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AdvC 04/15Rulings of the Court of Justice concerning the coordination of social security systems (mid-2014 to mid-2015)SECRETARIAT – 30.09.2015

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-2014 to mid-2015)

Note from the Secretariat of 30 September 2015

In this note, the Secretariat informs the Advisory Committee of the rulings of the Court of Justice of the European Union concerning the coordination of social security systems over the period from the summer of 2014 to the summer of 2015.

I- Sickness benefits

1) Judgment of 9 October 2014, Case C-268/13, Elena Petru/Casa Județeană de Asigurări de Sănătate Sibiu, EU:C:2014:2271

2) Judgment of 16 September 2015, Case C-433/13, European Commission v. Slovak Republic, EU:C:2015:602

II- Determination of the legislation applicable

3) Judgment of 15 January 2015, Case C-179/13, Evans, EU:C:2015:12

4) Judgment of 26 February 2015, Case C-623/13, Ministre de l'Économie/ de Ruyter, EU:C:2015:123

5) Judgment of 19 March 2015, Case C-266/13, Kik v. Staatssecretaris van Financiën, EU:C:2015:188

6) Judgment of 23 April 2015, Case C-382/13, Franzen, EU:C:2015:261

7) Judgment of 9 September 2015, Cases C-72/14 and C-197/14, X, van Dijk, EU:C:2015:564

III- Pensions

8) Judgment of 5 November 2014, Case C-103/13, Somova, EU:C:2014:2334

9) Judgment of 18 December 2014, Case C-523/13, Walter Larcher, EU:C:2014:2458

10) Judgment of 22 January 2015, Cases C-401/13 and C-432/13, Vasiliki Balazs v. Casa Judeţeană de Pensii Cluj, EU:C:2015:26

11) Judgment of 12 February 2015, Case C-114/13, Bouman, EU:C:2015:81

12) Judgment of 4 June 2015, Case C-543/13, Raad van bestuur van de Sociale verzekeringsbank v. Fischer-Lintjens, EU:C:2015:359

13) Judgment of 16 September 2015, Case C-361/13, European Commission v. Slovak Republic, EU:C:2015:601

IV- Unemployment benefits

14) Judgment of 5 February 2015, Case C 655/13, Mertens, EU:C:2015:62

V- Family benefits

15) Judgment of 6 November 2014, Case C-4/13, Familienkasse /Fassbender-Firman, EU:C:2014:2344

VI- Equal treatment

16) Judgment of 11 November 2014, Case C 333/13, Dano, v. Jobcenter Leipzig, EU:C:2014:2358

17) Judgment of 15 September 2015, Case C-67/14, Alimanovic, EU:C:2015:597

VII- International officials

18) Judgment of 4 February 2015, Case C-647/13, ONP v. Melchior, EU:C:2015:54

19) Judgment of 10 September 2015, Case C-408/14, Wojciechowski v. ONP, EU:C:2015:591

VIII- Agreement with Turkey

20) Judgment of 14 January 2015, Case C-171/13, Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv) v. Demirci, EU:C:2015:8.

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I- Sickness benefits

1) Judgment of 9 October 2014, Case C-268/13, Petru

Questions

The request has been made in proceedings between, on the one hand, Ms Petru and, on the other, the Casa Județeană de Asigurări de Sănătate Sibiu (Health Insurance Agency, Sibiu District) and the Casa Națională de Asigurări de Sănătate (National Health Insurance Agency) concerning hospital treatment provided in Germany in respect of which Ms Petru claims reimbursement by way of damages.

In those circumstances, the Tribunalul Sibiu decided to stay proceedings and to refer the following question to the Court:

‘In the light of the second subparagraph of Article 22(2) of Regulation … No 1408/71, is the requirement that the person concerned be unable to obtain treatment in the country of residence to be construed as categorical or as reasonable; that is to say, where, although the required surgery could, in technical terms, be carried out in due time in the country of residence — in that the necessary specialists are present there and have the same level of specialist skills as those abroad — the lack of medicines and basic medical supplies and infrastructure means that such a situation can, for the purposes of that provision, be equated with a situation in which the necessary medical treatment cannot be provided?’

Appraisal

As regards the second condition, with which the question in the present case is concerned, the Court has held that the authorisation required cannot be refused if the same or equally effective treatment cannot be given in good time in the Member State of residence of the person concerned (see, to that effect, Inizan, C 56/01, EU:C:2003:578, paragraphs 45 and 60; Watts, C-372/04, EU:C:2006:325, paragraph 61, and Elchinov, EU:C:2010:581, paragraph 65).

One of the circumstances that the competent institution is required to take into account may, in a specific case, be the lack of medication and basic medical supplies and infrastructure, such as that alleged in the main proceedings. As the Advocate General observes in point 25 of his Opinion, the second subparagraph of Article 22(2) of Regulation No 1408/71 does not distinguish between the different reasons for which a particular treatment cannot be provided in good time. Clearly, however, such a lack of medication and of medical supplies and infrastructure can, in the same way as the lack of specific equipment or particular expertise, make it impossible for the same or equally effective treatment to be provided in good time in the Member State of residence.

However, as the Romanian and United Kingdom Governments and the European Commission have argued, it follows from the case-law cited in paragraph 31 above that the question whether that is indeed impossible must be determined, first, by reference to all the hospital establishments in the Member State of residence that are capable of providing the treatment in question and, second, by reference to the period within which the treatment could be obtained in good time.

As regards the main proceedings, the Romanian Government observes that Ms Petru had the right to approach any other medical establishment in Romania with the equipment necessary to carry out the treatment that she needed. That government also points out — as do the respondents in the main proceedings — that the general practitioner’s report indicates that the treatment needed to be carried out within a period of three months.

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Accordingly, if the facts alleged by Ms Petru concerning the lack of medication and basic medical supplies and infrastructure at the Institutul de Boli Cardiovasculare in Timișoara are established, it will be for the referring court to determine whether that treatment could have been carried out within three months in another hospital establishment in Romania.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=158423&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=413218

2) Judgment of 16 September 2015, Case C-433/13, Commission/Slovakia

The Action

By its application, the European Commission asks the Court to declare that, by failing to grant to beneficiaries residing in a Member State other than the Slovak Republic care allowance, assistance allowance and a compensatory allowance for increased costs provided for by Law No 447/2008 on benefits to compensate for severe disability, amending and supplementing certain laws, as amended (‘Law No 447/2008’), the Slovak Republic has failed to fulfil its obligations under Article 48 TFEU and Articles 7 and 21 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1 and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43) (‘Regulation No 883/2004’).

Appraisal

According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to beneficiaries on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 4(1) of Regulation No 883/2004 (see, judgment in da Silva Martins, C-388/09, EU:C:2011:439, paragraph 38 and the case-law cited).

However, the Commission has not established that those criteria give entitlement to the benefits at issue without the competent authority having any discretion as to their grant.

The expression ‘may receive’ in Articles 22(1), 38(1) and 40(1) of Law No 447/2008 and Article 43(1) thereof, which provide that the entitlement to a compensatory allowance and its payment arise from a valid decision of the competent authority as to the recognition of that right, tend to support the position of the Slovak Republic, according to which the administration has discretion as to the grant of the benefits at issue.

Accordingly, those benefits do not constitute social security benefits within the meaning of Regulation No 883/2004.

The action brought by the Commission must accordingly be dismissed.


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II- Determination of the legislation applicable

3) Judgment of 15 January 2015, Case C-179/13, Evans

Questions

Ms Evans, a British national, worked in the United Kingdom from 1972 to 1973 then, that same year, settled in the Netherlands, where she was employed first by various undertakings and then, until April 1980, at the Consulate General of the United Kingdom in Rotterdam, the Netherlands.

Since 17 November 1980, she has worked at the Consulate General of the United States of America in Amsterdam, as a member of the administrative and technical staff within the meaning of Article 1(1)(e) of the Vienna Convention of 1963, and, since taking up her duties there, has been covered by a health insurance policy taken out by her employer with a Dutch private insurance company.

Taking the view that Ms Evans could not be regarded as a permanent resident of the Netherlands within the meaning of Article 1(3) of the Vienna Convention of 1963, the Ministry of Foreign Affairs granted her, when she took up her duties, the privileged status provided for by the Vienna Convention of 1963, which in particular entailed exemption from most taxes and social security contributions. Accordingly, Ms Evans has not been affiliated to any branch of social security since that date.

In 1999, the Netherlands authorities asked Ms Evans to make the choice referred to in paragraph 19 of this judgment between retaining her privileged status and in future becoming affiliated to the general Dutch social security scheme. On 5 December of that year, she opted to retain this status in the following terms: ‘I wish to retain my privileged status, which means that I am not insured under the Netherlands’ social security scheme and therefore have no entitlement to the cover it provides.’

In considering whether, in a situation such as that at issue in the main proceedings, direct or indirect discrimination on grounds of nationality exists and, in the alternative, whether, if there is indirect discrimination, it is justified, the Centrale Raad van Beroep decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Must Article 2 and/or Article 16 of Regulation No 1408/71 be construed as meaning that a person like Ms Evans, who is a national of a Member State, who exercised her right of freedom of movement for workers, to whom the social security legislation of the Netherlands was applicable and who then went to work as a member of the service staff of the Consulate General of the United States of America in the Netherlands, from the commencement of such work no longer falls under the personal scope of Regulation No 1408/71?

If not:

2. (a) Must Article 3 of Regulation No 1408/71 and/or Article 7(2) of Regulation No 1612/68 be construed as meaning that the application of privileged status to Ms Evans, which in this case consists inter alia of not being compulsorily insured for the purposes of social security and of not paying contributions in that regard, should be considered a sufficient justification for discriminating on grounds of nationality?

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(b) What significance must be attached in that regard to the fact that in December 1999, Ms Evans, when asked, opted for the continuation of the privileged status?’

Appraisal

As regards the social security scheme applicable to consular staff, Article 48 of the Vienna Convention of 1963 provides that members of the consular post, with respect to services rendered by them for the sending State, are in principle exempt from social security provisions which may be in force in the receiving State, while Article 71(2) of the Convention qualifies this by providing that members of the consular post who are nationals of or permanently resident in the receiving State are to enjoy facilities, privileges and immunities in so far as these are granted to them by the receiving State.

It follows that the Kingdom of the Netherlands intended to take advantage of the option afforded to it by Article 71(2) of the Vienna Convention of 1963 of exempting certain staff at consular posts, such as Ms Evans, from the Netherlands social security scheme.

Accordingly, in view of the above, it should be held that, in a situation such as that of Ms Evans, a member of staff of a consular post is not, for the duration of the period in which he is employed by the consular post of a third State, subject to the social security legislation of the Member State concerned, within the meaning of Article 2 of Regulation No 1408/71, and, therefore, does not fall within the scope of that regulation.

This finding cannot be called into question by Article 16 of Regulation No 1408/71 read in the light of the relevant provisions of the Vienna Convention of 1963.

In this regard, Ms Evans argues that she is subject to Netherlands legislation pursuant to Article 16(1), which provides that the provisions of Article 13(2)(a) of that regulation apply to members of the service staff of diplomatic missions or consular posts and to the private domestic staff of agents of such missions or posts.

