider the grounds for its issue and if appropriate to withdraw the certificate if the competent institution of the Member State in which the employee actually works expresses doubts as to the accuracy of the facts on which the certificate is based and consequently of the information contained therein in particular because that information does not meet the requirements of Article 14(1)(a) of Regulation No 140871 (see to that effect judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 44 and the case-law cited)

44 Under Article 84a(3) of Regulation No 140871 in the event that the institutions concerned do not reach an agreement on in particular the question how the particular facts of a specific case are to be assessed and consequently on the question whether it is covered by Article 14(1)(a) of Regulation No 140871 it is open to them to refer the matter to the Administrative Commission referred to in Article 80 of that regulation (see by analogy judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 45 and the case-law cited)

45 If the Administrative Commission does not succeed in reconciling the points of view of the competent institutions on the question of the legislation applicable it is at the least open to the Member State in which the employee concerned actually works without prejudice to any legal remedies existing in the Member State to which the issuing institution belongs to bring infringement proceedings under Article 259 TFEU in order to enable the Court to examine in those proceedings the question of which legislation applies to such an employee and consequently whether the information contained in the E 101 certificate is accurate (judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 46 and the case-law cited)

46 Thus even in the case of a manifest error of assessment of the conditions governing the application of Regulations No 140871 and No 57472 and even if it were established that the conditions under which the workers concerned carry out their activities clearly do not fall within the material scope of the provision on the basis of which the E 101 certificate was issued the procedure to be followed in order to resolve any dispute between the institutions of the Member States concerned as regards the validity or the accuracy of an E 101 certificate must be complied with (see to that effect judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraphs 52 and 53)

47 Regulation No 9872009 currently in force codified the Courtrsquos case-law affirming the binding nature of the E 101 certificate and the exclusive competence of the issuing institution to assess the validity of that certificate and expressly retaining that procedure as a means of resolving disputes concerning both the accuracy of documents drawn up by the competent institution of a Member State and the determination of the legislation applicable to the worker concerned (see to that effect judgment of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 59)

48 According to the Courtrsquos settled case-law such considerations must not however result in individuals being able to rely on EU law for abusive or fraudulent ends (see to

9

that effect judgments of 2 May 1996 Paletta C-20694 EUC1996182 paragraph 24 of 21 February 2006 Halifax and Others C-25502 EUC2006121 paragraph 68 of 12 September 2006 Cadbury Schweppes and Cadbury Schweppes Overseas C-19604 EUC2006544 paragraph 35 and of 28 July 2016 Kratzer C-42315 EUC2016604 paragraph 37)

49 The principle of prohibition of fraud and abuse of rights expressed by that case-law is a general principle of EU law which individuals must comply with The application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (see to that effect judgments of 5 July 2007 Kofoed C-32105 EUC2007408 paragraph 38 and of 22 November 2017 Cussens and Others C-25116 EUC2017881 paragraph 27)

50 In particular findings of fraud are to be based on a consistent body of evidence that satisfies both an objective and a subjective factor

51 The objective factor consists in the fact that the conditions for obtaining and relying on an E 101 certificate laid down in Title II of Regulation No 140871 and referred to in paragraph 34 of the present judgment are not met

52 The subjective factor corresponds to the intention of the parties concerned to evade or circumvent the conditions for the issue of that certificate with a view to obtaining the advantage attached to it

53 The fraudulent procurement of an E 101 certificate may thus result from a deliberate action such as the misrepresentation of the real situation of the posted worker or of the undertaking posting that worker or from a deliberate omission such as the concealment of relevant information with the intention of evading the conditions governing the application of Article 14(1)(a) of Regulation No 140871

54 In that context when in the dialogue provided for in Article 84a(3) of Regulation No 140871 the institution of the Member State to which the workers have been posted puts before the institution that issued the E 101 certificates concrete evidence that suggests that those certificates were obtained fraudulently it is the duty of the latter institution by virtue of the principle of sincere cooperation to review in the light of that evidence the grounds for the issue of those certificates and where appropriate to withdraw them as is clear from the case-law referred to in paragraph 43 of the present judgment

55 If the latter institution fails to carry out such a review within a reasonable period of time it must be possible for that evidence to be relied on in judicial proceedings in order to satisfy the court of the Member State to which the workers have been posted that the certificates should be disregarded

56 The persons who are alleged in such proceedings to have used posted workers ostensibly covered by fraudulently obtained certificates must however be given the opportunity to rebut the evidence on which those proceedings are based with due regard to the safeguards associated with the right to a fair trial before the national court decides if appropriate that the certificates should be disregarded and gives a ruling on the liability of those persons under the applicable national law

57 In the present case it is clear from the information provided by the referring court that the investigation undertaken in Bulgaria by the Belgian Social Security Inspectorate

10

made it possible to establish that the Bulgarian undertakings which posted the workers in question in the main proceedings carried out no significant activity in Bulgaria

58 It is also clear from the information provided by the referring court that the certificates at issue in the main proceedings were obtained fraudulently by means of a representation of facts which did not reflect the reality of the situation with the intention of evading the conditions laid down in EU legislation in respect of the posting of workers

59 Moreover as was noted in paragraph 21 of the present judgment it is stated in the observations of the Belgian Government mdash which must be verified by the referring court in the light of the facts established during the legal proceedings mdash that the competent Bulgarian institution when called upon to review and withdraw the certificates at issue in the main proceedings in the light of the results of the investigation referred to in paragraph 57 of the present judgment failed to take those results into consideration for the purpose of reviewing the grounds for the issue of those certificates

60 In circumstances such as those in the main proceedings a national court may disregard the E 101 certificates and must determine whether the persons suspected of having used posted work

61 In the light of all the foregoing the answer to the question referred is that Article 14(1)(a) of Regulation No 140871 and Article 11(1)(a) of Regulation No 57472 must be interpreted as meaning that when an institution of a Member State to which workers have been posted makes an application to the institution that issued E 101 certificates for the review and withdrawal of those certificates in the light of evidence collected in the course of a judicial investigation that supports the conclusion that those certificates were fraudulently obtained or relied on and the issuing institution fails to take that evidence into consideration for the purpose of reviewing the grounds for the issue of those certificates a national court may in the context of proceedings brought against persons suspected of having used posted workers ostensibly covered by such certificates disregard those certificates if on the basis of that evidence and with due regard to the safeguards inherent in the right to a fair trial which must be granted to those persons it finds the existence of such fraud


4 Judgment of 1172018 C-35615 Commission cBelgique

The action

15 On 21 November 2013 the Commission sent the Kingdom of Belgium a letter of formal notice relating to the incompatibility of Articles 23 and 24 of the Programme Law with Articles 11 and 12 and Article 76(6) of Regulation No 8832004 Article 5 of Regulation No 9872009 and Decision No A1

16 In that letter the Commission objected to the adoption by the Kingdom of Belgium of Articles 23 and 24 of the Programme Law which entitle the competent national authorities to require unilaterally and without following the dialogue and conciliation procedure set out in the regulations in question that the national legislation on social security matters is to apply to posted workers who are already subject to a social security

11

scheme in the Member State in which their employer normally carries out its activities on the ground that the issuing by the social security body of that Member State of a document showing that such workers are subject to the social security scheme of that Member State (lsquoA1 certificatersquo) is an abuse of rights pursuant to Regulations No 8832004 and No 9872009

17 By letter of 20 January 2014 the Kingdom of Belgium replied to the letter of formal notice dated 21 November 2013 invoking inter alia the maxim fraus omnia corrumpit and the prohibition of abuse of rights as general principles of law that allow Member States to adopt national provisions that derogate from secondary EU legislation

18 In addition the Belgian Government claimed that Regulations No 8832004 and No 9872009 allowed Member States to adopt unilateral measures such as those provided for in Articles 23 and 24 of the Programme Law when they consider that fraud or an abuse of rights will occur as a result of applying those regulations

19 On 25 September 2014 the Commission sent a reasoned opinion to the Kingdom of Belgium which replied by letter dated 24 November 2014 informing the Commission inter alia of the temporary suspension of the measures laid down in Articles 23 and 24 of the Programme Law on account of the pending infringement procedure

20 As it was not satisfied with that reply the Commission brought the present action

Consideration

85 In that case-law the Court held that the competent institution of the Member State in which the employer normally carries out its activity declares in the A1 certificate that its own social security scheme will remain applicable to the posted workers for the duration of their posting Thus by virtue of the principle that workers are to be covered by only one social security system the A1 certificate necessarily implies that the social security scheme of the Member State to which the worker is posted cannot apply (see to that effect judgments of 10 February 2000 FTS C-20297 EUC200075 paragraph 49 and of 26 January 2006 Herbosch Kiere C-205 EUC200669 paragraph 21)

86 The principle of sincere cooperation laid down in Article 4(3) TEU and the objectives pursued by Article 12(1) of Regulation No 8832004 and Article 5(1) of Regulation No 9872009 would be thwarted if the Member State to which workers are posted could adopt legislation that allowed its own institutions to consider unilaterally that they are not bound by the particulars contained in the certificate and to make those workers subject to its own social security scheme (see to that effect judgments of 10 February 2000 FTS C-20297 EUC200075 paragraph 52 of 26 January 2006 Herbosch Kiere C-205 EUC200669 paragraph 23 and of 6 February 2018 Altun and Others C-35916 EUC201863 paragraph 38)

87 Consequently inasmuch as an A1 certificate establishes a presumption that posted workers are properly affiliated to the social security scheme of the Member State in which the undertaking which posted those workers is established such a certificate is binding as a rule on the competent institution of the Member State to which those workers are posted (see to that effect judgments of 10 February 2000 FTS C-20297 EUC200075 paragraph 53 of 26 January 2006 Herbosch Kiere C-205 EUC200669 paragraph 24 and of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 41)

12

99 It is true that the Court has consistently held that individuals may not rely on EU rules for abusive or fraudulent ends as the principle of prohibition of fraud and abuse of rights is a general principle of EU law which individuals must comply with The application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (judgment of 6 February 2018 Altun and Others C-35916 EUC201863 paragraphs 48 and 49 and the case-law cited)

100 In that context the Court has held that when in the dialogue provided for in Article 76(6) of Regulation No 8832004 the institution of the Member State to which the workers have been posted puts before the institution that issued the A1 certificates concrete evidence that suggests that those certificates were obtained fraudulently it is the duty of the latter institution by virtue of the principle of sincere cooperation to review in the light of that evidence the grounds for the issue of those certificates and where appropriate to withdraw them (judgment of 6 February 2018 Altun and Others C-35916 EUC201863 paragraph 54)

101 If the latter institution fails to carry out such a review within a reasonable period of time it must be possible for that evidence to be relied on in judicial proceedings in order to satisfy the court of the Member State to which the workers have been posted that the certificates should be disregarded (judgment of 6 February 2018 Altun and Others C-35916 EUC201863 paragraph 55)

102 In such a case a national court may disregard the A1 certificates concerned and must determine whether the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently may be held liable under the applicable national law (judgment of 6 February 2018 Altun and Others C-35916 EUC201863 paragraph 60)

103 However the persons who are alleged in such proceedings to have used posted workers ostensibly covered by fraudulently obtained certificates must be given the opportunity to rebut the evidence on which those proceedings are based with due regard to the safeguards associated with the right to a fair trial before the national court decides if appropriate that the certificates should be disregarded and gives a ruling on the liability of those persons under the applicable national law (judgment of 6 February 2018 Altun and Others C-35916 EUC201863 paragraph 56)

104 The Court finds that in the present case the national legislation at issue does not satisfy the conditions set out in paragraphs 100 and 101 of this judgment

105 First that legislation does not lay down an obligation to initiate the dialogue and conciliation procedure provided for by Regulations No 8832004 and No 9872009 Secondly the legislation is not limited to conferring on the national court alone the power to make a finding of fraud and to disregard on that ground an A1 certificate but provides that outside any court proceedings Belgian social security institutions and Belgian social security inspectors may decide that posted workers are to be subject to Belgian social security legislation