With regard, more particularly, to the members of the service staff of diplomatic missions and consular posts referred to in Article 16 of Regulation No 1408/71, it should be held that this article, like Article 13(2)(a) of this regulation, as is clearly apparent from the heading of Title II of this regulation and the wording of Article 16, merely determines the national legislation applicable. Article 16 does not, however, lay down the conditions creating the right or the obligation to become affiliated to a social security scheme; those conditions should be determined by the legislation of each Member State in the light of the international law applicable.

Thus neither Article 13(2)(a) of Regulation No 1408/71 nor Article 16 thereof have the effect of conferring on nationals of Member States employed at consular posts of a third State who, like Ms Evans, are not subject to the social security legislation of a Member State, within the meaning of Article 2 of this regulation, a right of affiliation to the social security scheme of a Member State or of imposing on them an obligation to become affiliated to such a scheme.

As the Vienna Convention of 1963 does not require compulsory affiliation of members of the consular post who are permanent residents of the receiving State to a social security scheme of that State, such an interpretation accords with the requirements of that convention.

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4) Judgment of 26 February 2015, Case C-623/13, de Ruyter

Questions

Mr de Ruyter, a Netherlands national resident in France, is employed by Vermeer Verenigde Bedrijven BV, a Netherlands company.

The French tax authorities took the view that Mr de Ruyter’s income from purchased life annuities constituted income from assets and declared him subject, in relation to those annuities, to the CSG, the CRDS, the social levy of 2% and the additional contribution of 0.3% to that levy.

It was on that basis that the Conseil d’État decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Do the tax levies on income from assets, such as the social contribution on income from assets, the social debt repayment contribution based on that same income, the social levy of 2% and the additional contribution to that levy, have, by virtue of the mere fact that they contribute to the financing of compulsory French social security schemes, a direct and relevant link with some of the branches of social security listed in Article 4 of Regulation [No 1408/71], and do they thus fall within the scope of that regulation?’

Appraisal

Accordingly, in cases which concerned tax levies imposed by the French tax authorities on employment income and substitute income received by employed and self-employed persons residing in France who were subject to the tax regime of the French Republic, but who worked in another Member State, the Court found that those levies were allocated specifically and directly to financing social security in France and concluded from this that they had a direct and sufficiently relevant link with the legislation governing the branches of social security listed in Article 4 of Regulation No 1408/71 (judgments in Commission v France, EU:C:2000:84, paragraphs 36 and 37, and Commission v France, EU:C:2000:85, paragraphs 34 and 35).

The same conclusion must follow with regard to the levies at issue in the main proceedings, which are not imposed on the employment income and substitute income of workers, but which are imposed on income from assets, since it is not in dispute that the proceeds of those levies are allocated specifically and directly to the financing of certain branches of social security in France or to the discharge of their debts.

Those levies therefore have a direct and sufficiently relevant link with the legislation governing the branches of social security listed in Article 4 of Regulation No 1408/71, irrespective of the absence of a link between the income from assets of taxable persons and the pursuit of a professional activity by them.

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In that regard, as the Advocate General observed in point 41 of her Opinion, the application of the provisions of Regulation No 1408/71 is not conditional on the pursuit of a professional activity.

According to settled case-law, the existence of an employment relationship is irrelevant for the purposes of the application of Regulation No 1408/71, as the determining factor in this regard is the fact that a person is insured, compulsorily or on an optional basis, for one or more of the contingencies covered by a general or special social security scheme mentioned in Article 1(a) of that regulation (see, to that effect, judgments in Martínez Sala, C-85/96, EU:C:1998:217, paragraph 36, and Borger, C-516/09, EU:C:2011:136, paragraphs 26 and 28).

That principle that the legislation of a single Member State applies in matters of social security is aimed at avoiding the complications which may ensue from the simultaneous application of a number of national legislative systems and at eliminating the unequal treatment which, for persons moving within the European Union, would be the consequence of a partial or total overlapping of the applicable legislation (see, to that effect, judgments in Commission v France, EU:C:2000:84, paragraph 46; Commission v France, EU:C:2000:85, paragraph 43; and Allard, C-249/04, EU:C:2005:329, paragraph 28).

It follows from the foregoing that the application of the provisions of Regulation No 1408/71 cannot be limited to the income that those persons derive from their employment relationships, as otherwise disparities would be created in the application of Article 13 of that regulation depending on the source of their income.

To require those who, among the residents of a Member State, are insured under the social security scheme of another Member State to finance, in addition, even if only partially, the social security scheme of the Member State of residence would give rise to unequal treatment under Article 13 of Regulation No 1408/71, since all other residents of the latter Member State are required to contribute only to its social security scheme (see, to that effect, judgments in Commission v France, EU:C:2000:84, paragraphs 45 to 48, and Commission v France, EU:C:2000:85, paragraphs 42 to 45).

Furthermore, as the Advocate General observed in point 57 of her Opinion, due to the principle laid down by Article 13(1) of Regulation No 1408/71 that the legislation of a single Member State applies, those findings cannot be undermined by the fact that Mr de Ruyter’s income from assets may not yet have been subject to a levy in the form of social security contributions in the Member State of employment.


5) Judgment of 19 March 2015, Case C-266/13, Kik

Questions

The question which is central to the dispute in the main proceedings is whether, in the light of Regulation No 1408/71, Mr Kik is liable to pay Netherlands social security contributions for the period from 1 June 2004 to 24 August 2004. During that period, the vessel on which he was working was positioned, in succession, above the continental shelf adjacent to a third State, in international waters and above the part of the continental shelf adjacent to certain Member States (the Netherlands and the United Kingdom).

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In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) (a) Must the rules regarding the scope ratione personae of Regulation No 1408/71 and the rules which determine the territorial scope of the designation rules in Title II of that regulation be interpreted as meaning that those designation rules apply in a case such as the present, which concerns (i) a worker residing in the Netherlands who (ii) is a national of the Netherlands, (iii) in any event, was previously compulsorily insured in the Netherlands, (iv) is employed as a seafarer by an employer established in Switzerland, (v) carries out his work on board a pipe-laying vessel which flies the Panamanian flag, and (vi) carries out those activities first outside the territory of the European Union (approximately 3 weeks above the continental shelf of the United States and approximately 2 weeks in international waters) and then above the continental shelf of the Netherlands (periods of one month and approximately one week) and of the United Kingdom (a period of slightly more than one week), while (vii) the income earned thereby is subject to income tax levied by the Netherlands?

(b) If so, is Regulation No 1408/71 then applicable only on the days when the person concerned works above the continental shelf of a Member State of the European Union, or also during the preceding period in which he worked elsewhere outside the territory of the Union?

(2) If Regulation No 1408/71 applies to a worker as referred to in question 1(a), what legislation or sets of legislation does the regulation then designate as applicable?’

Appraisal

In that regard, the Court observes, first, that, under Article 2(1), Regulation No 1408/71 applies, inter alia, to employed persons who are, or have been, subject to the legislation of one or more Member States and who are nationals of one of the Member States.

It is clear from the order for reference that during the period at issue in the main proceedings that was the case of Mr Kik. He is a Netherlands national and was insured, during that period, with the Netherlands social security scheme by reason of his residence in the Netherlands. Furthermore, although the dispute in the main proceedings concerns the question whether Mr Kik was subject, during the period concerned, to the Netherlands legislation or to the Swiss legislation, it is not disputed that he was subject to one or other of those sets of legislation.

Second, the Court notes that the work carried out on board a pipe-laying vessel cannot be treated as work carried out on the territory of a Member State when the vessel is located above the part of the continental shelf adjacent to that Member State.

That is because the jurisdiction which Article 79(4) of the Convention on the Law of the Sea confers on a coastal State is limited to cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of the latter’s resources and thus does not extend to a vessel which is concerned with laying those cables or pipelines. Nor can such a vessel be regarded as an ‘artificial island’, an ‘installation’ or a ‘structure’ on the continental shelf, within the meaning of Article 80 of that convention. In any event, there is no indication in the order for reference that the pipelines laid by the vessel on which Mr Kik was working during the periods when it was above the part of the continental shelf adjacent to certain Member States were intended for the exploration of the continental shelf or the exploitation of its resources.

However, in a situation such as Mr Kik’s, the finding that the work carried out on board a pipe-laying vessel cannot be treated as work carried out on the territory of a Member State

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when the vessel is located above the part of the continental shelf adjacent to that Member State is not, on its own, capable of calling into question the applicability of Regulation No 1408/71. Indeed, the mere fact that a worker carries on his activities outside the territory of the European Union is not sufficient to exclude the application of the EU rules on the free movement of workers, as long as the employment relationship retains a sufficiently close connection with the Union (judgment in Aldewereld, EU:C:1994:271, paragraph 14).

As the Advocate General has observed in point 40 of his Opinion, Mr Kik’s employment during the period at issue in the main proceedings is characterised by a number of factors establishing a connection with the territory of the Kingdom of the Netherlands and that of the Swiss Confederation (a State treated as a Member State for the purposes of Regulation No 1408/71). It is sufficient to note in that regard that Mr Kik was resident in the Netherlands and that his employer was established in Switzerland.

In paragraph 11 of Aldewereld the Court stated that none of the provisions of Title II of Regulation No 1408/71 relate directly to the situation of a person who has been employed by an undertaking in the European Union but who does not engage in any activity within the Union because he works exclusively in the territory of a third State.

In the present case, just as in Aldewereld (EU:C:1994:271, paragraph 21), the only factors connecting the situation with the legislation of a Member State, or of a State treated as such, are the residence of the employee and the place where the employer is established. As the Court stated in paragraph 22 of Aldewereld, according to the scheme of Regulation No 1408/71, application of the legislation of the Member State in which the worker resides appears to be an ancillary rule which comes into play only where that legislation has a link with the employment relationship. Thus, when the worker does not reside in any of the Member States where he works, it is normally the legislation of the Member State where his employer has its registered office or place of business which applies.

In a situation such as that at issue in the main proceedings, support for that finding is given by the first sentence of Article 14(2)(a) of Regulation No 1408/71. That provision indicates the scheme of the regulation with regard to persons whose work is essentially itinerant and carried out in circumstances that do not permit it to be connected to one particular place; under that provision the legislation of the Member State in which the employer has its registered office or place of business is applicable to those persons.

Even though Article 14 of Regulation No 1408/71 contains — as is apparent from its title — rules applicable to persons other than mariners, the situation at issue in the main proceedings, namely that of an employee carrying out his work outside the territory of the European Union on board a vessel flying the flag of a third State, is comparable to that of persons directly concerned by that provision, inasmuch as neither the flag State nor the place of work is connected with the legislation of a Member State.

Consequently, in the situation of a worker such as Mr Kik, the applicable legislation is that of the Member State, or the State treated as such, in which his employer has its registered office or place of business.

However, in view of the fact that the Court does not have any information concerning the nature of the insurance scheme provided for by the Swiss legislation and given that, under the Netherlands legislation, it is the latter that governs the situation of an employee such as Mr Kik during the period at issue in the main proceedings in that it provides that such a person is to be insured under a compulsory scheme, it must be stated that, in accordance with the first indent of Article 15(2) of Regulation No 1408/71, where application of the legislation of two or more Member States (and the Swiss Confederation must be treated as

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such) entails insurance under a voluntary insurance scheme and under a compulsory insurance scheme, the person concerned is to be subject exclusively to the compulsory insurance scheme.


6) Judgment of 23 April 2015, Case C-382/13, Franzen

Questions

The request has been made in the course of three sets of proceedings between Ms Franzen, Mr Giesen and Mr van den Berg and the Raad van bestuur van de Sociale verzekeringsbank (Management Board of the Social Insurance Bank) (‘the SVB’) respectively, regarding decisions by which the SVB refused to grant Ms Franzen child benefits and reduced the partner’s allowance and old-age pension, respectively, of Mr Giesen and Mr van den Berg.

In those circumstances the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) (a) Must Article 13(2), introductory sentence and subparagraph (a), of Regulation No 1408/71 be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract, is on that ground subject there to the social security legislation of the State of employment?

(b) If Question 1(a) is answered in the affirmative, does the subjection to the social security legislation of the State of employment apply both on the days on which the employment activities are performed and on the days on which those activities are not performed and, if so, how long does that subjection continue after the final employment activities have in fact been carried out?

(2) Does Article 13(2), introductory sentence and subparagraph (a), in conjunction with Article 13(1), of Regulation No 1408/71 preclude a migrant worker to whom the social security legislation of the State of employment applies from being regarded, by virtue of national legislation of the State of residence, as an insured person under the AOW in the latter State?

(3) (a) Must EU law, in particular the provisions concerning freedom of movement for workers and/or citizens of the Union, be interpreted as precluding, in the circumstances of the present cases, the application of a national provision such as Article 6a of the AOW and/or the AKW, under which a migrant worker residing in the Netherlands is excluded there from insurance cover under the AOW and/or the AKW on the ground that he is subject exclusively to German social security legislation, even in circumstances where that worker as a “geringfügig Beschäftigte” (person in minor employment) is excluded in Germany from insurance cover for the purposes of “Altersrente” (old-age pension) and is not entitled to “Kindergeld” (child benefits)?

(b) Is it significant, for the purposes of the answer to Question 3(a), that it was possible to take out voluntary insurance under the AOW or to request the SVB to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?’

Appraisal

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The Court concluded that Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a person covered by that regulation who is employed part-time in the territory of a Member State is subject to the legislation of that State both on the days on which he pursues that activity and on the days on which he does not (judgment Kits van Heijningen, C-2/89, EU:C:1990:183, paragraph 15).

The same considerations apply to casual employment such as that in the main proceedings. It should be made clear that the legislation of the Member State of employment continues to be applicable for as long as the person concerned is employed in the territory of that Member State. To that end, the existence of an employment contract and the type of employment, whether partial or casual, or even the number of hours worked by the employee, are irrelevant.

Consequently, the answer to the first question is that Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a resident of a Member State, who comes within the scope of that regulation and who works for several days per month on the basis of an on-call contract in the territory of another Member State, is subject to the legislation of the State of employment both on the days on which he performs the employment activities and on the days on which he does not.

Although the legislation of the State of residence at issue in the main proceedings precludes, under Article 6a(b) of both the AKW and the AOW, migrant workers such as the parties in the main proceedings from being covered by the old-age pension insurance scheme of that State, the referring court clarifies that, if the answer to the second question is in the negative, then it is for the referring court to disregard the exclusion clause and to apply the hardship clause provided for in the 1989 BUB and the 1999 BUB in order to remedy any unacceptable unfairness which might arise from the insurance obligation or the exclusion therefrom.

It is against that background that the question arises as to whether Article 13 of Regulation No 1408/71 precludes the Member State of residence from granting the benefits at issue.

It should be recalled that, in the judgments in Bosmann (C-352/06, EU:C:2008:290) and in Hudzinski and Wawrzyniak (C-611/10 and C-612/10, EU:C:2012:339), the Court has already condoned exceptions to the single State principle and has recognised that a Member State which does not have jurisdiction by virtue of the provisions of Title II of Regulation No 1408/71 has the power to grant, under certain conditions, family benefits to a migrant worker under its own national law.

Consequently, it must be found, as was held in Bosmann (C-352/06, EU:C:2008:290), that Article 13(2)(a) of Regulation No 1408/71, read in conjunction with Article 13(1) of that regulation, does not preclude, in circumstances such as those in the main proceedings, a migrant worker who is subject to the social security scheme of the State of employment, who fulfils the substantive conditions for granting such benefits under the legislation of his State of residence and whose situation does not give rise to an overlapping of the same form of family benefits in relation to the same period, from receiving family benefits or an old-age pension from the latter State.


7) Judgment of 9 September 2015, Cases C-72/14 and C-197/14, van Dijk

Questions

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The requests have been made in proceedings between, in the first case, X and the Inspecteur van Rijksbelastingdienst (Inspector, National Tax Office) and, in the second case, Mr van Dijk and the Staatssecretaris van Financiën (State Secretary for Finance), concerning tax assessments issued in respect of them.

From 1 January to 30 June 2007 M van Dijk, who was at that time resident in the Netherlands, was employed by Christa Intershipping Sarl, a company established in Luxembourg. During that period he worked within the territory of a number of Member States as a captain on an inland waterway vessel, primarily on the Rhine, its tributaries and its links to the open sea.

The Luxembourg authorities issued an E 101 certificate to Mr van Dijk which stated that the Luxembourg social security legislation is applicable to him as from 1 September 2004, pursuant to Regulation No 1408/71.

Mr van Dijk was served with an income tax assessment for the year 2007 in respect of social security contributions and a tax assessment for health care insurance contributions for the same year, calculated on the basis of his income. Mr van Dijk challenged those tax assessments but they were upheld by the Netherlands tax authorities.

It is on that basis that the Hoge Raad der Nederlanden decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is the Hoge Raad der Nederlanden, as the highest national court, required, because of a question referred for a preliminary ruling by a lower national court, to refer a question to the Court of Justice for a preliminary ruling or must it await the answer to that question referred by the lower national court, even if it takes the view that the correct application of EU law on the matter to be decided by it is so obvious as to leave no scope for any reasonable doubt as to how that question must be answered?

2. If the first question is to be answered in the affirmative, are the Netherlands authorities in the area of social security then bound by an E 101 certificate issued by the authorities of another Member State, even where the case involves a Rhine boatman, with the result that the rules on the applicable legislation in Regulation No 1408/71, to which that certificate refers, are not applicable pursuant to Article 7(2)(a) of that regulation?’

Appraisal

First of all, it must be borne in mind that the E 101 certificate corresponds to a standard form, issued in accordance with Title III of Regulation No 574/72, by the institution designated by the competent authority of the Member State whose social security legislation is applicable, in order to certify that migrant workers finding themselves in one of the situations referred to in certain provisions of Title II of Regulation No 1408/71 are subject to the legislation of that Member State, as referred to in paragraphs 7 and 8 of this judgment.

It thus appears that the use of the E 101 certificate is relevant only in the event of application of the rules for determining the social security legislation applicable to the workers concerned, as laid down in Title II of Regulation No 1408/71. This view is supported by the references in the standard form, which do not cover situations other than those relating to workers coming within the scope of Title II.

The E 101 certificates at issue in the main proceedings in the cases at hand, however, were issued in respect of Rhine boatmen, as observed in paragraph 34 of this judgment.

It follows that Rhine boatmen do not come within the scope of Regulation No 1408/71, but rather the Rhine Agreement, with the result that the question of which social security

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legislation is applicable to them must be determined not as provided for under Title II of that regulation but in accordance with that agreement.

In those circumstances, a certificate issued by an institution of a Member State confirming that a worker classified as a Rhine boatman is subject to the legislation of that Member State, such as the certificates at issue in the main proceedings, cannot be regarded as being an E 101 certificate, even though it may come in the same form and irrespective of whether it was issued by the institution designated by the competent authority of a Member State within the meaning of Regulation No 1408/71 for issuing that type of certificate.

In any event, the fact that a certificate concerning a Rhine boatman issued in the form of an E 101 certificate, such as the ones at issue in the main proceedings, does not produce the effects arising from an E 101 certificate, does not necessarily mean that the certificate has no legal effect whatsoever.

In the light of the foregoing considerations, Article 7(2)(a) of Regulation No 1408/71 and Articles 10c to 11a, 12a and 12b of Regulation No 574/72 must be interpreted as meaning that a certificate issued by the competent institution of a Member State in the form of an E 101 certificate in order to certify that a worker is subject to the social security legislation of that Member State, when that worker comes within the scope of the Rhine Agreement, is not binding on the institutions of other Member States. The fact that the issuing institution did not intend to issue a genuine E 101 certificate but used the standard form of that certificate for administrative reasons is irrelevant in that regard.


III- Pensions

8) Judgment of 5 November 2014, Case C-103/13, Somova

Questions

On 18 January 2007, Ms Somova applied for the grant of an old-age pension, declaring that she had worked in Bulgaria from 18 January 1957 until 31 May 1996 and that she had not been insured since 4 June 1996. That application was rejected by decision of 6 February 2007 on the ground that Ms Somova, who had paid contributions in Bulgaria over a total contribution period of 33 years, 11 months and 17 days, did not meet the requirements relating to age and the length of the contribution period laid down by Bulgarian law.

Following an application for an old-age pension which Ms Somova made in 2011 to the competent Austrian social security body, the SUSO received on 20 September 2011 forms E 001/AT and E 205/AT. Those forms indicated that Ms Somova had been affiliated, under the Austrian Federal Law on Social Insurance, to the social security scheme for self-employed persons from October 1995 to December 2000 and from January 2001 to July 2011. During those periods, Ms Somova had been working as a farmer in Austria.

The SUSO inferred from the forms that, on 5 July 2007, the date on which she had been granted her old-age pension, Ms Somova had not ceased paying social security contributions. In three decisions made on that basis, the SUSO annulled (i) the decision granting Ms Somova an old-age pension and (ii) the notices increasing the amount thereof, and demanded the repayment, together with interest, of the sums paid to her.

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In those circumstances, the Administrativen sad Sofia-grad (Administrative Court, Sofia) stayed proceedings pending a preliminary ruling from the Court on the following questions:

‘1. In the circumstances [of the case in the main proceedings], should the first paragraph of Article 48 [TFEU] and Article 49 [TFEU] be interpreted as permitting a provision of national legislation, such as [that at issue in the main proceedings], [namely] Article 94(1) of the [KSO], whereby insurance is required to have come to an end in order to grant an old age pension to a national of a Member State who at the time of applying for a pension is working as a self-employed person in another Member State and falls within the scope of application of [Regulation No 1408/71]?

2. Should Article 94(2) of Regulation No 1408/71, in conjunction with subparagraph (a) of the first paragraph of Article 48 TFEU, be interpreted as permitting an exception to the rule on aggregating periods of insurance in relation to periods completed in another Member State before the regulation was applied by the Member State to which the application for a pension is made, where the said provision affords the person insured the right to choose whether he or she specifies such periods for aggregation purposes and to assess the need for aggregation if, purely according to the law of the State to which the application is made, the period completed is insufficient to create entitlement to a pension and a sufficient period of time can only be achieved by paying insurance contributions?