108 In the fourth place with regard to the Kingdom of Belgiumrsquos argument that even when the person concerned is already subject to the social security scheme of the Member State of the issuing institution being made subject to Belgian social security does not result in the overlapping application of two such schemes since pursuant to Article 6(1)(a) of Regulation No 9872009 the person concerned is to be made provisionally subject to

13

the legislation of the Member State in which the person actually pursues his or her employment or self-employment the Court finds that such an interpretation would make Article 5(2) to (4) of the regulation redundant In fact where a document is issued in accordance with Article 5(1) of Regulation No 9872009 the procedure laid down in Article 5(2) to (4) thereof must be followed where the competent authorities of different Member States disagree about that document Article 6 of Regulation No 9872009 being precluded from applying in that situation

109 In those circumstances the Commissionrsquos complaints that the Kingdom of Belgium has failed to fulfil its obligations under Article 11(1) Article 12(1) and Article 76(6) of Regulation No 8832004 and Article 5 of Regulation No 9872009 must be upheld

113 In the light of the foregoing considerations the Court finds that by adopting Articles 23 and 24 of the Programme Law the Kingdom of Belgium has failed to fulfil its obligations under Article 11(1) Article 12(1) and Article 76(6) of Regulation No 8832004 and under Article 5 of Regulation No 9872009


5 Judgment of septembre 2018 C 52716 Alpenrind

The questions

2 The request has been made in proceedings between Salzburger Gebietskrankenkasse (Salzburg Regional Health Insurance Fund) (lsquothe Health Insurance Fundrsquo) and the Bundesminister fuumlr Arbeit Soziales und Konsumentenschutz (Federal Minister of Labour Social Affairs and Consumer Protection) (lsquothe Ministerrsquo) and Alpenrind GmbH Martin-Meat Szolgaacuteltatoacute es Kereskedelmi Kft (lsquoMartin-Meatrsquo) Martimpex-Meat Kft (lsquoMartimpexrsquo) the Pensionsversicherungsanstalt (Pension Insurance Authority) and the Allgemeine Unfallversicherungsanstalt (General Accident Insurance Authority) concerning the social security legislation applicable to persons posted to work in Austria under an agreement between Alpenrind established in Austria and Martimpex established in Hungary

34 In those circumstances the Verwaltungsgerichtshof (Upper Administrative Court Austria) decided to stay proceedings and to refer to the Court the following questions for a preliminary ruling

lsquo(1) Does Article 5 of Regulation No 9872009 which establishes the procedure for implementing Article 19(2) of [that regulation] also apply in proceedings before a court or tribunal within the meaning of Article 267 TFEU

(2) If the first question is answered in the affirmative

(a) does the aforementioned binding effect also apply where proceedings had previously taken place before the [Administrative Commission] and such proceedings did not result either in agreement or in a withdrawal of the contested documents

14

(b) does the aforementioned binding effect also apply where an A1 certificate is not issued until after the host Member State has formally determined that insurance is compulsory under its legislation Does the binding effect also apply retroactively in such cases

(3) In the event that under certain conditions the binding effect of documents within the meaning of Article 19(2) of Regulation No 9872009 is limited

Does it contravene the prohibition on replacement set forth in Article 12(1) of Regulation No 8832004 if the replacement occurs not in the form of a posting by the same employer but instead by another employer Does it matter whether

(a) the second employer has its registered office in the same Member State as the first employer and

(b) the first and the second posting employers share staffing andor organisational resourcesrsquo

Consideration

41 In particular as regards the E 101 certificate which preceded the A1 certificate the Court has already held that the binding nature of the first certificate issued by the competent institution of a Member State in accordance with Article 12a(1a) of Council Regulation (EEC) No 57472 of 21 March 1972 laying down the procedure for implementing Regulation No 140871 (OJ English Special Edition 1972(I) p 160) binds both the institutions and the courts of the Member State in which the activity is carried out (see to that effect judgments of 26 January 2006 Herbosch Kiere C-205 EUC200669 paragraphs 30 to 32 and of 27 April 2017 A-Rosa Flussschiff C-62015 EUC2017309 paragraph 51)

42 Recital 12 of Regulation No 9872009 provides in particular that the measures and procedures laid down by that regulation lsquoare the result of the case-law of the [Court] the decisions of the Administrative Commission and the experience of more than 30 years of application of the coordination of social security systems in the context of the fundamental freedoms enshrined in the Treatyrsquo

46 If it were to be accepted that apart from cases of fraud or abuse of rights the competent national institution could by bringing proceedings before a court of the host Member State of the worker concerned to which that institution belongs have an A1 certificate declared invalid there would be a risk that the system based on sincere cooperation between the competent institutions of the Member States would be undermined (see to that effect as regards E 101 certificates judgments of 26 January 2006 Herbosch Kiere C-205 EUC200669 paragraph 30 of 27 April 2017 A-Rosa Flusschiff C-62015 EUC2017309 paragraph 47 and of 6 February 2018 Altun and Others C-35916 EUC201863 paragraphs 54 55 60 and 61)

47 Having regard to the foregoing the answer to the first question is that Article 5(1) of Regulation No 9872009 read together with Article 19(2) thereof must be interpreted as meaning that an A1 certificate issued by the competent institution of a Member State under Article 12(1) of Regulation No 8832004 binds not only the institutions of the Member State in which the activity is carried out but also the courts of that Member State

15

62 Therefore it must be held that the Administrative Commissionrsquos role in the procedure laid down in Article 5(2) to (4) of Regulation No 9872009 is merely to reconcile the points of view of the competent authorities of the Member State which brought the matter before it

64 Accordingly the answer to the first part of the second question is that Article 5(1) of Regulation No 9872009 read together with Article 19(2) thereof must be interpreted as meaning that an A1 certificate issued by the competent institution of a Member State under Article 12(1) of Regulation No 8832004 is binding both the social security institutions of the Member State in which the activity is carried out and the courts of that Member State so long as the certificate has not been withdrawn or declared invalid by the Member State in which was issued even though the competent authorities of the latter Member State and the Member State in which the activity is carried out have brought the matter before the Administrative Commission which held that that certificate was incorrectly issued and should be withdraw

77 Having regard to the foregoing considerations the answer to the second part of the second question is that Article 5(1) of Regulation No 9872009 read together with Article 19(2) thereof must be interpreted as meaning that an A1 certificate issued by the competent institution of a Member State under Article 12(1) of Regulation No 8832004 is binding on both the social security institutions of the Member State in which the activity is carried out and the courts of that Member State if appropriate with retroactive effect even though that certificate was issued only after that Member State determined that the worker concerned was subject to compulsory insurance under its legislation

90 Therefore it follows from the wording of Article 12(1) of Regulation No 8832004 and in particular the expression lsquoprovided thatrsquo that the fact that a posted worker replaces another person prevents that replacement worker from remaining subject to the legislation of the Member State in which his employer usually carries out its activities and that the non-replacement condition applies to it in a cumulative manner also laid down in that provision relating to the maximum period of the employment concerned

94 Likewise it follows from recitals 17 and 18 of Regulation No 8832004 that lsquoas a general rulersquo the legislation applicable to persons pursuing an activity as an employed or self-employed person on the territory of a Member State is that of the latter and that it is necessary to lsquoderogate from the general rulersquo in specific situations which justify other criteria of applicability

95 It follows that in so far as Article 12(1) of Regulation No 8832004 constitutes derogation from the general rule which applies in order to determine the legislation applicable to persons pursuing an activity as an employed or self-employed person in a Member State it must be strictly interpreted

96 Finally with regard to the objectives of Article 12(1) of Regulation No 8832004 and more generally the legal framework of which that provision is part it must be held that while Article 12(1) of Regulation No 8832004 establishes a specific rule for the determination of the legislation applicable in the case of posted workers that special situation which in principle justifies another criterion of applicability the fact remains that the EU also intended to prevent that special rule from benefiting workers posted successively who carry out the same work

97 Furthermore to interpret Article 12(1) of Regulation No 8832004 differently according to the location of the registered office of the employers concerned or the

16

existence of personal or organisational links between them could undermine the objective pursued by the EU legislature in principle to subject workers to the legislation of the Member State in which the person concerned pursues his activity

98 In particular as is clear from recital 17 of Regulation No 8832004 it is with a view to guaranteeing the equality of treatment of all persons occupied in the territory of a Member State as effectively as possible that it is considered appropriate to determine as the legislation applicable as a general rule that of the Member State in which the person concerned pursues his activity as an employed or self-employed person Furthermore it follows from recitals 5 and 8 of that regulation that it is necessary within the framework of the coordination of national social security systems to guarantee as effectively as possible equality of treatment for persons occupied in the territory of a Member State

99 It follows from the findings set out in paragraphs 89 to 98 of the present judgment that the recurrent use of posted workers to fill the same post even though the employers responsible for posting workers are different does not comply with the wording or the objectives of Article 12(1) of Regulation No 8832004 and is not consistent with the context of which that provision is part so that a person posted cannot benefit from the special rule laid down in that provision if he replaces another worker

100 Having regard to all of the foregoing considerations the answer to the third question is that Article 12(1) of Regulation No 8832004 must be interpreted as meaning that if a worker who is posted by his employer to carry out work in another Member State is replaced by another worker posted by another employer the latter employee must be regarded as being lsquosent to replace another personrsquo within the meaning of that provision so that he cannot benefit from the special rules laid down in that provision in order to remain subject to the legislation of the Member State in which his employer normally carries out its activities The fact that the employers of the two workers concerned have their registered offices in the same Member State or that they may have personal or organisational links is irrelevant in that respect


III Pensions


The questions

2 The request has been made in proceedings between Mrs Boguslawa Zaniewicz-Dybeck and the Pensionsmyndighete (Swedish Pensions Office) concerning the award of a guaranteed pension as provided for under the Swedish state retirement scheme

25 Mrs Zaniewicz-Dybeck a Polish national was born in 1940 and left Poland to settle in Sweden in 1980 After working in Poland for 19 years she lived in Sweden for 24 years and worked there for 23 years

26 In 2005 Mrs Zaniewicz-Dybeck applied for a guaranteed pension which was refused by the National Insurance Fund

17

27 By decision of 1 September 2008 the National Insurance Fund confirmed its decision rejecting Mrs Zaniewicz-Dybeckrsquos objection

28 As Mrs Zaniewicz-Dybeck had completed insurance periods in both Sweden and Poland the National Insurance Fund calculated her guaranteed pension under Regulation No 140871 on the one hand on the basis of national provision and on the other hand in accordance with the pro rata calculation principle set out in Article 46(2) of that regulation

29 In calculating Mrs Zaniewicz-Dybeckrsquos guaranteed pension in accordance with national provisions the National Insurance Fund determined the basis of calculation of that pension by carrying out a pro rata calculation in accordance with Paragraph 25 of Chapter 67 SFB and the instructions Moreover when calculating the basic amount for the purpose of Article 46(2)(a) of Regulation No 140871 it did not take account of the income-based retirement pension acquired by Mrs Zaniewicz-Dybeck in Poland but attributed to the income-based pension acquired by her in Sweden amounting to SEK 75 216 (approximately EUR 7 897) for 24 insurance years an annual value of SEK 3 134 (approximately EUR 329) that is SEK 75 216 divided by 24 then multiplied that amount by the maximum insurance period for the guaranteed pension namely 40 years She thus obtained a fictitious pension value of SEK 125 360 (approximately EUR 13 162)

30 In the light of the results obtained the National Insurance Fund took the view that the income-based retirement pensions mdash which in accordance with Paragraph 15 of Chapter 67 SFB constitute the basis on which the guaranteed pension is calculated mdash received by Mrs Zaniewicz-Dybeck were above the income ceiling for the award of a guaranteed pension

35 In view of the foregoing considerations the referring court considers that there is some uncertainty as to how the guaranteed pension is to be calculated In particular it is uncertain whether when calculating such a pension it is necessary to apply Article 46(2) and Article 47(1)(d) of Regulation No 140871 and if so whether under those provisions it is possible for the purpose of determining the basis of calculation of such a pension to attribute to insurance periods completed in a Member State other than the Kingdom of Sweden a fictitious pension value corresponding to the average value of the periods completed in Sweden If that is not the case the referring court asks whether it is necessary for the purpose of calculating the guaranteed pension to take account of retirement pensions received by the person concerned in other Member States

36 In those circumstances the Houmlgsta foumlrvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling

lsquo(1) Do the provisions in Article 47(1)(d) of Regulation No 140871 mean that in calculating the Swedish guaranteed pension insurance periods completed in another Member State can be given a pensionable value which corresponds to the average value of the periods completed in Sweden where the competent institution undertakes a pro rata calculation in accordance with Article 46(2) of that regulation

(2) If question 1 is answered in the negative may the competent institution in its calculation of the entitlement to a guaranteed pension take account of pension income which an insured person receives in another Member State without that running counter to the provisions of Regulation No 140871rsquo

18

Consideration

42 In such a case Article 46(2)(a) of Regulation No 140871 provides that the competent institution is to calculate the theoretical amount of the benefit to which the person concerned is entitled as if all the periods of work which that person completed in various Member States had been completed in the Member State of the competent institution The competent institution is then required pursuant to Article 46(2)(b) of the regulation to determine the actual amount of the benefit on the basis of the theoretical amount in accordance with the ratio of the duration of the periods of insurance andor residence completed in the Member State of the competent institution to the total duration of the periods of insurance andor residence completed in the various Member States mdash in other words the pro rata method of calculation

43 Article 47 of Regulation No 140871 lays down additional provisions for the calculation of the theoretical and pro rata amounts referred to in Article 46(2) of the regulation Thus Article 47(1)(d) of the regulation states in particular that where under the legislation of a Member State benefits are calculated on the basis of the amount of earnings contributions or increases the competent institution of the State is to determine the earnings contributions or increases to be taken into account in respect of the periods of insurance or residence completed under the legislation of other Member States on the basis of the average earnings contributions or increases recorded in respect of the periods of insurance completed under the legislation which it administers

44 In the present case it should be noted that at the hearing the Swedish Government itself recognised that the purpose of the guaranteed pension is to provide those in receipt of such a pension with a reasonable standard of living by guaranteeing them a minimum income in excess of the amount they would receive if they drew only an income-based retirement pension where that amount is too small or even nil The guaranteed pension therefore constitutes the basic form of cover under the Swedish state retirement pension system

45 In that regard the Court held in paragraph 15 of the judgment of 17 December 1981 Browning (2281 EUC1981316) that there is a lsquominimum benefitrsquo within the meaning of Article 50 of Regulation No 140871 where the legislation of the Member State of residence includes a specific guarantee the object of which is to ensure for recipients of social security benefits a minimum income which is in excess of the amount of benefit which they may claim solely on the basis of their periods of insurance and their contributions

46 It is therefore clear that in view of its purpose as described in paragraph 44 above the guaranteed pension at issue in the main proceedings constitutes a minimum benefit that falls within Article 50 of Regulation No 140871

47 As the Advocate General observed in point 47 of his Opinion since Regulation No 140871 does not require Member States to provide minimum benefits and not all national legislation therefore necessarily makes provision for that kind of benefit Article 46(2) of that regulation cannot impose specific detailed rules for the calculation of such a benefit

48 Consequently the right to a minimum benefit such as the guaranteed pension at issue in the main proceedings must be evaluated not on the basis of Article 46(2) or Article 47(1)(d) of Regulation No 140871 but by reference to the specific rules laid down in Article 50 of that regulation and the relevant national legislation

19

49 It is apparent from the summary of the facts of the main proceedings in paragraph 29 above that in order to calculate whether Mrs Zaniewicz-Dybeck was entitled to a guaranteed pension the competent institution first applied in accordance with Paragraph 25 of Chapter 67 SFB to the amount to which she was entitled by way of graduated pension and supplementary pension which form the basis of the calculation of the guaranteed pension a pro rata method of calculation which as observed by the Advocate General in essence in points 45 and 46 of his Opinion is similar to the method set out in Article 46(2)(a) and (b) of Regulation No 140871 Second when carrying out the pro rata calculation required under Article 46(2) of the regulation the competent institution following the instructions did not take account of the retirement pensions received by Mrs Zaniewicz-Dybeck in Poland but as provided for in Article 47(1)(d) of the regulation attributed an annual value to the income-based pension acquired by her in Sweden and then multiplied that amount by the maximum insurance period for the guaranteed pension namely 40 years It is clear from the order for reference that the result obtained by the calculation method described above was in excess of the income ceiling for the award of a guaranteed pension

50 As is apparent from paragraph 48 above such a method of calculation based on Article 46(2) and Article 47(1)(d) of Regulation No 140871 is not permissible for the purpose of calculating a minimum benefit such as the guaranteed pension at issue in the main proceedings

51 The competent institution is required to calculate the guaranteed pension in accordance with Article 50 of Regulation No 140871 in conjunction with the provisions of national legislation with the exception of Paragraph 25 of Chapter 67 SFB and the instructions

52 The answer to the first question is therefore that Regulation No 140871 is to be interpreted as meaning that when the competent institution of a Member State calculates a minimum benefit such as the guaranteed pension at issue in the main proceedings it is inappropriate to apply Article 46(2) or Article 47(1)(d) of the regulation Such a benefit must be calculated in accordance with Article 50 of the regulation in conjunction with the provisions of national law without however applying national provisions such as those in the main proceedings providing for a pro rata calculation

53 By its second question the referring court seeks to ascertain in essence whether Regulation No 140871 is to be interpreted as precluding the legislation of a Member State under which when calculating a benefit such as the guaranteed pension at issue in the main proceedings the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States

56 Accordingly it is necessary to determine whether Regulation No 140871 in particular Article 50 thereof precludes the legislation of a Member State under which when calculating whether a person is entitled to a minimum benefit such as the guaranteed pension at issue in the main proceedings the competent institution must take account of retirement pensions which the person concerned receives from another Member State

57 It should be noted in that regard that it is established case-law that Article 50 of Regulation No 140871 covers cases where the periods of employment of the worker under the legislation of the States to which he was subject were relatively short with the result that the total amount of benefits payable by those States does not provide a reasonable

20

standard of living (judgments of 30 November 1977 Torri 6477 EUC1977197 paragraph 5 and of 17 December 1981 Browning 2281 EUC1981316 paragraph 12)

58 In order to remedy that situation Article 50 of Regulation No 140871 provides that where the legislation of the State of residence makes provision for a minimum benefit the benefit payable by that State will be increased by a supplement equal to the difference between the total benefits payable by the various Member States to whose legislation the worker was subject and that minimum benefit (judgment of 30 November 1977 Torri 6477 EUC1977197 paragraph 6)

59 It follows as the Advocate General observed in point 59 of his Opinion that for the purpose of calculating whether a person is entitled to a minimum benefit such as the guaranteed pension at issue in the main proceedings Article 50 of Regulation No 140871 specifically provides that the actual amount of retirement pensions received by the person concerned from another Member State is to be taken into account

60 Accordingly the answer to the second question is that Regulation No 140871 in particular Article 50 thereof is to be interpreted as not precluding the legislation of a Member State under which when calculating a minimum benefit such as the guaranteed pension at issue in the main proceedings the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States



The questions

2 The request has been made in proceedings between on the one hand the Instituto Nacional de la Seguridad Social (INSS) (National Institute for Social Security Spain lsquothe INSSrsquo) and the Tesoreriacutea General de la Seguridad Social (TGSS) (Social Security General Fund Spain lsquothe TGSSrsquo) and on the other hand Joseacute Blanco Marqueacutes concerning the decision of the INSS to suspend the payment of the supplement to his total permanent incapacity pension because he is in receipt of a Swiss retirement pension

23 Mr Blanco Marqueacutes born on 3 February 1943 is the beneficiary of a Spanish pension for total permanent incapacity to perform the occupation of qualified mine electrician due to a non-occupational disease this status having been recognised by court order of 3 June 1998 with effect from 13 January 1998 In order to establish entitlement to that pension and to determine its amount only contributions made to the Spain social security scheme were taken into account As the person concerned was at the date on which that court order took effect over 55 years of age he was granted the 20 supplement in accordance with Article 6(1) to (3) of Decree 16461972

24 When he reached the age of 65 Mr Blanco Marqueacutes obtained a retirement pension from the Swiss social security scheme with effect from 1 March 2008 That retirement pension was granted to him taking exclusively into account the contributions which he had made to the Swiss compulsory pension scheme

21

25 By decision of 24 February 2015 the INSS withdrew with effect from 1 February 2015 the 20 supplement that Mr Blanco Marqueacutes had been receiving on the ground that that supplement was incompatible with the receipt of a retirement pension and requested him to reimburse the amount of EUR 17 34095 corresponding to the amounts paid in respect of that supplement between 1 February 2011 and 31 January 2015 the recovery of which was not time-barred

28 In those circumstances the Tribunal Superior de Justicia de Castilla y Leoacuten (High Court of Justice of Castilla y Leoacuten) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling

lsquo(1) Is a rule of national law such that contained in Article 6(4) of [Decree 16461972] which establishes that the 20 supplement to the regulatory base for pensioners who have a total permanent incapacity to perform their normal occupation and who are over 55 years old ldquoshall be suspended during the period in which the worker obtains employmentrdquo to be regarded as a rule to prevent overlapping within the meaning of Article 12 [and] Article 46a [to] 46c of Regulation [No 140871] and Articles 5 [and] 53 [to] 55 of Regulation [No 8832004] in view of the fact that the [Tribunal Supremo (Supreme Court)] has held that the incompatibility established in that rule of national law applies not only to employment but also to receipt of a retirement pension

(2) If the answer to the previous question is in the affirmative are Article 46a(3)(a) of Regulation [No 140871] and Article 53(3)(a) of Regulation [No 8832004] to be interpreted as meaning that a rule to prevent the overlapping of the benefit at issue and a pension from another European Union State or Switzerland may be applied only if there is a rule of national law of the rank of statute that expressly provides that social security old-age invalidity or survivorsrsquo benefits such as that at issue here are incompatible with benefits or income acquired abroad by the beneficiary Or may the rule to prevent overlapping be applied to pensions from another European Union State or Switzerland in accordance with Article 12 of Regulation [No 140871] and Article 5 of Regulation [No 8832004] even when there is no express legal provision but when the national case-law has adopted an interpretation which supposes that the benefit at issue is incompatible with a retirement pension under Spanish law

(3) If the answer to the previous question supports application of the Spanish rule preventing overlapping (as given a broad interpretation by case-law) to the case at issue even failing any express law concerning benefits or income acquired abroad is the 20 supplement which under Spanish Social Security legislation is received by workers who are recognised as having total permanent incapacity to perform their normal occupation and are over 55 years old as has been described to be considered the same as or different from a retirement pension under the Swiss social security system Does the definition of the various branches of social security in Article 4(1) of Regulation [No 140871] and Article 3(1) of Regulation [No 8832004] have Community scope or must the definition given by the national legislation be followed for every specific benefit If the definition has Community scope is the 20 supplement to the regulatory base of the total permanent incapacity benefit which is the subject matter of these proceedings to be regarded as an invalidity benefit or an unemployment benefit in light of the fact that it supplements the pension for total permanent incapacity to perform the normal occupation owing to the difficulty people more than 55 years old have in finding other employment so that payment of that supplement is suspended if the beneficiary does work

22

(4) If the two benefits are considered to be of the same kind and considering that contribution periods in another State have not been taken into account for the determining of either the amount of the Spanish incapacity pension or its supplement is the 20 supplement to the regulatory base of the Spanish total permanent incapacity pension to be regarded as a benefit to which the rules to prevent overlapping are applicable inasmuch as its amount does not depend on the length of periods of insurance or residence within the meaning of Article 46b[(2)(a)] of Regulation [No 140871] and Article 54(2)(a) of Regulation [No 8832004] May the rule to prevent overlapping be applied even though that benefit is not listed in Part D of Annex IV to Regulation [No 140871] or in Annex IX to Regulation [No 8832004]

(5) If the answer to the previous question is in the affirmative is the rule in Article 46a(3)(d) of Regulation [No 140871] and Article 53(3)(d) of Regulation [No 8832004] according to which the Spanish social security benefit could be reduced only ldquowithin the limit of the amount of the benefits payable under the legislationrdquo of another State in this case Switzerland