In those circumstances, does subparagraph (a) of the first paragraph of Article 48 TFEU permit the application of Article 46(2) of Regulation No 1408/71 on the aggregation of periods of insurance following commencement of the application of the regulation to be waived at the discretion of the party insured where that party does not specify periods of insurance completed in another Member State in his or her application for a pension?

3. Should Article 12(1) of Regulation No 1408/71 be interpreted as permitting recognition of periods of insurance as a result of paying insurance contributions as provided for under Bulgarian law in Article 9(3) [of the transitional and final provisions of the KSO], where, as in the circumstances appertaining in the main proceedings, such recognised periods of insurance overlap with periods of insurance completed under the law of another Member State?

4. Should Article 12(2) of Regulation No 1408/71 be interpreted as permitting a Member State to stop payments and demand the refunding of all payments of an old age pension granted to a national of that Member State under national law if the conditions laid down in the regulation only existed at the time that the pension was granted and, as a result of considerations based solely on national law according to which the insurance of the party concerned in another member State had not come to an end by the time that the pension was granted, a period of insurance was recognised under national law due to payment of insurance contributions without taking into account periods of insurance which were being completed in another Member State at the time that the pension was granted and without considering whether a different amount of the pension should have been assessed?

If the refunding of pension payments is permissible, does it then follow from the principles of equivalence and effectiveness derived from EU law (‘EU law’) that interest is due even where the national law of the Member State does not make provision for payment of interest in the case of repayment of a pension granted pursuant to an international treaty?’

Appraisal

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With respect to a possible restriction of the fundamental freedoms, it must be noted that that provision requires, in order for an old-age pension to be awarded, a formal discontinuance of the payment of contributions which results in a termination of occupational activities. The Bulgarian Government confirmed, at the hearing, that a very brief discontinuance lasting one day was sufficient to fulfil that condition. Moreover, the insured person was not denied the right to exercise an occupational activity after the award of an old-age pension and could aggregate that pension with a gainful occupational activity.

Such a discontinuance in the payment of contributions, as easy as it may be for a worker carrying out his activities in Bulgaria, may be difficult, even impossible, for a worker exercising his freedom of movement or of establishment by carrying out an occupational activity as an employee or as a self-employed worker in another Member State. In particular, the administrative steps liable to flow from that discontinuance in another Member State could lead or even require a worker placed in a situation similar to that of Ms Somova to cease his occupational activity for an unpredictable period of time, longer than the minimum one day required by Bulgarian legislation, in order to be granted an old-age pension pursuant to that legislation.

That discontinuance could call into question the pursuit, by a self-employed person, of his occupational activity and make his professional circumstances precarious given that, following the discontinuance, he would have no guarantee of pursuing his employment or finding another.

It follows that a provision of national law, such as Article 94(1) of the KSO, is liable to prevent or dissuade people who are entitled to an old-age pension under Bulgarian legislation from carrying out an occupational activity in another Member State and therefore constitutes an obstacle to freedom of movement and in particular the freedom of establishment referred to in Article 49 TFEU.

Concerning first of all Article 94(2) of Regulation No 1408/71, it should be noted that it provides that all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before 1 October 1972 or before the date of application of the regulation in the territory of that Member State or in a part of the territory of that State are to be taken into consideration for the determination of the rights acquired under the provisions of that regulation.

Its unequivocal wording, in particular the use of the words ‘shall be taken into consideration’ in the English version, clearly shows the mandatory nature of that provision. That is also apparent from the other language versions of Regulation No 1408/71, which do not give any grounds to doubt the binding nature of that provision.

Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by the regulation depends solely on the objective situation of the worker concerned (judgment in van Delft and Others, EU:C:2010:610, paragraph 52 and the case-law cited).

Articles 45 and 46(2) of that regulation are also mandatory, since their wording does not confer any right to choose on an insured person who falls within the scope of those provisions (see, by analogy, judgment in van Delft and Others, EU:C:2010:610, paragraph 57). Consequently, the insured person cannot waive the application of those articles by not declaring, in the application for the award of the old-age pension to which

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he is entitled under the legislation of a Member State, the periods of insurance completed in another Member State.

That finding is supported by Article 84a(1) of Regulation No 1408/71, according to which the institutions and persons covered by that regulation have a duty of mutual information and cooperation to ensure the correct implementation of the regulation. In that regard, the persons concerned are to inform as soon as possible the institutions of the competent State and of the State of residence of any changes in their personal or family situation which affect their right to benefits under that regulation.

It follows, as Ireland argued in its written observations, that the applicant for social security benefits is not entitled to present a fragmentary narrative of his employment or insurance history so as to secure financial advantage.


9) Judgment of 18 December 2014, Case C-523/13, Larcher

Questions

Mr Larcher, who was born on 19 May 1946, is an Austrian citizen who resides in Austria. For more than 29 years, he was employed in Germany as a worker subject to compulsory social security. On 1 December 2000, he began working in Austria in full-time employment subject to compulsory social security. From 1 March 2004, he received, under an agreement establishing a pre-retirement scheme of part-time work for older employees, a reduction in his normal weekly working time, from 38.5 hours to 15.4 hours. Those 15.4 hours corresponded to 40% of the normal weekly time previously worked by Mr Larcher. The hours were spread over 4 days per week. On 30 September 2006, Mr Larcher stopped working under those pre-retirement arrangements. From 4 October 2006, he was engaged in only minor employment for the purposes of social security law.

During the period covered by the part-time work scheme for older employees, Mr Larcher’s employer paid him wage compensation amounting to half the difference between the gross monthly salary paid in respect of the reduced time worked and the gross monthly salary paid in respect of the time worked before that reduction, and continued to make contributions to the Austrian pension insurance scheme calculated on the basis of the social contributions base applicable before the reduction in normal working time. The Austrian Labour Market Office granted the employer an allowance for part-time work for older employees to offset in part the costs arising as a result of Mr Larcher’s participation in the scheme.

In February 2006, Mr Larcher applied to the Deutsche Rentenversicherung Bayern Süd for a retirement pension following participation in a part-time work scheme for older employees. His application was refused on the grounds that Mr Larcher had not participated in such a scheme under the provisions of German law. Upon the dismissal of his administrative appeal, Mr Larcher brought the matter before the German courts. His actions were dismissed both at first instance and on appeal.

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In those circumstances, the Bundessozialgericht decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does the principle of [equal treatment] laid down in Article 39(2) EC (now Article 45(2) TFEU) and Article 3(1) of Regulation [No 1408/71] preclude a provision [of the national law of a Member State] under which a pre-condition for entitlement to an old-age pension following part-time work for older employees is that the part-time work for older employees must have been pursued under the legislation of that Member State, and not of another Member State?

(2) If so, what requirements does the principle of equal treatment laid down in Article 39(2) EC … and Article 3(1) of Regulation No 1408/71 impose on the assimilation of part-time work for older employees completed under the legislation of the other Member State as a pre-condition for entitlement to a national old-age pension?

(a) Is a comparative examination of the conditions for part-time work for older employees needed?

(b) If so, is it sufficient that the part-time work for older employees in both Member States is essentially the same in content, in terms of its function and structure?

(c) Or must the conditions for part-time work for older employees in both Member States be identical in content?’

Appraisal

In the present case, it is common ground that the national legislation at issue in the main proceedings applies without regard to the nationality of the workers concerned or their place of residence and does not contain any clause relating to a compulsory stay in the national territory. Accordingly, that legislation does not, by itself, establish any overt difference in treatment between national workers and workers from another Member State.

It should be noted that, as the Advocate General pointed out in paragraphs 40 to 43 of his Opinion, in so far as the legislation at issue requires a worker who intends to apply for an old age pension following participation in a part-time work scheme for older employees to have participated in such a scheme exclusively under German law, it is liable to disadvantage workers who have exercised their right to freedom of movement.

First, that legislation places a migrant worker like Mr Larcher, who, having spent most of his working life in one Member State, is employed in another Member State in which he participates in a part-time work scheme for older employees, in a less favourable position, on that account, as compared with a worker who has spent his entire working life in one Member State and participates there in a pre-retirement scheme of that nature.

Second, as the Advocate General observed in point 45 of his Opinion, such legislation is likely to deter employers established in a Member State other than the Federal Republic of Germany from hiring, under their national part-time work scheme for older employees, a person who has spent much of his working life in Germany, if the rules governing the national scheme are different from those governing the German part-time work scheme for older employees.

In those circumstances, it is still necessary to determine whether such national legislation may nevertheless be justified. In that regard, according to the Court’s settled case-law, national measures of the kind at issue in the main proceedings may be allowed only if they pursue a legitimate objective in the public interest, they are appropriate to ensuring the

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attainment of that objective, and they do not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment in van den Booren, C-127/11, EU:C:2013:140, paragraph 45).

As the referring court pointed out, the legislation at issue is intended, first, to ensure that the transition to retirement, for employees who request this, is as smooth as possible and, second, to encourage the recruitment of apprentices or people who are unemployed.

Although the measures are indisputably necessary to ensure the attainment of the objectives pursued, it is nevertheless appropriate to hold that, since they require the participation in a part-time work scheme for older employees to have taken place exclusively in accordance with German law and preclude entitlement to an old-age pension following participation in such a scheme in the case of workers who engaged in part-time work for older employees under a scheme governed by the provisions in force in another Member State, they go beyond what is necessary to attain those objectives.

Although, as is clear from paragraphs 41 to 43 above, Article 3(1) of Regulation No 1408/71 precludes a Member State from systematically refusing to take into account, for the purposes of the granting of a retirement pension in its territory, participation in a part-time work scheme for older employees which took place under the laws of another Member State, that provision does not require the former Member State to recognise automatically participation in such a scheme as equivalent to participation in a part-time work scheme for older employees under its own national legislation.

It follows that the national authorities must undertake a comparative examination of the two part-time work schemes for older employees in question.

In so far as the primary purpose of that examination by the authorities of a Member State is to assess whether the conditions for the application of a part-time work scheme for older employees under the legislation of another Member State achieve the legitimate objectives pursued in the former Member State by such a scheme, those authorities cannot require those conditions to be identical.

As regards, more specifically, the assessment of the similarity of the different conditions, laid down in two separate Member States, for the application of their respective part-time work schemes for older employees, that assessment must be carried out on a case-by-case basis and minor differences with no significant impact on the achievement of the objectives cannot properly be relied upon as grounds for refusing to recognise that participation in such a scheme under the laws of another Member State is equivalent to participation in the national scheme.


10) Judgment of 22 January 2015, Cases C-401/13 and C-432/13, Balazs1

Questions

Mr and Mrs Balazs are Greek nationals who have the status of repatriated Greek political refugee. They reside in Thessaloniki (Greece).

1 See also the Order of 22 April 2015, Case C-668/13, Casa Judeţeană de Pensii Botoşani v. Evangeli Paraskevopoulou; the Order of 22 April 2015, Case C-598/13, Casa Judeţeană de Pensii Botoşani / Polixeni Guletsou and the Order of 22 April 2015, Case C 646/13, Casa Judeţeană de Pensii Brăila v. E.S.

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In 1948, Mr and Mrs Balazs, then 7 and 9 years old respectively, moved to Romania where they were accorded the status of political refugee. They contributed to the public social security system of that Member State for periods of 34 years, 7 months and 6 days and 28 years respectively. They were repatriated to Greece on 18 August 1990.

In 1998, Mr and Mrs Balazs applied to the Greek authorities for recognition of the periods of work completed in Romania. By decisions of 21 September 1998, the Greek authorities found that the periods of work completed by Mr and Mrs Balazs in Romania corresponded respectively to 9 382 and 8 351 days of social insurance. In respect of those periods, the Greek authorities decided to recognise only 4 500 days for pension calculation purposes.

On 11 October and 27 November 2007, Mrs Balazs and Mr Balazs, respectively, applied to the Casa Judeţeană de Pensii for the grant of old-age pensions on the basis of Regulations No 1408/71 and No 574/72.

Their applications were refused by decisions of 5 October 2011. In those decisions the Casa Judeţeană de Pensii stated that, since Mr and Mrs Balazs were considered by the Greek authorities to be repatriated Greek political refugees, the Romanian authorities, by virtue of Article 5 of the bilateral agreement, were under no obligation to grant them pensions.

In those circumstances, the Curtea de Appel Cluj decided to stay the proceedings and to refer to the Court for a preliminary ruling the following question, which is worded in the same terms in the orders for reference in Cases C-401/13 and C-432/13:

‘Is Article 7(2)(c) of Regulation No 1408/71 to be interpreted as including within its scope a bilateral agreement which two Member States entered into before the date on which that regulation became applicable and by which the two States agreed to the termination of obligations relating to social security benefits owed by one State to nationals of the other State who had been political refugees in the territory of the first State and who have been repatriated to the territory of the second State, in exchange for a payment by the first State of a lump sum for the payment of pensions and to cover periods during which social security contributions were paid in the first Member State?’

Appraisal

First of all, it is to be noted that the Casa Judeţeană de Pensii submits that Regulation No 1408/71 is not applicable in the main proceedings because of the bilateral agreement, in particular Article 5 thereof under which any obligations owed by Romania in relation to Greek political refugees came to an end as Romania performed its obligation to pay USD 15 million to the Hellenic Republic. It should therefore be established whether the circumstances at issue in the main proceedings fall within the scope of Regulation No 1408/71.

In order to enable Regulation No 1408/71 to apply to the future effects of situations arising during the period of validity of the old law, Article 94 lays down in particular, in paragraph 2, the obligation to take into consideration, for the purposes of determining rights to benefit, all periods of insurance, employment or residence completed under the legislation of any Member State before 1 October 1972 or before the date of the regulation’s application in the territory of that Member State (see judgment in Duchon, EU:C:2002:234, paragraph 23).

Since Regulation No 1408/71 entered into force in relation to Romania upon its accession to the European Union, that is to say, on 1 January 2007, that regulation is applicable ratione temporis to a situation such as that of Mr and Mrs Balazs, who were therefore entitled to rely on it from that date.

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Contrary to the submissions of the Casa Judeţeană de Pensii, the fact that the bilateral agreement provides that Romania is no longer to have obligations regarding the social security rights of repatriated Greek political refugees once the sum of USD 15 million has been paid is irrelevant in this regard.

Indeed, it is clear from Article 6 of Regulation No 1408/71 that the latter, as regards persons and matters which it covers, and subject to certain provisos, replaces the provisions of any social security convention which binds two or more Member States. That replacement is mandatory in nature and does not allow of exceptions save for the cases set out in the regulation (see, by analogy, judgments in Walder, 82/72, EU:C:1973:62, paragraphs 6 and 7; Thévenon, C-475/93, EU:C:1995:371, paragraph 15; and Rönfeldt, C-227/89, EU:C:1991:52, paragraph 22).

The exceptions provided for by Regulation No 1408/71 include the exception in Article 7(2)(c), according to which the provisions of the social security conventions mentioned in Annex III to the regulation continue to apply notwithstanding Article 6 of the regulation (judgments in Habelt and Others, C-396/05, EU:C:2007:810, paragraph 87, and Wencel, C-589/10, EU:C:2013:303, paragraph 35), provided that those conventions are more favourable to the beneficiaries or they arise from specific historical circumstances and their effect is limited in time.

In the present instance, it is not in dispute that the bilateral agreement is not listed in Annex III to Regulation No 1408/71. It follows that, in a situation such as that at issue in the main proceedings, Regulation No 1408/71, in accordance with Article 6(a) thereof, in principle replaced that agreement.

The national court and the Romanian Government rely, however, on the judgment in Rönfeldt (EU:C:1991:52) in order to submit that, notwithstanding the terms in which Articles 6 and 7(2)(c) of Regulation No 1408/71 are couched, the bilateral agreement continues to apply.

First, as has been noted in paragraph 34 of the present judgment, the principle of replacement laid down in Regulation No 1408/71 is mandatory in nature and does not, in principle, allow of exceptions.

Second, the principles established in the judgment in Rönfeldt (EU:C:1991:52) are derived from the notion that the person concerned was entitled to entertain a legitimate expectation that he would be able to benefit from the provisions of a bilateral convention which alone was applicable to him on the date when he decided to move to another Member State (see, to this effect, judgment in Kaske, C-277/99, EU:C:2002:74, paragraph 27).

Accordingly, in circumstances such as those at issue in the main proceedings, an essential feature of which is that the persons concerned left Romania for Greece in 1990, that is to say, six years before the bilateral agreement was concluded, those persons could not entertain a legitimate expectation that they would be able to benefit from the provisions of the bilateral agreement as it had not yet been concluded on the date of their repatriation to Greece.

In any event, in the main proceedings Mr and Mrs Balazs do not seek to benefit from the bilateral agreement. On the contrary, they wish Regulation No 1408/71 to be applied to them. In those circumstances, the Romanian Government cannot rely on the judgment in Rönfeldt (EU:C:1991:52) in order to establish that the bilateral agreement continues to apply to their situation.

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11) Judgment of 12 February 2015, Case C-114/13, Bouman

Questions

The request has been made in proceedings between Mrs Bouman and the Rijksdienst voor Pensioenen (National Pensions Office, ‘the Rijksdienst’) concerning the review, in 2009, of the Rijksdienst’s decision dated 10 July 1969 granting Mrs Bouman a survivor’s pension, and the Rijksdienst’s claim for recovery of benefits wrongly paid.

In those circumstances, the arbeidshof te Antwerpen decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the part of the [benefit under the AOW] which is paid to a Netherlands resident and which is based on an insurance period during which that Netherlands resident, simply by making an application, may refrain from joining the Netherlands scheme and thus from paying the premium, and in fact did so for a limited period, to be regarded as a benefit which is awarded on the basis of a voluntary or optional continued insurance within the meaning of Article 46a(3)(c) of Regulation No 1408/71, so that no account may be taken of it when applying the provision against overlapping as laid down in Article 52(1)(1) of [the Royal Decree of 21 December 1967 laying down general rules concerning retirement and survivors’ pensions for employed persons]?’

Appraisal

As regards the question whether the institutions of another Member State are bound by such a statement drawn up in accordance with Article 47 of Regulation No 574/72, it should be recalled that the Court has held that a certified statement issued by the competent institution of a Member State specifying the periods of insurance or employment completed as an employed person under the legislation of that Member State does not constitute irrefutable proof for the competent institution of another Member State, nor for the courts of that Member State (see, to that effect, judgments in Knoch, EU:C:1992:303, paragraph 54, and Adanez-Vega, C-372/02, EU:C:2004:705, paragraphs 36 and 48).

In this connection, it should be stated that although limiting the review by the court of the validity of such an administrative document as regards the certification of the matters on the basis of which it was issued is justified for reasons of legal certainty (see judgment in Herbosch Kiere, EU:C:2006:69, paragraph 32), such an approach cannot automatically be applicable to a statement such as that drawn up by the SVB in the case in the main proceedings. When the authorities of the Member State in question have to determine the rights of a person concerned resulting from the legislation of that Member State, they must also have the possibility of reviewing all the relevant particulars in the documents drawn up by the authority of the Member State of origin that issued the statement.

That is in fact the situation in the case in the main proceedings, since pensioners are subject to a special scheme laid down in Chapter 3 of Title III of Regulation No 1408/71, entitled ‘Old age and death (pensions)’, of which Article 46a forms part. Thus, Article 46a(3)(c) of Regulation No 1408/71 excludes from the application of rules against

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overlapping — where these are provided for in the legislation of a Member State — voluntary insurance or continued optional insurance.

As the Advocate General observed in point 42 of his Opinion, these provisions enable a person who has moved within the European Union and has chosen to pay contributions to a voluntary insurance or optional continued insurance scheme, in order to build up an old age pension in another Member State, to preserve the rights resulting therefrom. Provision for this thus takes the form of two different but complementary measures. In other words, in that situation, the EU legislature has, first, relaxed the principle that the legislation of only one Member State is to apply in a given situation and, second, made it possible for benefits obtained in a Member State by a person on the basis of voluntary insurance or optional continued insurance to not be subject to rules against overlapping that would reduce the allowance that person receives from another Member State.

That finding is supported by the objective pursued by Regulation No 1408/71 of ensuring, as stated in the second and fourth recitals in the preamble, free movement of employed and self-employed persons within the European Union, while respecting the special characteristics of national social security legislations. To that end, as is clear from the fifth, sixth and tenth recitals in the preamble thereto, that regulation upholds the principle of equality of treatment of workers under the various measures of national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right of free movement (see judgment in Tomaszewska, C-440/09, EU:C:2011:114, paragraph 28 and the case-law cited).

Therefore, the provisions of Regulation No 1408/71 must be interpreted in the light of Article 48 TFEU which aims to facilitate freedom of movement for workers and entails, in particular, that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the FEU Treaty (see, inter alia, judgments in Bosmann, C-352/06, EU:C:2008:290, paragraph 29, and Hudzinski and Wawrzyniak, C-611/10 and C-612/10, EU:C:2012:339, paragraph 46).

Likewise, the first recital in the preamble to Regulation No 1408/71 states that the provisions which that regulation contains for coordination of national social security legislations fall within the framework of freedom of movement of persons and should contribute towards the improvement of their standard of living (see judgments in Bosmann, EU:C:2008:290, paragraph 30, and Hudzinski and Wawrzyniak, EU:C:2012:339, paragraph 47).

As the Advocate General observed at point 50 of his Opinion, Article 46a(3)(c) of Regulation No 1408/71 must, consequently, be interpreted in such a way as to exclude the possibility of the worker being deprived, by the effect of national rules against overlapping, of the benefit of insurance periods completed voluntarily under the legislation of another Member State.

Therefore, having regard to the wording and context of Article 46a(3)(c) of Regulation No 1408/71 and the objective pursued by it, the concept of ‘voluntary insurance or continued optional insurance’ should be interpreted in a broad manner in order not to deprive the person concerned of any period of voluntary insurance or continued optional insurance completed under the legislation of another Member State.