Consideration

36 In the present case it is apparent from the order for reference that under Article 6(4) of Decree 16461972 as interpreted by the case-law of the Tribunal Supremo (Supreme Court) the 20 supplement is suspended not only when the beneficiary receives an employment income but also when he receives a retirement pension as that pension is regarded as a substitute income for employment income In addition according to that same case-law there is no need to distinguish between national retirement pensions and pensions received in another Member State or in Switzerland with the result that both kinds of pensions must be taken into account in the same way for the purpose of the application of that provision

37 It follows that the national rule at issue in the main proceedings must be regarded as covering the benefits received by the beneficiary in another Member State or in Switzerland given that the Swiss Confederation for the purposes of the application of Regulation No 140871 is to be equated with a Member State of the European Union (judgment of 18 November 2010 Xhymshiti C-24709 EUC2010698 paragraph 31)

38 In addition it is not disputed that the effect of the application of that national rule is to reduce the total amount of the benefits that the person concerned may claim

39 The Court has already ruled that a national rule which provides that the supplement to a workerrsquos retirement pension is to be reduced by the amount of a retirement pension which the person concerned may claim under the scheme of another Member State constitutes a provision for reduction of benefit for the purposes of Article 12(2) of Regulation No 140871 (judgment of 22 October 1998 Conti C-14397 EUC1998501 paragraph 30)

40 In that regard so far as concerns the argument of the INSS and the TGSS that the national rule at issue in the main proceedings falls outside the scope of Regulation No 140871 on account of the fact that it merely sets out a simple incompatibility rule the Court has explained that national provisions for reduction of benefits cannot be rendered exempt from the conditions and limits of application laid down in Regulation No 140871 by categorising them as rules for calculating the amount payable or rules of evidence (see to that effect judgments of 22 October 1998 Conti C-14397 EUC1998501

23

paragraph 24 and of 18 November 1999 Van Coile C-44297 EUC1999560 paragraph 27)

41 In the light of the foregoing the answer to the first question is that a national rule such as that at issue in the main proceedings pursuant to which the 20 supplement to a total permanent incapacity pension is suspended during the period in which the beneficiary of that pension receives a retirement pension in another Member State or in Switzerland constitutes a provision on reduction of benefit for the purposes of Article 12(2) of Regulation No 140871

42 By its second question the referring court asks in essence whether Article 46a(3)(a) of Regulation No 140871 must be interpreted as meaning that the concept of lsquolegislation of the first Member Statersquo in that article is to be interpreted strictly or whether it also includes the interpretation of that concept by a higher national court

48 In those circumstances the answer to the second question is that Article 46a(3)(a) of Regulation No 140871 must be interpreted as meaning that the concept of lsquolegislation of the first Member Statersquo in that article is to be interpreted as including the interpretation of a provision of national law made by a supreme national court

49 By its third question the referring court asks in essence whether the 20 supplement granted to a worker drawing a total permanent incapacity pension under Spanish law and the retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind or of a different kind within the meaning of Regulation No 140871

53 It follows from the foregoing that the 20 supplement and the total permanent incapacity pension to which it is automatically ancillary are comparable to old-age benefits inasmuch as they are intended to guarantee a means of subsistence to workers declared as having total permanent incapacity to carry out their normal occupation and who having reached a certain age would in addition find it difficult to find employment in an activity other than their normal occupation

54 It is moreover to that effect that the total permanent incapacity pension and the 20 supplement are different from an unemployment benefit which is intended to cover the risk associated with the loss of revenue suffered by a worker following the loss of his employment although he is still able to work (see to that effect judgment of 18 July 2006 De Cuyper C-40604 EUC2006491 paragraph 27)

59 In that regard it should be pointed out that the Court has already ruled that in the case where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and invalidity benefits not yet converted into an old-age pension under the legislation of another Member State the old-age pension and the invalidity benefits are to be regarded as being of the same kind (judgments of 2 July 1981 Celestre and Others 11680 11780 and 11980 to 12180 EUC1981159 paragraph 11 and the case-law cited and of 18 April 1989 Di Felice 12888 EUC1989153 paragraph 13)

61 The answer to the third question is therefore that a supplement to a total permanent incapacity pension granted to a worker under the law of a Member State such as that at issue in the main proceedings and a retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind within the meaning of Regulation No 140871

24

62 By its fourth and fifth questions the referring court asks in essence in the event that the two benefits in question must be regarded as being of the same kind which specific provisions of Regulation No 140871 as regards overlapping of benefits of the same kind are to be applied

64 As regards the specific provisions applicable to invalidity old-age or survivorsrsquo benefits Article 46b(2)(a) of Regulation No 140871 provides that the provisions to prevent overlapping set out in national legislation are applicable to a benefit calculated in accordance with Article 46(1)(a)(i) of that regulation only when two cumulative conditions are met that is to say when first the amount of the benefit does not depend on the length of the periods of insurance or of residence completed and secondly the benefit is referred to in Annex IV part D to that regulation

65 In the present case it is apparent from the case-file made available to the Court that the benefits at issue in the main proceedings meet the requirement in Article 46(1)(a)(i) of Regulation No 140871 as the two pensions have been calculated by the respective national institutions on the basis solely of the provisions of the legislation that they administer without there having been any need to apply an aggregation or pro rata calculation

66 As for the two cumulative conditions although the parties that submitted observations disagree on whether the amount of the 20 supplement depends on the period of insurance covered with the result that it is for the referring court to determine that matter it is nonetheless common ground that a benefit of that kind is not expressly referred to in Annex IV part D to Regulation No 140871

67 In the light of the foregoing the answer to the fourth and fifth questions is that Article 46b(2)(a) of Regulation No 140871 must be interpreted as meaning that a national rule to prevent overlapping such as that in Article 6 of Decree 16461972 is not applicable to a benefit calculated in accordance with Article 46(1)(a)(i) of that regulation when that benefit is not referred to in Annex IV part D to that regulation



The questions

2 The request has been made in proceedings between on the one hand the Instituto Nacional de la Seguridad Social (INSS) (National Institute for Social Security (INSS) Spain) and on the other hand the Tesoreriacutea General de la Seguridad Social (Social Security General Fund Spain) and Mr Jesuacutes Crespo Rey concerning the calculation of the latterrsquos retirement pension

22 Mr Crespo Rey is a Spanish national After paying social security contributions in Spain during several periods between August 1965 and June 1980 in accordance with contribution bases higher than the minimum set by the Spanish general social security scheme he moved to Switzerland The referring court states that during the period from 1 May 1984 to 30 November 2007 he paid contributions to the social security system of that State

25

23 On 1 December 2007 Mr Crespo Rey signed a special agreement with the Spanish social security (lsquothe special agreement of 1 December 2007rsquo) so that from that date until 1 January 2014 he paid contributions calculated on the minimum contribution basis set by the Spanish general social security scheme

24 By decision of the INSS of 26 September 2014 Mr Crespo Rey was granted a retirement pension in Spain

25 When calculating that pension the INSS in accordance with the Fifth Transitional Provision of the General Law on Social Security took into account the amount of contributions paid by Mr Crespo Rey during the 192 months preceding his retirement namely the period from 1 January 1998 to 31 December 2013

26 The INSS treated the period from 1 December 2007 to 31 December 2013 during which the special agreement of 1 December 2007 applied as a period completed in Spain Accordingly it applied the terms provided for in paragraph 2 of the section lsquoSpainrsquo in Annex XI to Regulation No 8832004 and took as the basis for the calculation for that period the contributions paid by Mr Crespo Rey under that agreement

27 As for the period between 1 January 1998 and 30 November 2007 during which Mr Crespo Rey worked in Switzerland before concluding the special agreement the INSS took into consideration in accordance with paragraph 2 of the section lsquoSpainrsquo in Annex XI to Regulation No 8832004 the contribution basis in Spain closest in time to the reference periods The INSS considered that to be the contribution basis of December 2007 on the basis of which it calculated the first minimum contribution paid by Mr Crespo Rey under that agreement

32 In those circumstances the Tribunal Superior de Justicia de Galicia (High Court of Justice Galicia) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling

lsquo(1) Must the expression ldquothe contribution basis in Spain which is closest in time to the reference periodsrdquo referred to in [paragraph 2 of the section lsquoSpainrsquo in Annex XI] of Regulation No 8832004 be interpreted as excluding those contribution bases arising from the application of Spanish domestic legislation under which a migrant worker who has returned to Spain and whose actual final Spanish contributions are higher than the minimum bases may conclude an agreement maintaining the contributions in accordance only with the minimum bases whereas if he were a non-migrant worker he could have concluded such an agreement on higher bases

(2) In the event of an affirmative answer to the [previous question] and in accordance with [paragraph 2 of the section lsquoSpainrsquo in Annex XI] of Regulation No 8832004 do taking into account the last actual contributions made in Spain duly updated and considering the contribution period under the agreement maintaining contributions as a neutral period or interval constitute remedies appropriate for indemnifying the damage done to that workerrsquo

Consideration

44 In the light of those considerations it must be understood that by its questions which it is appropriate to consider together the referring court is asking is essence

26

whether the Agreement on the free movement of persons must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings which obligates a migrant worker who concludes a special agreement with the social security system of that Member State to make contributions in accordance with the minimum contribution basis with the result that when the theoretical amount of that workerrsquos retirement pension is calculated the competent body of that Member State treats the period covered by that agreement as a period completed in that Member State and will take into consideration for the purposes of that calculation only the contributions paid by the worker under that agreement even though before exercising his right to free movement the latter made contributions in that Member State in accordance with contribution bases higher than the minimum and a non-migrant worker who did not exercise his right to free movement and who concludes such an agreement has the possibility of making contributions in accordance with contribution bases higher than the minimum

48 As is apparent from the preamble to and Articles 1 and 16(2) of the Agreement on the free movement of persons the objective of the Agreement is to bring about for the benefit of nationals of the European Union and of the Swiss Confederation the free movement of persons in the territory of the contracting parties to that agreement based on the rules applying in the European Union the terms of which must be interpreted in accordance with the case-law of the Court of Justice (judgments of 19 November 2015 Bukovansky C-24114 EUC2015766 paragraph 40 and of 21 September 2016 Radgen C-47815 EUC2016705 paragraph 36)

49 In that context it should be noted that that objective includes pursuant to Article 1(a) and (d) of the Agreement the objective of granting to those nationals inter alia a right of entry residence access to work as employed persons and the same living employment and working conditions as those accorded to nationals of the individual States in question (judgment of 21 September 2016 Radgen C-47815 EUC2016705 paragraph 37)

50 Accordingly Article 8(a) of the Agreement on the free movement of persons states that the contracting parties are to make provision in accordance with Annex II to that Agreement for the coordination of social security systems with the aim of ensuring equal treatment

61 As a consequence when as in the case in the main proceedings a migrant worker before exercising his right to free movement and concluding a special agreement has made contributions to the social security scheme of the Member State in question in accordance with contribution bases higher than the minimum the contributions paid by that worker under the agreement he concluded do not correspond to those that he would have paid if he had continued to work under the same conditions in that Member State

62 Moreover it must be noted that the INSS and the Spanish Government acknowledged in their written observations and at the hearing before the Court that the national legislation at issue in the main proceedings does not impose such an obligation on non-migrant workers who did not exercise their right to free movement and therefore spent their entire working lives in Spain The latter have the right to make contributions in accordance with contribution bases higher than the minimum

63 It follows that by requiring migrant workers who conclude a special agreement to pay contributions calculated in accordance with the minimum contribution basis the national legislation at issue in the main proceedings establishes a difference of treatment

27

which places migrant workers at a disadvantage compared to non-migrant workers who spent their entire working life in the Member State in question

64 The INSS and the Spanish Government submit in that regard that the purpose of concluding a special agreement is to prevent the migrant worker suffering a reduction in the amount of his retirement pension because he exercised his right to free movement

65 It must be stated however that in a situation such as that at issue in the main proceedings a migrant worker who concludes a special agreement is in reality likely to see a non-negligible decrease in the amount of his retirement pension since as has already been noted in paragraph 59 of this judgment when the theoretical amount of that pension is calculated only the contributions paid by the worker under that agreement namely contributions calculated in accordance with the minimum contribution basis are taken into account