Contrary to the contentions of the Belgian Government in its observations, the mere fact that Mrs Bouman’s affiliation to the Netherlands general scheme was automatic, although

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exemption was available at her request, does not necessarily mean that it cannot be regarded as voluntary insurance or optional continued insurance.

In this connection, it should be pointed out, as the Advocate General observed at point 58 of his Opinion, that the voluntary or optional nature of an insurance such as that at issue in the main proceedings may stem both from the fact that the person concerned has to request affiliation to the insurance scheme or the continuation of the insurance, and from the fact that he has the right to obtain an exemption from affiliation. In both of those situations, there is a choice on the part of the insured person and they show that, if maintained, such affiliation remains optional.

Furthermore, it is apparent from the order for reference that the contributions paid by Mrs Bouman in the period during which she had the right to request an exemption from affiliation on the basis of Article 22 of the Dutch Decree gave her an additional social protection by also affecting the amount of her AOW pension.

Having regard to all the foregoing considerations, the answer to the question referred is that Article 46a(3)(c) of Regulation No 1408/71 must be interpreted as encompassing the part of the benefit resulting from a period of insurance during which the person concerned had the right to obtain an exemption from affiliation to the compulsory insurance scheme, in a situation where such affiliation, during the period in question, affects the extent of the social security benefit.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=162243&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=104797

12) Judgment of 4 June 2015, Case C-543/13, Fischer-Lintjens

Questions

Ms Fischer-Lintjens lived in the Netherlands from 1 December 1934, the date of her birth, to 1 September 1970. She then lived in Germany until 1 May 2006, when she returned to the Netherlands, where she has lived since then.

From October 2004 Ms Fischer-Lintjens received a widow’s pension from the competent German institution. After leaving Germany to settle in the Netherlands in 2006, she registered by means of an E 121 form with the Netherlands health care insurer CZ, and from 1 June 2006 was able, under Article 28 of Regulation No 1408/71, to receive benefits in kind in the Netherlands with the cost borne by the competent German institution. She paid contributions in Germany for her health care insurance.

By decision of 2 November 2010, the CVZ informed Ms Fischer-Lintjens that she was required to be insured under the AWBZ and the Zvw and should therefore pay contributions in the Netherlands, as she was no longer in any of the situations referred to in Article 21(1) of KB 746 and had consequently been subject to an insurance obligation from June 2006. The CVZ thereupon withdrew her certificate of non-insurance (‘the withdrawal decision’) and CZ cancelled her health care insurance policy. The withdrawal and the cancellation both had retroactive effect from 1 June 2006.

The German health care insurance institution then refunded contributions of over EUR 5 000 which Ms Fischer-Lintjens had paid in Germany from 1 June 2006.

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CZ subsequently claimed from Ms Fischer-Lintjens the health care costs of more than EUR 11 000 which it had reimbursed to the German institution. According to the CVZ, in accordance with Article 5(5) of the Zvw, health care insurance can take effect retroactively only if it is concluded within four months from the coming into being of the insurance obligation. Ms Fischer-Lintjens therefore had to pay the health care costs reimbursed to the German institution for the period during which she had not been covered by health care insurance, namely between June 2006 and 1 July 2010, from which latter date she had Netherlands health care insurance.

In those circumstances the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Must the term “payable”, as used in Article 27 et seq. of Regulation (EEC) No 1408/71, be interpreted as meaning that the decisive factor for the purpose of determining the point in time from which a pension is payable is the date of the decision to make an award, after which the pension is paid, or the commencement date of the pension awarded with retroactive effect?

2. If the term “payable” refers to the commencement date of the pension awarded with retroactive effect:

Can this be reconciled with the fact that the person entitled to receive the pension who comes under Article 27 of Regulation No 1408/71 cannot, under Netherlands legislation, take out health care insurance with the same retroactive effect?’

Appraisal

It follows, as the Advocate General observes in point 41 of his Opinion, that one of the objectives of the conflict rules laid down by Regulation No 1408/71 is to ensure that all insured persons falling within its scope enjoy continuous cover without that continuity being affected by discretionary choices of individuals or of the competent authorities of the Member States.

The system introduced by those articles thus establishes a connection between the competence to provide pensions and the obligation to bear the costs of benefits in kind, that obligation consequently being incidental to an actual competence in respect of pensions. The cost of benefits in kind cannot therefore be assigned to the institution of a Member State which has only a hypothetical competence in respect of pensions. It follows that Article 27 of Regulation No 1408/71, like Article 28 of the regulation, when it refers to a pension payable, refers to a pension which is actually paid to the person concerned (see, to that effect, judgment in Rundgren, C-389/99, EU:C:2001:264, paragraph 47).

Furthermore, as the German Government observed in its written observations, any other interpretation of the term ‘payable’ within the meaning of Article 27 would make the temporal applicability of the competence of a Member State in respect of benefits due under that regulation depend on the speed with which national administrations deal with requests for pensions, which would run counter to one of the objectives of that regulation, namely, as the Court has found in paragraph 40 above, to ensure that all insured persons falling within its scope enjoy continuous cover.

It follows, as the Advocate General observes in points 55 and 56 of his Opinion, that a restriction laid down by national legislation such as that at issue in the main proceedings, the result of which is that persons in Ms Fischer-Lintjens’s situation are unable to comply with their obligations under Article 27 of Regulation No 1408/71 and section R, point 1(a) and (b), of Annex VI to that regulation, interferes with the effectiveness of the system of conflict rules established by that regulation and with the obligations of insured persons

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under the regulation. In particular, the effectiveness of the system, which is mandatory both for the Member States and for the persons concerned, cannot be guaranteed if those States, through their national legislation, are able to make it impossible for persons such as Ms Fischer-Lintjens to comply fully with their obligations under Regulation No 1408/71.

It must be noted, however, that under Article 84a(2) of Regulation No 1408/71, a failure to respect the obligation of information referred to in the third subparagraph of Article 84a(1) may result only in the application of proportionate measures in accordance with national law, which must be equivalent to those applicable to similar situations under domestic law and must not make it impossible or excessively difficult in practice for claimants to exercise the rights conferred on them by that regulation.

That cannot be the case if the application of national legislation has the effect of depriving a person in Ms Fischer-Lintjens’s situation of all social security cover for a certain period without all the relevant circumstances, in particular those relating to personal situation, such as age, state of health, and absence from the Netherlands for an extended period, being taken into account. Moreover, the fact that Ms Fischer-Lintjens paid contributions for health care insurance in Germany from November 2007 to October 2010 is of particular importance.

In the light of all the above considerations, the answer to the questions referred for a preliminary ruling is that Article 27 of Regulation No 1408/71, in conjunction with section R, point 1(a) and (b), of Annex VI to that regulation, must be interpreted as meaning that the pension of a person entitled must, in circumstances such as those at issue in the main proceedings, be regarded as payable from the commencement of the period in respect of which that pension was actually paid to that person, whatever the date on which the entitlement to that pension was formally confirmed, including, if appropriate, where the period commences before the date of the decision awarding the pension. Articles 27 and 84a of Regulation No 1408/71, in conjunction with section R, point 1(a) and (b) of Annex VI to that regulation, must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, legislation of a Member State which does not allow the recipient of a pension awarded by that Member State with retroactive effect of one year to become affiliated to compulsory health care insurance with the same retroactive effect, and which has the effect of depriving that person of all social security cover without all the relevant circumstances, in particular those relating to that person’s personal situation, being taken into account.


13) Judgment of 16 September 2015, Case C-361/13, Commission/Slovakia

The Action

By its application, the European Commission asks the Court to declare that, by refusing to grant the Christmas bonus provided for by Law No 592/2006 granting a Christmas bonus to certain beneficiaries of pensions and supplementing certain laws, as last amended (‘Law No 592/2006’) to beneficiaries residing in a Member State other than the Slovak Republic, the Slovak Republic has failed to fulfil its obligations under Articles 45 TFEU and 48 TFEU and Article 7 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1 and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EC)

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No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43) (‘Regulation No 883/2004’).

Appraisal

In the present case, it must be held that the Christmas bonus is not paid exclusively to recipients of an old-age pension, an early old-age pension or a military and police retirement pension, but the group of beneficiaries also includes recipients of other types of pension, in particular, an invalidity pension, a social pension, a widow/widower’s pension or an orphan’s pension.

The Commission has not given the reasons why, given the group of persons covered, which is defined so broadly, it considers that the Christmas bonus must be classified as an ‘old-age pension’ within the meaning of Article 3(1)(d) of Regulation No 883/2004.

First, as the Slovak Republic argues, the financial supplement, paid in the form of the Christmas bonus, is intended to alleviate the difficult social situation of recipients on low incomes in a period during which they may personally experience the economic and social burden of their low income. Second, the true purpose of the Christmas bonus also derives from the rules laid down in Article 1(5) of Law No 592/2006 relating to the receipt of that bonus where the recipient receives several pensions. It is clear from that provision, in essence, that the recipients of a number of legal pensions receive only one Christmas bonus if the total amount of the pensions does not exceed the threshold laid down.

Therefore, it must be held that the Commission has failed to establish that the constituent elements of the Christmas bonus support its classification as an ‘old-age benefit’ within the meaning of Article 3(1)(d) of Regulation No 883/2004.

The action brought by the Commission must accordingly be dismissed.


IV- Unemployment benefits

14) Judgment of 5 February 2015, Case C-655/13, Mertens

Questions

From 1 January 2003 until 28 February 2009, Ms Mertens was employed on a full-time basis by Saueressig GmbH (‘Saueressig’) in Vreden (Germany).

Since 1 March 2009, Ms Mertens has been employed on a part-time basis, namely for 10 hours per week, by ATG Service GmbH (‘ATG’) in Ahaus (Germany).

For the period between 2003 and 2009, Ms Mertens resided in Enschede (Netherlands).

Ms Mertens applied to the Uwv for a grant of benefit under the Netherlands Law on unemployment (Werkloosheidswet). The Uwv refused that application as it took the view that Ms Mertens had to be classified as a frontier worker pursuant to Regulation No 1408/71 and that, in so far as she was partially unemployed, she had to submit an application to receive unemployment benefit in the Member State of the place of her work, that is to say, Germany. The Netherlands court of first instance also took the view that Ms Mertens was subject to German legislation.

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In those circumstances, the Centrale Raad van Beroep decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Should Article 71(1)(a)(i) of Regulation No 1408/71 be interpreted as precluding a frontier worker, who, immediately after a full-time employment relationship with an employer in a Member State, is employed for fewer hours by another employer in the same Member State, from being classified as a partially unemployed frontier worker?’

Appraisal

Thus, under Article 71(1)(a)(ii) of Regulation No 1408/71, frontier workers who are wholly unemployed are subject to the legislation of the Member State in whose territory they reside. The Court has taken the view that that provision is based on the implicit assumption that such a worker will find in that State the conditions which are most favourable to the search for new employment (see, to that effect, judgments in Miethe, EU:C:1986:243, paragraph 17, and in Jeltes and Others, EU:C:2013:224, paragraph 21).

It follows that Article 71(1)(a)(i) of Regulation No 1408/71, which provides that a frontier worker who is partially or intermittently unemployed in the undertaking which employs him is subject to the legislation of the competent Member State, must be understood as being based also on the implicit assumption that it is in that Member State that such a worker benefits from the conditions which are most favourable to the search for new employment.

Likewise, the Court has also held that the protection of workers, which is the aim pursued by Article 71 of Regulation No 1408/71, would not be attained if the worker concerned, who, in a Member State other than the State of residence, remains employed by the same undertaking, but on a part-time basis, while remaining available for work on a full-time basis, were obliged to apply to an institution of the Member State of his place of residence for assistance in finding work additional to that which he already carries out. The fact that he has passed from full-time employment to part-time employment by virtue of a new contract is in this respect irrelevant (see, to that effect, judgment in de Laat, EU:C:2001:165, paragraph 34).

For that reason, it is only when a worker no longer has any link with the competent Member State and is wholly unemployed that he must apply to the institution of the Member State of his place of residence for assistance in finding employment (see, to that effect, judgment in de Laat, EU:C:2001:165, paragraph 36).

Accordingly, in the case in the main proceedings, no relevance attaches to the fact that the undertaking that employed Ms Mertens under a full-time contract is not the one that subsequently employed her under a part-time contract. Any interpretation of Article 71(1)(a)(i) of Regulation No 1408/71 which would make the application of that provision subject to the requirement that the undertaking in which the worker holds part-time employment must be the same as that in which the worker previously held full-time employment would reduce the scope of that provision in a manner that would undermine its effectiveness.

Similarly, no relevance attaches to the fact that the employment contract at issue in the main proceedings provides for a working week of 10 hours, as the Court has already held that there is nothing in Article 1(a) or Article 2(1) of Regulation No 1408/71 which would allow certain categories of persons to be excluded from the scope of that regulation on the basis of the amount of time that they devote to their activities (see, by analogy, judgment in Kits van Heijningen, C-2/89, EU:C:1990:183, paragraph 10).

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This interpretation of Article 71(1)(a)(i) of Regulation No 1408/71 is thus the only one which is capable of ensuring that frontier workers are regarded as being partially employed in the Member State in which they benefit from the conditions which are most favourable to the search for full-time employment.

Having regard to all of the foregoing considerations, the answer to the question referred is that Article 71(1)(a)(i) of Regulation No 1408/71 must be interpreted as meaning that a frontier worker who, immediately after the end of a full-time employment relationship with an employer in a Member State, is employed on a part-time basis by another employer in that same Member State has the status of a partially unemployed frontier worker within the meaning of that provision.


V- Family benefits

15) Judgment of 6 November 2014, Case C-4/13, Fassbender-Firman

Questions

Ms Fassbender-Firman, a German national, and her husband, a Belgian national, have one son, born in 1995. The family, which had been living in Germany, moved to Belgium in June 2006 and is now resident in that Member State. Ms Fassbender-Firman is in employment in Germany in respect of which social security contributions are payable. Her husband, previously unemployed, has since November 2006 worked for a Belgian temporary employment agency.

Ms Fassbender-Firman has always received family allowances in Germany for her child. Her husband has not applied for payment of family allowances in Belgium and has therefore not received any either.

When the Familienkasse learnt that the family had moved to Belgium it withdrew the award of family allowances to Ms Fassbender-Firman with effect from July 2006 and demanded the repayment of the family allowances paid between July 2006 and March 2007 (‘the period at issue’).

It was in those circumstances that the Bundesfinanzhof decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 76(2) of Regulation No 1408/71 be interpreted to the effect that the competent institution of the Member State of employment enjoys discretion in applying Article 76(1) of Regulation No 1408/71 if no application for benefits has been made in the Member State of residence of the members of the family?

(2) If the first question is answered in the affirmative, on the basis of what discretionary considerations may the institution competent for family benefits in the Member State of employment apply Article 76(1) of Regulation No 1408/71 as if benefits had been granted in the Member State of residence of the members of the family?

(3) If the first question is answered in the affirmative, to what extent is the discretionary decision by the competent institution subject to judicial review?’

Appraisal

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According to the rule against overlapping laid down in Article 76(1) of Regulation No 1408/71, where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are provided for by the legislation of the Member State of residence, entitlement to the family benefits due, pursuant to Article 73 of Regulation No 1408/71, in accordance with the legislation of the Member State where the migrant worker is employed, is to be suspended up to the amount provided for in the legislation of the Member State of residence.

In the case in the main proceedings, in accordance with that rule, entitlement to family allowances payable to Ms Fassbender-Firman under German law is thus, in principle, to be suspended up to the amount of family allowances provided for in the Belgian legislation.

However, it appears from the order for reference that Ms Fassbender-Firman’s husband had neither applied for nor received family allowances in Belgium.

Article 76(2) of Regulation No 1408/71 provides that if an application for benefits is not made in the Member State in whose territory the members of the family are residing, the competent institution of the Member State of employment may apply the provisions of paragraph 1 of that article as if benefits were granted in the Member State of residence.

The Court has held that the purpose of the latter provision is to enable the Member State of employment to suspend the entitlement to family benefits, even if no application for the payment of benefits has been made in the Member State of residence and, consequently, no payment has been made by that Member State (judgments in Schwemmer, EU:C:2010:605, paragraph 56 and Pérez García and Others, C-225/10, EU:C:2011:678, paragraph 49).

It is clear from the wording of Article 76(2) of Regulation No 1408/71 that that regulation does not require the suspension of the entitlement to the family benefits payable in accordance with the legislation of Member State of employment up to the amount provided for in the legislation of the Member State of residence, but that it authorises such suspension.

As pointed out by the Advocate General in points 48 and 49 of his Opinion, Article 76(2) of Regulation No 1408/71 makes it permissible, even when there is no actual overlapping of family benefits, for a migrant worker or the members of his family to be deprived of family benefits awarded under the legislation of a Member State, with the consequence that he or they could receive an amount of family benefits less than that provided for by the legislation both of the Member State of employment and of the Member State of residence of the members of the family. Given its effects, such a provision must be interpreted strictly.

It is a requirement of the principles of legal certainty and of transparency that migrant workers and their family members should have the benefit of a clear precise legal situation enabling them to ascertain not only the full extent of their rights but also, as the case may be, the limitations of those rights (see, by analogy, judgment in Altmark Trans and Regierungspräsidium Magdeburg, C-280/00, EU:C:2003:415, paragraphs 58 and 59).

It must accordingly be held that Article 76(2) of Regulation No 1408/71 authorises the Member State of employment to make provision in its legislation for suspension by the competent institution of the entitlement to family benefits when no application has been made for benefits in the Member State of residence. In such circumstances, the institution does not have discretion as regards the application, under Article 76(2) of that regulation, of the rule against overlapping laid down in Article 76(1) of Regulation No 1408/71, but is bound to apply the latter rule if such application is provided for by the legislation of the

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Member State of employment and if the conditions laid down by that legislation for that application are met.


VI- Equal treatment

16) Judgment of 11 November 2014, Case C-333/13, Dano

Questions

Ms Dano, who was born in 1989, and her son Florin, who was born on 2 July 2009 in Sarrbrücken (Germany), are both Romanian nationals. According to the findings of the referring court, Ms Dano last entered Germany on 10 November 2010.

On 19 July 2011, the city of Leipzig issued Ms Dano with a residence certificate of unlimited duration (‘unbefristete Freizügigkeitsbescheinigung’) for EU nationals, establishing 27 June 2011 as the date of entry into German territory. On 28 January 2013 it also issued her with a duplicate certificate.

Since their arrival in Leipzig, Ms Dano and her son have been living in the apartment of Ms Dano’s sister, who provides for them materially.

40 The first application that Ms Dano and her son submitted for the grant of benefits by way of basic provision under SGB II was refused by Jobcenter Leipzig by decision of 28 September 2011, on the basis of point 2 of the second sentence of Paragraph 7(1) of SGB II. Since that decision was not contested, it became final.

In those circumstances, the Sozialgericht Leipzig decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do persons who do not wish to claim payment of any benefits of social security law or family benefits under Article 3(1) of Regulation No 883/2004 but rather special non-contributory benefits under Article 3(3) and Article 70 of the regulation fall within the scope ratione personae of Article 4 of the regulation?

(2) If Question 1 is answered in the affirmative: are the Member States precluded by Article 4 of Regulation No 883/2004, in order to prevent an unreasonable recourse to non-contributory social security benefits under Article 70 of the regulation which guarantee a level of subsistence, from excluding in full or in part Union citizens in need from accessing those benefits, which are provided to their own nationals who are in the same situation?

(3) If Question 1 or Question 2 is answered in the negative: are the Member States precluded by (a) Article 18 TFEU and/or (b) [point (a) of the first subparagraph of Article 20(2)] TFEU in conjunction with the [second subparagraph] of Article 20(2) TFEU and Article 24(2) of Directive 2004/38/EC, in order to prevent an unreasonable recourse to non-contributory social security benefits under Article 70 of Regulation No 883/2004 which guarantee a level of subsistence, from excluding in full or in part Union citizens in need from accessing those benefits, which are provided to their own nationals who are in the same situation?

(4) If, according to the answers to the abovementioned questions, the partial exclusion of benefits which guarantee a level of subsistence complies with EU law: may the provision of non-contributory benefits which guarantee a level of subsistence for Union citizens,

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outside acute emergencies, be limited to the provision of the necessary funds for return to the home State or do Articles 1, 20 and 51 of the Charter … require more extensive payments which enable permanent residence?’

Appraisal

A preliminary point to note is that the referring court has classified the benefits at issue in the main proceedings as ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004.

Whilst Article 70(3) of Regulation No 883/2004 therefore, by way of exception, renders certain of the regulation’s provisions inapplicable to special non-contributory cash benefits, Article 4 is not among those provisions.

Thus, the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in Article 24 of Directive 2004/38 in relation to Union citizens who, like the applicants in the main proceedings, exercise their right to move and reside within the territory of the Member States. That principle is also given more specific expression in Article 4 of Regulation No 883/2004 in relation to Union citizens, such as the applicants in the main proceedings, who invoke in the host Member State the benefits referred to in Article 70(2) of the regulation.

That having been said, it must be pointed out that, whilst Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 reiterate the prohibition of discrimination on grounds of nationality, Article 24(2) of that directive contains a derogation from the principle of non-discrimination.

Under Article 24(2) of Directive 2004/38, the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the period of seeking employment, referred to in Article 14(4)(b) of the directive, that extends beyond that first period, nor is it obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies to persons other than workers, self-employed persons, persons who retain such status and members of their families.

It is apparent from the documents before the Court that Ms Dano has been residing in Germany for more than three months, that she is not seeking employment and that she did not enter Germany in order to work. She therefore does not fall within the scope ratione personae of Article 24(2) of Directive 2004/38.

It follows that, so far as concerns access to social benefits, such as those at issue in the main proceedings, a Union citizen can claim equal treatment with nationals of the host Member State only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38.

First, in the case of periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities for the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State (judgment in Ziolkowski and Szeja, C-424/10 and C-425/10, EU:C:2011:866, paragraph 39). In accordance with Article 24(2) of Directive 2004/38, the host Member State is thus not obliged to confer entitlement to social benefits on a national of another Member State or his family members during that period.