68 Accordingly in a situation such as that in the main proceedings where the worker concerned before exercising his right to free movement made contributions to the social security scheme of the Member State in question in accordance with contribution bases higher than the minimum the relevant contribution basis for the purposes of the calculation of his retirement pension would be the last contribution paid by that worker in that Member State namely a contribution basis that is higher than the minimum provided for by the special agreement

69 It follows that national legislation such as that at issue in the main proceedings which obligates a migrant worker who concludes a special agreement with the social security scheme of the Member State in question to make contributions in accordance with the minimum contribution basis even if that worker before exercising his right to free movement made contributions in that State in accordance with contribution bases higher than the minimum with the result that when the theoretical amount of that workerrsquos retirement pension is calculated the competent body of the Member State in question treats the period covered by that agreement as a period completed on its territory and takes into account for the purposes of that calculation only the minimum contributions paid by that worker under that agreement places such a worker at a disadvantage compared with those who completed their entire working life in the Member State concerned

70 To the extent that the referring court is uncertain as to what consequences it must draw from a possible incompatibility of national legislation with EU law it must be borne in mind that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 13 July 2016 Poumlpperl C-18715 EUC2016550 paragraph 43 and the case-law cited)

72 If an interpretation of national law in conformity with EU law is not possible the national court must fully apply EU law and protect rights which the latter confers on individuals disapplying if necessary any provision in so far as its application would in the circumstances of the case lead to a result contrary to EU law (judgment of 13 July 2016 Poumlpperl C-18715 EUC2016550 paragraph 45 and the case-law cited)

73 Where national law in breach of EU law provides for different treatment between a number of groups of persons the members of the group placed at a disadvantage must be treated in the same way and made subject to the same arrangements as the other persons

28

concerned The arrangements applicable to members of the group placed at an advantage remain for want of the correct application of EU law the only valid point of reference (judgment of 13 July 2016 Poumlpperl C-18715 EUC2016550 paragraph 46 and the case-law cited)

74 As is clear from the order for reference and has already been noted in paragraph 63 of the present judgment non-migrant workers who conclude a special agreement are entitled to make contributions in accordance with contribution bases higher than the minimum It is therefore this legal framework which constitutes a valid point of reference of that kind

76 Having regard to all the foregoing considerations the answer to the questions asked is that the Agreement on the free movement of persons must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings which obligates a migrant worker who concludes a special agreement with the social security system of that Member State to make contributions in accordance with the minimum contribution basis with the result that when the theoretical amount of that workerrsquos retirement pension is calculated the competent body of that Member State treats the period covered by that agreement as a period completed in that Member State and will take into consideration for the purposes of that calculation only the contributions paid under that agreement even though before exercising his right to free movement that worker made contributions in the Member State in question in accordance with contribution bases higher than the minimum and a non-migrant worker who did not exercise his right to free movement and who concludes such an agreement has the option of making contributions in accordance with contribution bases higher than the minimum



The questions

2 The request has been made in proceedings between Mr Stefan Czerwiński and Zakład Ubezpieczeń Społecznych Oddział w Gdańsku (social security institution Gdańsk Poland) (lsquoZUSrsquo) concerning the latterrsquos refusal to take into account for the purpose of granting a bridging pension periods of contribution relating to activities carried out by the person concerned in other Member States of the European Union or the European Economic Area (EEA)

17 Mr Czerwiński born on 1 January 1951 accumulated 23 years and 6 months of contribution and non-contribution periods in Poland

18 In addition in the years 2005 to 2011 he worked as a second engineer on a boat in Germany and as a chief engineer on a boat in Norway During those periods of work he paid contributions to the social security institutions of Germany and Norway respectively

19 On 12 June 2013 Mr Czerwiński lodged an application for a bridging pension with the ZUS

29

20 By decision of 31 July 2013 the ZUS rejected that application on the ground that Mr Czerwiński had not demonstrated as of 1 January 2009 15 years of work of a particular nature or performed under particular conditions within the meaning of Article 3(1) and (3) of the Law on bridging pensions nor a 25-year contribution and non-contribution period required by the same law

21 Mr Czerwiński appealed against that decision

22 By judgment of 28 January 2015 the Sąd Okręgowy w Gdańsku VII Wydział Pracy i Ubezpieczeń Społecznych (Regional Court of Gdańsk Labour and Social Insurance Division VII Poland) dismissed that appeal According to that court Mr Czerwiński could prove 15 years of work performed under particular conditions as required by the law but he was not able to prove 25 years of contributions since periods of contribution for work undertaken abroad could not be taken into account in that regard

23 The Sąd Apelacyjny w Gdańsku III Wydział Pracy i Ubezpieczeń Społecznych (Court of Appeal of Gdańsk Labour and Social Insurance Division III Poland) which is seised of the appeal brought by Mr Czerwiński against that judgment has doubts as to the classification of the bridging pension

24 Although the declaration made by the Polish authorities in accordance with Article 9 of Regulation No 8832004 states that bridging pensions fall within the category of pre-retirement benefits the referring court wonders whether those pensions should not be considered as old-age benefits It considers in that context that it is necessary to determine whether the classification of a benefit under one of the branches of social security listed in Article 3 of Regulation No 8832004 made by the competent national authority in the declaration to be made by the Member State concerned under Article 9 of that regulation is definitive or whether it is capable of assessment by the national courts

25 The referring court notes that if the bridging pension was classified as an old-age benefit the rule on aggregation of the periods laid down in Article 6 of Regulation No 8832004 would be applicable

26 On the other hand if the bridging pension falls within the category of pre-retirement benefits the question arises as to whether the exclusion of the rule on aggregation of periods as stems from Article 66 of Regulation No 8832004 is compatible with the objective of protection of social security cover flowing from Article 48(a) TFEU

27 In those circumstances the Sąd Apelacyjny w Gdańsku (Court of Appeal of Gdańsk) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling

lsquo(1) Can the classification made by a Member State in a declaration submitted pursuant to Article 9 of [Regulation No 8832004] of a particular benefit as concerning a specific branch of social security referred to in Article 3 of that regulation be subject to assessment by a national authority or court

(2) Does a bridging pension arising under the [Law on bridging pensions] constitute an old-age benefit within the meaning of Article 3(1)(d) of Regulation No 8832004

(3) Does the exclusion in relation to pre-retirement benefits of the rule on aggregation of periods of insurance (Article 66 and recital 33 of Regulation No 8832004) perform a protective function in the field of social security arising from Article 48(a) [TFEU]rsquo

30

Consideration

30 It follows from the principle of sincere cooperation laid down in Article 4(3) TEU that every Member State for the purposes of the declarations covered by Article 9(1) of Regulation No 8832004 must carry out a proper assessment of its own social security regimes and if necessary following that assessment declare them as falling within the scope of that regulation (see to that effect judgment of 3 March 2016 Commission v Malta C-1214 EUC2016135 paragraph 37 and the case-law cited)

31 Thus that declaration creates a presumption that the national laws in a declaration under Article 9 of Regulation No 8832004 fall within the scope of those regulations and bind in principle the other Member States (judgment of 3 March 2016 Commission v Malta C-1214 EUC2016135 paragraph 38)

32 Conversely the fact that a national law or rule has not been mentioned in a declaration under Article 9 of Regulation No 8832004 does not in itself prove that that law or rule does not fall within the scope of that regulation (see to that effect judgments of 11 July 1996 Otte C-2595 EUC1996295 paragraph 20 and the case-law cited and of 19 September 2013 HliddalandBornand C-21612 and C-21712 EUC2013568 paragraph 46)

33 The Court has repeatedly held that the distinction between the benefits which are excluded from the scope of Regulation No 8832004 and benefits which are covered essentially rests on the constituent elements of each benefit in particular its purpose and the conditions for its grant and not on whether the national law classifies it as a social security benefit or not (judgments of 27 March 1985 ScrivnerandCole 12284 EUC1985145 paragraph 18 of 11 July 1996 Otte C-2595 EUC1996295 paragraph 21 and of 5 March 1998 Molenaar C-16096 EUC199884 paragraph 19 and the case-law cited)

37 In that context the Court has held that a national court seised of a dispute relating to a national law can always be called upon to examine the classification of the benefit at issue in a case before it and if necessary to refer to the Court a question for a preliminary ruling on that issue for the purposes of determining whether that law falls within the material scope of Regulation No 8832004 (see to that effect judgment of 3 March 2016 Commission v Malta C-1214 EUC2016135 paragraph 43)

38 Since the classification of a social security benefit within the meaning of Regulation No 8832004 must be made by the national court concerned autonomously and on the basis of the elements that constitute the benefit in question and if necessary by referring a question for a preliminary ruling to the Court the classification of social security benefits given in the declaration made by the competent national authority under Article 9 of that regulation cannot be definitive

39 The principal objective of Regulation No 8832004 which is to ensure the coordination of national social security systems within the framework of free movement of persons while guaranteeing equality of treatment under the different national legislations would be seriously compromised if it were possible for every Member State by failing to include certain social benefits in the declaration or conversely by including them to determine freely the scope of that regulation

40 Therefore the answer to the first question is that the classification of a benefit under one of the branches of social security listed in Article 3 of Regulation No 8832004 made

31

by the competent national authority in the declaration to be made by the Member State under Article 9(1) of that regulation is not definitive The classification of a social security benefit may be made by the national court concerned autonomously and on the basis of the elements that constitute the social security benefit at issue and by referring if necessary a question for a preliminary ruling to the Court

41 By its second question the referring court asks whether such a benefit is to be regarded as an lsquoold-age benefitrsquo within the meaning of Article 3(1)(d) of Regulation No 8832004 or a lsquopre-retirement benefitrsquo within the meaning of Article 3(1)(i) of that regulation

42 It should be noted as a preliminary point that the answer to that question is decisive for the processing of the application for a bridging pension If that pension is to be regarded as an lsquoold-age benefitrsquo and in view of the fact that the grant of such a benefit is subject to attaining periods of insurance employment non-salaried work or residence the competent institution of a Member State must take into account pursuant to Article 6 of Regulation No 8832004 all periods completed under the legislation of any other Member State and even any Member State of the EEA as if those periods were completed in the Member State of that institution On the other hand if that pension is to be classified as a lsquopre-retirement benefitrsquo Article 66 of Regulation No 8832004 excludes the application of the rule on the aggregation of periods laid down in Article 6 of the regulation

45 Thus the essential characteristic of the old-age benefits referred to in Article 3(1)(d) of Regulation No 8832004 lies in the fact that they are intended to safeguard the means of subsistence of persons who when they reach a certain age leave their employment and are no longer required to hold themselves available for work at the employment office (judgment of 5 July 1983 Valentini 17182 EUC1983189 paragraph 14)

46 By contrast pre-retirement benefits even if they bear certain similarities to old-age benefits as regards their subject matter and purpose namely amongst other things to safeguard the means of subsistence of persons who have reached a certain age they differ from them notably in so far as they pursue an objective connected with employment policy inasmuch as they help to release posts held by workers who are near to the age of retirement for the benefit of younger unemployed persons an objective which became apparent in a context of economic crisis which affected Europe (see to that effect judgment of 5 July 1983 Valentini 17182 EUC1983189 paragraphs 16 and 17) Likewise in the case of the cessation of the economic activity of an undertaking the grant of such an allowance contributes to reducing the number of laid-off workers who are subject to the unemployment insurance scheme (see by analogy judgment of 11 July 1996 Otte C-2595 EUC1996295 paragraph 31)

47 It follows that pre-retirement benefits have a greater connection with the context of economic crisis restructuring redundancies and rationalisation

48 In addition it should be noted that while statutory pre-retirement schemes were not within the scope of the legislation applicable to social security schemes for migrant workers before the entry into force of Regulation No 8832004 the notion of lsquopre-retirement benefitrsquo is now defined in Article 1(x) of that regulation as meaning all cash benefits other than an unemployment benefit or an early old-age benefit provided from a specified age to workers who have reduced ceased or suspended their remunerative activities until the age at which they qualify for an old-age pension or an early retirement pension the receipt of which is not conditional upon the person concerned being available to the employment services of the competent State

32

49 Under that provision lsquopre-retirement benefitrsquo differs from lsquoearly old-age benefitrsquo in that the latter is provided before the person concerned has reached the normal pension entitlement age and either continues to be provided once that age is reached or is replaced by another old-age benefit

50 The question of whether a benefit such as that at issue in the main proceedings is to be regarded as an lsquoold-age benefitrsquo within the meaning of Article 3(1)(d) of Regulation No 8832004 or a lsquopre-retirement benefitrsquo within the meaning of Article 3(1)(i) of that regulation must be examined in the light of those considerations

51 As regards first the subject matter and the purpose of the benefit at issue in the main proceedings Article 3 of the Law on bridging pensions in particular paragraphs 1 and 3 thereof states that the bridging pension covers workers who performed work involving risk under particular conditions which could result in permanent damage to health or which require despite technological progress specific psychological or physical capacities that as the result of the ageing process are reduced or diminished before the age of retirement making it difficult for those workers to perform the work undertaken up until that point or even workers who can no longer guarantee performing work of a particular nature such as work involving particular responsibility and capacities and who as a result of psychological and physical decline due to advancing age can no longer carry out that work without placing the health and lives of others in danger

52 Even if a priori the beneficiary of a bridging pension in the same way as a worker receiving a pre-retirement benefit within the meaning of Article 1(x) of Regulation No 8832004 ceased or suspended their remunerative activities until the age at which they qualify for an old-age pension it remains the case that the bridging pension is connected neither with the situation on the employment market in a context of economic crisis nor with the economic capacity of an undertaking in the context of a restructuring but only with the nature of the work which is of a particular nature or is performed under particular conditions

53 Furthermore to the extent that the national legislation at issue refers expressly to the ageing process of workers and makes no reference to an objective of releasing employment positions for younger persons the benefit at issue in the main proceedings appears to have a greater connection with old-age benefits

55 Finally as regards the conditions for the grant of the benefit at issue in the main proceedings it is necessary to observe that Article 4 of the Law on bridging pensions defines the general conditions relating to age length of service and evidence of long periods of contribution and non-contribution which are as a rule requirements connected with the grant of old-age benefits unlike the conditions generally laid down for the grant of pre-retirement benefits

56 As regards more specifically the loss of the right to a bridging pension it must be noted that while it is clear from Article 16 of the Law on bridging pensions that the right to that benefit ends the day before the right to an old-age pension commences the case file submitted to the Court does not however contain any element that allows it to be excluded that it is an early old-age benefit within the meaning of Article 1(x) of Regulation No 8832004 in that the bridging pension continues to be provided once the normal age for old-age pension entitlement is reached or that the bridging pension is replaced by another old-age benefit

33

57 In those circumstances it must be held that it follows from both the subject matter and the purpose of the benefit at issue in the main proceedings as well as the basis of its calculation and the conditions for its grant that such a benefit is related to the risks of old age referred to in Article 3(1)(d) of Regulation No 8832004 and that therefore the rule on aggregation of periods applies to it

58 Consequently the answer to the second question must be that a benefit such as that at issue in the main proceedings must be regarded as an lsquoold-age benefitrsquo within the meaning of Article 3(1)(d) of Regulation No 8832004


IV Unemployment


The questions

2 The request was brought in proceedings between Mr J Klein Schiphorst and the Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Management Board of the Employee Insurance Schemes Implementing Body Netherlands) concerning the refusal of his request for an extension of the period of export of his unemployment benefits beyond three month

15 When he was living in the Netherlands and had been receiving since 2 May 2011 unemployment benefits under the WW Mr Klein Schiphorst a Dutch national informed the Management Board of the Employee Insurance Agency in the Netherlands (lsquothe Uwvrsquo) on 19 July 2012 that he intended to go to Switzerland in order to look for work there and asked for that purpose to retain his entitlement to unemployment benefits

16 By decision of 8 August 2012 the Uwv granted Mr Klein Schiphorstrsquos request for the period from 1 September 2012 to 30 November 2012

17 By email of 19 November 2012 Mr Klein Schiphorst asked the Uwv pursuant to Regulation No 8832004 for the period of export of his unemployment benefits to be extended beyond three months

18 By decisions of 21 November 2012 and of 16 January 2013 the Uwv refused that request and rejected the appeal against that refusal In the latter decision the Uwv explained that it did not make use of the power made available to the competent services or institutions under Article 64(1)(c) of Regulation No 8832004 to extend up to a maximum of six months the export period of unemployment benefits

23 Against this background the referring court has doubts as to the compatibility with EU law of the decision of the Uwv by which it refused to make use to the benefit of Mr Klein Schiphorst of the power conferred on the competent services and institutions by the second limb of Article 64(1)(c) of Regulation No 8832004 to extend the duration of export of unemployment benefits beyond three months

34

24 In particular the referring court is uncertain first whether the Member States are permitted not to make use of that power in any circumstances In the event of a negative answer the referring court considers that it would then be necessary to establish whether having regard to the objective and scope of Regulation No 8832004 to the prohibition of imposing a residence requirement or to the free movement of EU citizens and workers Member States may in principle refuse to exercise that power and confine themselves to actually making use of it only in particular circumstances Lastly in the case of another negative answer the referring court wonders how the Member States should make use of that power

25 In these circumstances the Centrale Raad van Beroep (Higher Social Security and Civil Service Court) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling

lsquo(1) May the power conferred by Article 64(1)(c) of Regulation No 8832004 having regard to Article 63 and Article 7 of [the same regulation] the objective and scope of [that r]egulation and the free movement of persons and workers be exercised by refusing as a matter of principle to grant any application unless in the view of the Uwv given the particular circumstances of the case for example where there is a concrete and demonstrable prospect of work it would be unreasonable to refuse the extension of the export

(2) If not how should Member States apply the power conferred by Article 64(1)(c) of Regulation No 8832004rsquo

Consideration

32 As is clear from Article 64(1) of Regulation No 8832004 a wholly unemployed person who satisfies the conditions of the legislation of the competent Member State for entitlement to benefits and who goes to another Member State in order to seek work there is to retain his entitlement to unemployment benefits in cash under the conditions and within the limits listed in that provision

33 In particular the first limb of Article 64(1)(c) of that regulation provides that entitlement to benefits lsquoshall bersquo retained for a period of three months from the date when the unemployed person ceased to be available to the employment services of the Member State which he left provided that the total duration for which the benefits are provided does not exceed the total duration of the period of his entitlement to benefits under the legislation of that Member State The second limb of Article 64(1)(c) of the same regulation states however that the competent services or institutions lsquomayrsquo extend the period of three months up to a maximum of six months

35 Regarding the wording of the first limb of Article 64(1)(c) of Regulation No 8832004 it is clear from that wording that the entitlement to unemployment benefits is guaranteed for a period of three months for a wholly unemployed person who goes to another Member State in order to seek work there In that regard the Court has previously ruled in relation to Article 69 of Regulation No 140871 the predecessor provision to Article 64 of Regulation No 8832004 that the first of those provisions enabled an unemployed worker to be exempt for a specific period for the purpose of seeking employment in another Member State from the obligation imposed by the various national laws to make himself available to the employment services of the competent State without thereby losing his entitlement to unemployment benefits as against that State (judgments of 19 June 1980 Testa and Others 4179 12179 and 79679 EUC1980163

35

paragraph 4 and of 21 February 2002 Rydergaringrd C-21500 EUC2002111 paragraph 17)

36 As for the second limb of Article 64(1)(c) of Regulation No 8832004 it states that the competent services or institutions lsquomayrsquo extend the period of three months up to a maximum of six months

37 In this respect as the Netherlands Danish Swedish and Norwegian Governments state in their written observations it is clear from the use of the word lsquomayrsquo that that provision does not require the competent institutions to extend up to a maximum of six months the period during which unemployment benefits received by a wholly unemployed person who goes to another Member State in order to seek work there are retained

38 In addition as all of the intervening parties stated during the hearing the travaux preacuteparatoires that led to the adoption of that provision highlight as the Advocate General noted in point 34 of his Opinion the fact that the Commissionrsquos initial proposal to make the six-month export period compulsory failed to win the endorsement of the Council of the European Union the Member States having subsequently eventually agreed on the form of words which makes up the second limb of Article 64(1)(c) of Regulation No 8832004

40 Second it follows from Article 64(2) of that regulation that if the person concerned does not return to the competent Member State on or before the expiry of the period during which he is entitled to benefits under Article 64(1)(c) of that regulation namely three months or where relevant if that period is extended by the competent institutions up to a maximum of six months he loses all entitlement to benefits under the legislation of the competent Member State although those institutions may in exceptional cases allow the person concerned to return at a later date without losing entitlement

41 As the Advocate General noted in point 55 of his Opinion that provision allows inter alia the competent institutions to extend in lsquoexceptional circumstancesrsquo the period of three months during which the person concerned is entitled to benefits in order to prevent the loss of all entitlements to benefits in the event of his late return following the expiry of that period from giving rise to disproportionate results Such a possibility confirms that the unemployment benefit export period may be limited to three months the competent institutions not being required by the second limb of Article 64(1)(c) to extend it up to a maximum of six months

42 That finding is corroborated by the fact that Regulation No 8832004 does not fix the conditions on which a wholly unemployed person who goes to another Member State in order to seek work there may benefit from an extension of that period beyond three months

45 Moreover it must be noted that under Regulation No 140871 the Court had already ruled that the right to retain unemployment benefits for a period of three months helps to ensure the free movement of workers (see to that effect judgment of 19 June 1980 Testa and Others 4179 12179 and 79679 EUC1980163 paragraph 14) Such a conclusion applies equally to Regulation No 8832004 since in addition to guaranteeing the export of unemployment benefits for a period of three months it also allows that period to be extended up to a maximum of six months

36

46 It follows that Article 64(1)(c) of Regulation No 8832004 guarantees export of unemployment benefits for three months only however it allows that period to be extended up to a maximum of six months under national law

47 Such an interpretation is not called into question by the principle of waiving of residence clauses as set out in Article 7 of Regulation No 8832004 to which the national court makes reference by the wording of its question

51 As regards the criteria on the basis of which the competent institution may extend the unemployment benefit export period up to a maximum of six months it must be noted that when as in the present case the Member State concerned has exercised the power provided for in the second limb of Article 64(1)(c) of Regulation No 8832004 it is for that Member State failing any criteria laid down in that regulation to adopt in accordance with EU law national measures regulating the competent institutionrsquos discretion in particular by specifying the conditions on which extension of the unemployment benefit export period beyond three months and up to a maximum of six months is or is not to be granted to an unemployed person who goes to another Member State in order to seek work there

52 In the present case it is clear from the documents submitted to the Court and from the clarifications provided by the Netherlands Government during the hearing that the Kingdom of the Netherlands initially declined to exercise the power offered by the second limb of Article 64(1)(c) of Regulation No 8832004 in accordance with a direction issued by the Minister for Social Affairs and Employment in January 2011 However subsequently after the Rechtbank Amsterdam (District Court of Amsterdam) by judgment of 2 October 2013 delivered in the main proceedings considered that reasons had to be given for refusal of a request to extend the export of unemployment benefits beyond three months the Uwv decided albeit without departing from the principle that a request of that nature is not to be granted that in the light of the particular circumstances of the case in particular the existence of a concrete and demonstrable prospect of employment the granting of such a request can be justified In particular as is clear from the information contained in the order for reference the Uwv considers that such circumstances are established when the person concerned is involved in a process likely to lead to actual employment and that requires his stay in the host Member State to be extended or when the person concerned has submitted a declaration of intent from an employer offering him a genuine prospect of employment in that Member State

53 In such circumstances as the Advocate General noted in point 78 of his Opinion a Member State remains within the limits permitted by EU law in adopting measures under which an extension of the unemployment benefit export period up to a maximum of six months may be granted only when certain conditions are satisfied

54 In the light of all the foregoing the answer to the first question is that Article 64(1)(c) of Regulation No 8832004 must be interpreted as not precluding a national measure such as that at issue in the main proceedings that requires the competent institution to refuse as a matter of principle any request to extend the unemployment benefit export period beyond three months provided the institution does not consider that refusing that request would lead to an unreasonable result


37



The questions

2 The request has been made in proceedings between (1) Mr Florea Gusa and (2) the Minister for Social Protection (Ireland) Ireland and the Attorney General concerning the refusal to provide Mr Gusa with a jobseekerrsquos allowance

16 Mr Gusa a Romanian national entered the territory of Ireland in October 2007 During the first year of his residence in that Member State he was supported by his adult children who also resided there From October 2008 until October 2012 he worked as a self-employed plasterer and on that basis paid his taxes in Ireland as well as pay related social insurance and other levies on his income

17 He ceased working in October 2012 claiming an absence of work caused by the economic downturn and registered as a jobseeker with the relevant Irish authorities He then had no more income as his children had left Ireland and were no longer supporting him financiall

18 In November 2012 he applied for a jobseekerrsquos allowance on the basis of the 2005 Act

19 The application was however refused by a decision of 22 November 2012 on the ground that Mr Gusa had not demonstrated that he still had a right to reside in Ireland at that date According to the decision on cessation of his self-employment as a plasterer Mr Gusa no longer satisfied the conditions for such entitlement laid down in Regulation 6(2) of the 2006 Regulations which transposes Article 7 of Directive 200438 into Irish law

25 In those circumstances the Court of Appeal (Ireland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling

lsquo1 Does an EU citizen who (i) is a national of another Member State (ii) has lawfully resided in and worked as a self-employed person in a host Member State for approximately four years (iii) has ceased his work or economic activity by reason of absence of work and (iv) has registered as a jobseeker with the relevant employment office retain the status of self-employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 200438 or otherwise

2 If not does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1)(b) or (c) of Directive 200438 or is he only protected from expulsion pursuant to Article 14(4)(b) of Directive 200438

3 If not in relation to such a person is a refusal of a jobseekerrsquos allowance (which is a non-contributory special benefit within the meaning of Article 70 of Regulation No 8832004) by reason of a failure to establish a right to reside in the host Member State compatible with EU law and in particular Article 4 of Regulation No 8832004rsquo

38

Consideration

26 By its first question the referring court asks in essence whether Article 7(3)(b) of Directive 200438 must be interpreted as meaning that a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years that national has ceased that activity because of an absence of work owing to reasons beyond his control and has registered as a jobseeker with the relevant employment office of the latter Member State

31 In particular contrary to the submissions of the respondents in the main proceedings and the United Kingdom Government the expression lsquoinvoluntary unemploymentrsquo may depending on the context in which it is used refer to a situation of inactivity due to the involuntary loss of employment following for example a dismissal as well as more broadly to a situation in which the occupational activity whether on an employed or self-employed basis has ceased due to an absence of work for reasons beyond the control of the person concerned such as an economic recession

40 First it is apparent from recitals 3 and 4 of Directive 200438 that with a view to strengthening the fundamental and individual right of all Union citizens to move and reside freely within the territory of the Member States and to facilitating the exercise of that right the aim of the directive is to remedy the sector-by-sector piecemeal approach which characterised the instruments of EU law which preceded that directive and which dealt separately in particular with workers and self-employed persons by providing a single legislative act codifying and revising those instruments (see to that effect judgment of 19 June 2014 Saint Prix C-50712 EUC20142007 paragraph 25)

41 To interpret Article 7(3)(b) of that directive as covering only persons who have worked as employed persons for more than one year and excluding those who have worked as self-employed persons for that period would run counter to that purpose

42 Second such an interpretation would introduce an unjustified difference in the treatment of those two categories of persons given the objective of that provision which is to safeguard by the retention of the status of worker the right of residence of persons who have ceased their occupational activity because of an absence of work due to circumstances beyond their control

43 Just as an employed worker may involuntarily lose his job following for example his dismissal a person who has been self-employed may find himself obliged to stop working That person might thus be in a vulnerable position comparable to that of an employed worker who has been dismissed In those circumstances there would be no justification for that person being ineligible for the same protection as regards retention of his right of residence as that afforded to a person who has ceased to be employed

44 Such a difference in treatment would be particularly unjustified in so far as it would lead to a person who has been self-employed for more than one year in the host Member State and who has contributed to that Member Statersquos social security and tax system by paying taxes rates and other charges on his income being treated in the same way as a first-time jobseeker in that Member State who has never carried on an economic activity in that State and has never contributed to that system

45 It follows from all of the foregoing that a person who has ceased to work in a self-employed capacity because of an absence of work owing to reasons beyond his control

39

after having carried on that activity for more than one year is like a person who has involuntarily lost his job after being employed for that period eligible for the protection afforded by Article 7(3)(b) of Directive 200438 As set out in that provision that cessation of activity must be duly recorded

46 Accordingly the answer to the first question is that Article 7(3)(b) of Directive 200438 must be interpreted as meaning that a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years that national has ceased that activity because of a duly recorded absence of work owing to reasons beyond his control and has registered as a jobseeker with the relevant employment office of the latter Member State



The questions

2 The request has been made in proceedings between DW and the Valsts sociālās apdrošināšanas aģentūra (State Social Insurance Agency Latvia) concerning the determination of the amount of maternity benefit to be granted to DW

12 The referring court has doubts as to whether the provisions of Latvian law on the calculation of the amount of the maternity benefit comply with EU law In that regard it notes that DW is placed at a disadvantage after exercising her freedom of movement by having decided to work for an EU institution Indeed the average contribution basis chosen under Latvian legislation for the 11 months in which DW was employed by an EU institution is considerably less than the basis chosen for the remaining month of work carried out by DW in Latvia According to the referring court the method of calculation used to determine the maternity benefit has the effect that in fact the amount of that benefit depends on the period of activity of the worker concerned in Latvia

14 In those circumstances the Augstākā Tiesa (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling

lsquoMust Article 4(3) TEU and Article 45(1) and (2) TFEU be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings that for the purposes of determining the amount of a maternity benefit does not exclude from the 12-month period which is to be used in determining the average contribution basis the months in which the person worked in an EU institution and was covered by the joint insurance scheme of the [European Union] but that on the grounds that during that period the person was not insured in Latvia equates her income with the average contribution basis in the State which may substantially reduce the amount of the maternity benefit granted in comparison with the possible amount of the benefit that the person could have received if during the period under consideration for the purposes of the calculation she had not worked for an EU institution but had been employed in Latviarsquo

Consideration

40

18 With regard in the first place to whether the provisions of the Treaty relating to the free movement for workers apply it is important to recall that it is settled case-law that an EU national who irrespective of his place of residence and his nationality exercises the right to freedom of movement for workers and who has been employed in a Member State other than that of origin falls within the scope of Article 45 TFEU (judgments of 16 February 2006 Rockler C-13704 EUC2006106 paragraph 14 and of 16 February 2006 Oumlberg C-18504 EUC2006107 paragraph 11 and the case-law cited)

19 In addition an EU national working in a Member State other than his State of origin and who has accepted a post in an international organisation also comes within the scope of that provision (see in particular to that effect judgments of 16 February 2006 Rockler C-13704 EUC2006106 paragraph 15 of 16 February 2006 Oumlberg C-18504 EUC2006107 paragraph 12 and the case-law cited and of 4 July 2013 Gardella C-23312 EUC2013449 paragraph 25) Such a national does not lose his status as worker for the purposes of Article 45 TFEU because his post is with an international organisation (judgment of 4 July 2013 Gardella C-23312 EUC2013449 paragraph 26)

20 It follows that DWrsquos situation comes within the scope of Article 45 TFEU

23 Indeed Articles 45 TFEU is intended in particular to prevent a worker who by exercising his right of freedom of movement has been employed in more than one Member State from being treated without objective justification less favourably than one who has completed his entire career in only one Member State (see inter alia to that effect judgments of 7 March 1991 Masgio C-1090 EUC1991107 paragraph 17 and of 21 January 2016 Commission v Cyprus C-51514 EUC201630 paragraph 42)

24 In the present case it is apparent from the file before the Court that under the applicable national legislation a worker who was not registered as paying State social insurance contributions during the 12-month reference period due to the fact that she worked in an EU institution is equated with a person without an occupation and receives a minimum amount of maternity benefit calculated on the basis of the average contribution in the Member State in question whereas the maternity benefit of a worker who has carried out her career in that Member State is calculated on the basis of the contributions paid to the State social security system during the reference period

25 It is important in that regard to note that although the applicable national legislation does not as such require payment of State social insurance contributions during the reference period as a condition for a maternity benefit to be granted the fact remains that the application of the rules for calculating the benefit at issue produce a similar result since the amount of the benefit granted to a worker who was employed by an EU institution is substantially less than that to which she could have been entitled had she worked in the territory of the Member State concerned and contributed to its social security system

27 It follows that national legislation such as that at issue in the main proceedings constitutes an obstacle to and therefore discourages the pursuit of an occupation outside the Member State in question whether in another Member State or within an EU institution or an international organisation in so far as by accepting such a post a worker who was previously or subsequently insured in the Member State in question receives under the social security regime of that Member State a benefit of an amount substantially lower than that to which she would have been entitled had she not exercised her right to free movement

41

28 Consequently such national legislation constitutes an obstacle to the freedom of movement for workers which is in principle prohibited by Article 45 TFEU

31 In that regard it follows from the Courtrsquos case-law that a measure restricting one of the fundamental freedoms guaranteed by the Treaty may be justified only if it pursues a legitimate objective which is compatible with the Treaty and respects the principle of proportionality For that to be the case such a measure must be appropriate for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it (see inter alia judgments of 16 February 2006 Rockler C-13704 EUC2006106 paragraph 22 and of 16 February 2006 Oumlberg C-18504 EUC2006107 paragraph 19 and the case-law cited)

32 The Latvian Government submits in that regard that the national legislation at issue in the main proceedings is based on reasons in the public interest and that the maternity benefit which relies on the principle of solidarity was introduced to guarantee the stability of the State social security system According to the Latvian Government that system the self-financing of which is ensured by the direct link between the contributions paid and the maternity benefit granted supports the improvement of the demographic situation

33 In that respect it must be noted that while reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty national legislation may however constitute a justified restriction of a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest Therefore it is conceivable that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the public interest capable of justifying the undermining of the provisions of the Treaty concerning the right of freedom of movement for workers (judgment of 21 January 2016 Commission v Cyprus C-51514 EUC201630 paragraph 53 and the case-law cited)

34 Nevertheless according to the settled case-law of the Court it is for the competent national authorities where they adopt a measure derogating from a principle enshrined by EU law to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it The reasons invoked by a Member State by way of justification must thus be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments Such an objective detailed analysis supported by figures must be capable of demonstrating with solid and consistent data that there are genuine risks to the balance of the social security system (judgment of 21 January 2016 Commission v Cyprus C-51514 EUC201630 paragraph 54)

35 It must be noted that in the present case such an analysis is lacking In its written observations to the Court the Latvian Government merely made general statements without providing any specific evidence substantiating its argument that the national legislation at issue in the main proceedings was justified by reasons in the public interest As to the alleged justification concerning the direct link between the contributions paid and the amount of benefit granted it cannot be upheld since the grant of the benefit itself is not subject to any obligation to make contributions

36 Consequently and in the light of the information contained in the file before the Court the restriction of the freedom of movement for workers at issue in the main proceedings is not justified

42

38 In the light of all the foregoing the answer to the question referred is that Article 45 TFEU must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings that for the purposes of determining the average contribution basis when calculating the amount of maternity benefit equates the months of the reference period in which the person concerned worked in an EU institution and was not insured in that Member State with a period of unemployment and applies to them the average contribution basis in that Member State which has the effect of substantially reducing the amount of the maternity benefit granted to that person in comparison with the amount to which she would have been entitled had she been gainfully employed in that Member State alone



13 Judgment of 2132018 C- 67916 A

The questions

20 The appellant in the main proceedings was born in 1992 and resides in the municipality of Espoo in Finland According to the findings made by the referring court he has a substantial need for help including in the performance of his everyday activities The municipality of Espoo therefore provided him with a personal carer to enable him to follow secondary school studies in Finland

21 In August 2013 A applied to the municipality of Espoo under the Disability Services Law for personal assistance amounting to about five hours per week to cover the costs of household chores such as shopping housework and laundry At the time of that application A was in the process of moving to Tallinn in Estonia to attend a three-year full-time law course there as a result of that move he would be spending three or four days a week in Tallinn but intended to return to Espoo at weekends The services that he applied for would therefore have had to be provided outside Finland

28 In those circumstances the Korkein hallinto-oikeus (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling

lsquo(1) Is a benefit such as personal assistance provided for in the Disability Services Law a sickness benefit within the meaning of Article 3(1) of Regulation No 8832004

(2) If the answer to Question 1 is in the negative

Are the rights of Union citizens to move and reside freely in the territory of another Member State laid down in Articles 20 and 21 TFEU restricted in a situation in which the grant abroad of a benefit such as personal assistance within the meaning of the Disability Services Law is not separately provided for and the conditions for grant of the benefit are interpreted in such a way that personal assistance is not granted in another Member State in which the person completes a three-year course of higher education studies leading to a degree

43

ndash Is it relevant in assessing the matter that a benefit such as personal assistance may be granted in Finland in a municipality other than the personrsquos home municipality for example when the person is studying in another municipality in Finland

ndash Must relevance be attached in assessing the matter with respect to EU law to the rights derived from Article 19 of the United Nations Convention on the Rights of Persons with Disabilities

(3) If the Court of Justice considers in its answer to Question 2 that an interpretation of national law such as that in the present case constitutes a restriction of freedom of movement is such a restriction nonetheless justifiable on compelling grounds of the public interest relating to the obligation of the municipality to supervise the arranging of personal assistance the municipalityrsquos possibilities of choosing the most suitable way of arranging assistance and the maintenance of the coherence and efficacy of the system of personal assistance in accordance with the Disability Services Lawrsquo

Consideration

45 It has also been held that benefits relating to the risk of reliance on care are at most supplementary to the lsquoclassicrsquo sickness benefits that fall within Article 3(1)(a) of Regulation No 8832004 stricto sensu and are not necessarily an integral part of them (see inter alia judgments of 30 June 2011 da Silva Martins C-38809 EUC2011439 paragraph 47 and of 1 February 2017 Tolley C-43015 EUC201774 paragraph 46 and the case-law cited)

46 In the case in the main proceedings as the Finnish and Swedish Governments have submitted and as the Advocate General has observed in his Opinion the purpose of the personal assistance provided for by the Disability Services Law cannot be regarded as being to improve the beneficiaryrsquos state of health associated with his disability

47 Indeed Paragraph 1 of the Disability Services Law states that the purpose of the law is to promote conditions which enable a disabled person to live and act with others as an equal member of society and to prevent and eliminate hindrances and barriers caused by disability

48 In addition under Paragraph 8c of the Disability Services Law the purpose of personal assistance is to help severely disabled persons to make their own choices regarding the carrying out of the activities listed in that paragraph namely everyday activities work and studies hobbies participation in society and the maintenance of social interaction

49 Finally it is clear from the travaux preacuteparatoires for that law that the care needs which relate to medical care treatment or supervision are expressly excluded from the scope of personal assistance

50 Consequently the benefit at issue in the main proceedings cannot be considered to relate to one of the risks expressly listed in Article 3(1) of Regulation No 8832004

52 In view of the foregoing the answer to the first question is that Article 3(1)(a) of Regulation No 8832004 must be interpreted as meaning that a benefit such as the personal assistance at issue in the main proceedings which entails inter alia covering the costs to which a severely disabled personrsquos everyday activities give rise with the aim of enabling that person who is not economically active to study in higher education does

44

not fall within the concept of lsquosickness benefitrsquo within the meaning of that provision and is therefore outside the scope of Regulation No 8832004

64 In the present case the referring court has found that the habitual residence of the appellant in the main proceedings continues to be in the municipality of Espoo in accordance with the relevant national legislation

65 It is undisputed that the personal assistance at issue in the main proceedings was refused solely because the course of higher education that A ndashndash who was otherwise eligible for that assistance ndashndash was intending to follow took place in a Member State other than Finland

66 Such a refusal must be regarded as a restriction on the freedom to move and reside within the territory of the Member States which Article 21(1) TFEU affords to every citizen of the Union

67 Such a restriction can be justified in the light of EU law only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective of the provisions of national law It follows from the Courtrsquos case-law that a measure is proportionate when while appropriate for securing the attainment of the objective pursued it does not go beyond what is necessary in order to achieve it (see to that effect inter alia judgment of 26 February 2015 Martens C-35913 EUC2015118 paragraph 34 and the case-law cited)

73 Therefore it cannot be validly maintained that that municipality may have particular difficulties in monitoring compliance with the conditions on which that assistance is granted and supervising the arrangements for the organisation and provision of that assistance

74 Nor can any information be gleaned from the documents before the Court as to the nature of the obstacles that allegedly make it more difficult for the municipality to monitor compliance with the conditions on which use of personal assistance is granted in a situation such as that at issue in the main proceedings as compared with a situation permitted by the Finnish legislation in which the same personal assistance is used outside Finland by a Finnish resident while travelling for business or on holiday

79 In view of the foregoing the answer to the second and third questions is that Articles 20 and 21 TFEU preclude the home municipality of a resident of a Member State who is severely disabled from refusing to grant that person a benefit such as the personal assistance at issue in the main proceedings on the ground that he is staying in another Member State in order to pursue his higher education studies there




45

The European Court of Human Rights held unanimously that there had been a violation of Article 1 of Protocol No 1 (protection of property) to the European Convention on Human Rights

The case concerned the applicantrsquos complaint that she had been ordered to repay unemployment benefits after the employment office made a mistake in authorising the payments The Court observed that Ms Čakarević who was unemployed and suffered from ill health had done nothing to mislead the employment office about her circumstances

The authorities themselves had made the mistake of paying her benefits for about three years longer than the law allowed However it had been Ms Čakarević who had alone been ordered to right the situation including having to pay statutory interest

Given her ill health and lack of income the domestic authorities had therefore violated her rights by placing an excessive individual burden on her

httphudocechrcoeinteng-pressi=003-6072784-7819054


The case of Somorjai v Hungary (application no 6093413) concerned the Hungarian Supreme Courtrsquos (the Kuacuteriarsquos) failure to give reasons for refusing a request for a reference for a preliminary ruling on a pension dispute to the Court of Justice of the European Union (CJEU) and the length of proceedings before domestic courts

The European Court of Human Rights held by a majority that the applicantrsquos complaint regarding the alleged lack of adequate reasoning with respect to a potential reference for a preliminary ruling to the CJEU was inadmissible

It further held unanimously that there had been a violation of Article 6 sect 1 (right to a fair trial) of the European Convention on Human Rights owing to the lengths of proceedings

The Court held on the question of the referral that the refusal to refer the case to the CJEU for a preliminary ruling or the lack of reasoning on that issue could not be seen as arbitrary The applicant had not actually requested for such a reference to the CJEU in the relevant stage of the proceedings Moreover the domestic courts expressed their view that the Hungarian provisions and the EU law did not conflict Accordingly the complaint was rejected by the Court as manifestly ill-founded

On the length of proceedings the Court held that special diligence was necessary in pension disputes It found that the length of the proceedings at issue was excessive and had failed to meet the requirements set up in the Courtrsquos case-law (ldquoreasonable timerdquo)

httpshudocechrcoeinteng22fulltext22[22609341322]22sort22[22kpdate20Descending22]22documentcollectionid222[22JUDGMENTS22]

46






The questions

2 The request has been made in the context of proceedings between Mr Freacutedeacuteric Jahin on the one hand and the ministre de lrsquoEacuteconomie et des Finances (Minister for Economic Affairs and Finance France) and the ministre des Affaires sociales et de la Santeacute (Minister for Social Affairs and Health France) on the other hand concerning the payment of several fiscal contributions and levies for the years 2012 to 2014 relating to income from assets received in France

11 Mr Jahin a French national has lived in China since 2003 He pursues a professional activity in China and is affiliated to a private social security scheme there

12 Between 2012 and 2014 he was subject in France to various levies on income from real estate and on a capital gain realised on the transfer of immovable property

13 Having already been requested to deliver a preliminary ruling by the referring court the Conseil drsquoEacutetat (Council of State France) in another case relating to identical levies which gave rise to the judgment of 26 February 2015 de Ruyter (C-62313 EUC2015123) the Court held in essence that such levies in so far as they have a direct and relevant link with some of the branches of social security listed in Article 4 of Regulation No 140871 come within the scope of that regulation and are subject to the principle that the legislation of a single Member State only is to apply laid down by Article 13(1) of that regulation even though they are imposed on the income from assets of taxable persons irrespective of the pursuit of any professional activity

14 Following that judgment the referring court held by a ruling of 27 July 2015 that any natural person affiliated to a social security scheme in another Member State is entitled to seek the discharge of the contributions which were imposed in France on the income received from his assets

15 The detailed arrangements for reimbursement of the levies paid in breach of EU law were set out by two press releases of 20 October 2015 issued by the secreacutetaire drsquoEacutetat chargeacute du Budget (Minister of State for Finance and Public Accounts with responsibility for the Budget France) and by the directeur geacuteneacuteral des Finances publiques (Director-General for Public Finance France) It is stated therein inter alia that the right to reimbursement is confined solely to natural persons affiliated to a social security scheme of a State other than the French Republic within the European Union the EEA or the Swiss Confederation thus excluding natural persons affiliated to a social security scheme in a third country

2








Consideration


3










4








5








The questions


6




The questions








7






Consideration





8








9











10








The action



11






Consideration




12









13






The questions






14






Consideration





15









16






III Pensions


The questions




17









18

Consideration








19








20







The questions




21






22



Consideration






23










24








The questions



25









Consideration


26








27









28






The questions





29












30

Consideration









31








32








33




IV Unemployment


The questions







34





Consideration




35









36








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The questions










38

Consideration









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The questions





Consideration

40








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13 Judgment of 2132018 C- 67916 A

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7






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8








9











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The action



11






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13






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14






Consideration





15









16






III Pensions


The questions




17









18

Consideration








19








20







The questions




21






22



Consideration






23










24








The questions



25









Consideration


26








27









28






The questions





29












30

Consideration









31








32








33




IV Unemployment


The questions







34





Consideration




35









36








37



The questions










38

Consideration









39





The questions





Consideration

40








41








42




13 Judgment of 2132018 C- 67916 A

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Consideration








44












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46










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6




The questions








7






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8








9











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The action



11






Consideration




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13






The questions






14






Consideration





15









16






III Pensions


The questions




17









18

Consideration








19








20







The questions




21






22



Consideration






23










24








The questions



25









Consideration


26








27









28






The questions





29












30

Consideration









31








32








33




IV Unemployment


The questions







34





Consideration




35









36








37



The questions










38

Consideration









39





The questions





Consideration

40








41








42




13 Judgment of 2132018 C- 67916 A

The questions







43




Consideration








44












45













46








5








The questions


6




The questions








7






Consideration





8








9











10








The action



11






Consideration




12









13






The questions






14






Consideration





15









16






III Pensions


The questions




17









18

Consideration








19








20







The questions




21






22



Consideration






23










24








The questions



25









Consideration


26








27









28






The questions





29












30

Consideration









31








32








33




IV Unemployment


The questions







34





Consideration




35









36








37



The questions










38

Consideration









39





The questions





Consideration

40








41








42




13 Judgment of 2132018 C- 67916 A

The questions







43




Consideration








44












45













46








The questions


6




The questions








7






Consideration





8








9











10








The action



11






Consideration




12









13






The questions






14






Consideration





15









16






III Pensions


The questions




17









18

Consideration








19








20







The questions




21






22



Consideration






23










24








The questions



25









Consideration


26








27









28






The questions





29












30

Consideration









31








32








33




IV Unemployment


The questions







34





Consideration




35









36








37



The questions










38

Consideration









39





The questions





Consideration

40








41








42




13 Judgment of 2132018 C- 67916 A

The questions







43




Consideration








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46




The questions








7






Consideration





8








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