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It should be added that, as regards the condition requiring possession of sufficient resources, Directive 2004/38 distinguishes between (i) persons who are working and (ii) those who are not. Under Article 7(1)(a) of Directive 2004/38, the first group of Union citizens in the host Member State have the right of residence without having to fulfil any other condition. On the other hand, persons who are economically inactive are required by Article 7(1)(b) of the directive to meet the condition that they have sufficient resources of their own.

As the Advocate General has observed in points 93 and 96 of his Opinion, any unequal treatment between Union citizens who have made use of their freedom of movement and residence and nationals of the host Member State with regard to the grant of social benefits is an inevitable consequence of Directive 2004/38. Such potential unequal treatment is founded on the link established by the Union legislature in Article 7 of the directive between the requirement to have sufficient resources as a condition for residence and the concern not to create a burden on the social assistance systems of the Member States.

A Member State must therefore have the possibility, pursuant to Article 7 of Directive 2004/38, of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.

Therefore, the financial situation of each person concerned should be examined specifically, without taking account of the social benefits claimed, in order to determine whether he meets the condition of having sufficient resources to qualify for a right of residence under Article 7(1)(b) of Directive 2004/38.


17) Judgment of 15 September 2015, Case C-67/14, Alimanovic

Questions

The request has been made in proceedings between, on one hand, Jobcenter Berlin Neukölln (the Employment Centre, Berlin Neukölln) (‘the Job Centre’) and, on the other hand, Nazifa Alimanovic and her three children, Sonita, Valentina and Valentino Alimanovic (together ‘the Alimanovic family’), concerning the withdrawal by that agency of benefits by the way of basic provision (‘Grundsicherung’) provided for under German law.

In those circumstances, the Bundessozialgericht (Federal Social Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the principle of equal treatment under Article 4 of Regulation [No 883/2004] — with the exception of the clause in Article 70(4) [thereof] excluding the provision of benefits outside the Member State of residence — apply also to the special non-contributory cash benefits referred to in Article 70(1) and (2) of Regulation [No 883/2004]?

(2) If the first question is answered in the affirmative: may the principle of equal treatment laid down in Article 4 of Regulation [No 883/2004] be limited by provisions of national legislation implementing Article 24(2) of Directive 2004/38 that do not in any

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circumstances allow access to those benefits in the case in which the right of residence of the citizen of the Union in another Member State arises solely out of the search for employment and, if so, to what extent may that principle be so limited?

(3) Does Article 45(2) TFEU, [read] in conjunction with Article 18 TFEU, preclude a provision of national law that does not in any circumstances allow the grant of a social benefit, intended to ensure subsistence and to facilitate access to the labour market, to citizens of the Union who, as job-seekers, may invoke the exercise of their right of free movement when they enjoy a right of residence arising solely out of the search for employment, irrespective of a link to the host Member State?’

Appraisal

Since the issue of whether the benefits at issue constitute ‘social assistance’ or measures intended to facilitate access to the labour market is determinative for the purposes of identifying the EU rule under which that compatibility falls to be assessed, it is necessary to classify them.

However, in the present case it must be found that, as the Advocate General observed in point 72 of his Opinion, the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity.

It follows from those considerations that those benefits cannot be characterised as benefits of a financial nature which are intended to facilitate access to the labour market of a Member State (see, to that effect, judgment in Vatsouras and Koupatantze, C-22/08 and C-23/08, EU:C:2009:344, paragraph 45) but, as the Advocate General observed in points 66 to 71 of his Opinion, must be regarded as ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.

It must first be recalled in this connection that, so far as concerns access to social assistance, such as that at issue in the main proceedings, a Union citizen can claim equal treatment with nationals of the host Member State under Article 24(1) of Directive 2004/38 only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38 (judgment in Dano, C-333/13, EU:C:2014:2358, paragraph 69).

In this connection, Article 7(3)(c) of Directive 2004/38 provides that if the worker is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office, he retains the status of worker for no less than six months. During that period, the Union citizen concerned retains his right of residence in the host Member State under Article 7 of Directive 2004/38 and may, consequently, rely on the principle of equal treatment, laid down in Article 24(1) of that directive.

Although, according to the referring court, Ms Alimanovic and her daughter Sonita may rely on that provision to establish a right of residence even after the expiry of the period referred to in Article 7(3)(c) of Directive 2004/38, for a period, covered by Article 14(4)(b) thereof, which entitles them to equal treatment with the nationals of the host Member State so far as access to social assistance is concerned, it must nevertheless be observed that, in such a case, the host Member State may rely on the derogation in Article 24(2) of that directive in order not to grant that citizen the social assistance sought.

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It follows from the express reference in Article 24(2) of Directive 2004/38 to Article 14(4)(b) thereof that the host Member State may refuse to grant any social assistance to a Union citizen whose right of residence is based solely on that latter provision.

By enabling those concerned to know, without any ambiguity, what their rights and obligations are, the criterion referred to both in Paragraph 7(1) of Book II, read in conjunction with Paragraph 2(3) of the Law on freedom of movement, and in Article 7(3)(c) of Directive 2004/38, namely a period of six months after the cessation of employment during which the right to social assistance is retained, is consequently such as to guarantee a significant level of legal certainty and transparency in the context of the award of social assistance by way of basic provision, while complying with the principle of proportionality.

Moreover, as regards the individual assessment for the purposes of making an overall appraisal of the burden which the grant of a specific benefit would place on the national system of social assistance at issue in the main proceedings as a whole, it must be observed that the assistance awarded to a single applicant can scarcely be described as an ‘unreasonable burden’ for a Member State, within the meaning of Article 14(1) of Directive 2004/38. However, while an individual claim might not place the Member State concerned under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so.


VII- International officials

18) Judgment of 4 February 2015, Case C-647/13, Melchior

Questions

The request has been made in proceedings between the Office national de l’emploi (National Employment Office; ‘ONEM’) and Ms Melchior concerning that body’s refusal to grant Ms Melchior unemployment benefit.

In those circumstances, the cour du travail de Bruxelles decided to stay proceedings and refer the following question to the Court for a preliminary ruling:

‘Do the principle of sincere cooperation and Article 4(3) TEU, on the one hand, and Article 34(1) of the [Charter], on the other, preclude a Member State, in relation to the issue of qualifying for unemployment benefit, from refusing:

– to take account of periods of work as a member of the contract staff of an EU institution established in that Member State, in particular where, both before and after the period of employment as a member of the contract staff, work was performed as an employed person under the legislation of that Member State;

– to treat days of unemployment for which payment is made under the [Conditions of Employment] as working days, although days of unemployment for which payment is made in accordance with the legislation of that Member State are so treated?’

Appraisal

It should be remembered that EU law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at

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EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. Nevertheless, the Member States must comply with EU law when exercising that power (see inter alia, to this effect, judgments in Kristiansen, C-92/02, EU:C:2003:652, paragraph 31, and Elchinov, C-173/09, EU:C:2010:581, paragraph 40).

It should also be remembered that the Conditions of Employment, like the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), were adopted by means of a Council regulation, Regulation No 259/68, which, by virtue of the second paragraph of Article 249 EC, has general application, is binding in its entirety and is directly applicable in all Member States. It follows that, in addition to having effects within the EU administration, the Conditions of Employment are also binding on Member States in so far as their cooperation is necessary in order to give effect to those conditions (judgments in Commission v Belgium, EU:C:1981:237, paragraphs 7 and 8; Commission v Belgium, 186/85, EU:C:1987:208, paragraph 21; and Kristiansen, EU:C:2003:652, paragraph 32).

Legislation of a Member State that does not take into account, in relation to eligibility for unemployment benefit, periods of work completed as a member of the contract staff in an EU institution established in that Member State is also such as to impede the recruitment by those institutions of contract staff. As the Advocate General has observed in points 51 to 53 of his Opinion, legislation of that kind is liable to deter workers resident in that Member State from engaging in employment in an EU institution the duration of which, as limited by regulation, means that they face the prospect of having, sooner or later, to enter or re-enter the national labour market, since, owing to that employment, they may not reach the number of working days that is required by that legislation to claim benefits in the event of unemployment.


19) Judgment of 10 September 2015, Case C-408/14, Wojciechowski

Questions

The request has been made in proceedings between Ms Wojciechowski and the Office national des pensions (ONP) in relation to the ONP’s refusal to pay her a retirement pension for employed persons.

In those circumstances, the Tribunal du Travail de Bruxelles decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘On a proper construction of the principle of sincere cooperation and Article 4(3) TEU, on the one hand, and of Article 34(1) of [the Charter], on the other, is a Member State precluded from reducing or refusing a retirement pension payable to an employed person by virtue of the service performed, in accordance with the legislation of that State, where the total number of years of the occupational record acquired by him in that State and within the EU institutions exceeds the “occupational record unit” of 45 years referred to in Article 10a of [Royal Decree No 50]?’

Appraisal

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By its question, the referring court asks, in essence, whether Article 4(3) TEU, on the one hand, and Article 34(1) of the Charter, on the other, must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which may give rise to the reduction or refusal of a retirement pension payable to an employed person who is a national of that Member State by virtue of the service performed, in accordance with the legislation of that Member State, where, under the method of calculation provided for by that legislation, the total number of years of the occupational record acquired by him as an employed person in that Member State and as an EU official posted in that State exceeds the ‘occupational record unit’ of 45 years referred to in that legislation.

Such legislation could deter a worker who has acquired a certain length of service under the pension scheme for employed persons in that Member State from accepting a post in the service of an EU institution located in that State or encourage him to leave the post he holds in that institution early if, on account of that legislation, he may, by holding a post in that institution or by remaining in its service for a considerable time, lose the opportunity of benefiting from the pension rights which he has acquired by virtue of his activity as an employed person within that Member State prior to entering the service of the European Union.

Such consequences cannot be accepted in the light of the duty of sincere cooperation and assistance which Member States owe the European Union and which finds expression in the obligation laid down in Article 4(3) TEU to facilitate the achievement of the European Union’s tasks.

Admittedly, as the Belgian Government has pointed out, in the cases which gave rise to the judgments in My (C-293/03, EU:C:2004:821) and Melchior (C-647/13, EU:C:2015:54) and the order in Ricci and Pisaneschi (C-286/09 and C-287/09, EU:C:2010:420), the periods of work completed in the service of the EU institutions or bodies were not taken into account in order to assess whether the persons concerned were entitled to the benefits provided for by the social security scheme of the Member State concerned which they could have claimed had, during those periods, they been a member of that scheme, whereas, in the case in the main proceedings, the period of work completed by Ms Wojciechowski in the service of the Commission was indeed taken into account in order to calculate her retirement pension as an employed person from the Belgian scheme.

That fact is not, however, such as to call into question the finding made in paragraphs 43 to 45 above, since, even though that period has been taken into account, the outcome is still the reduction, or elimination, of the pension rights which Ms Wojciechowski could have claimed from the Belgian scheme for employed persons had she not subsequently entered the service of an EU institution, and therefore also acts as a deterrent from her point of view.


VIII- Agreement with Turkey

20) Judgment of 14 January 2015, Case C 171/13, Demirci,

Questions

The respondents in the main proceedings returned to their families in Turkey, after obtaining Netherlands nationality whilst retaining their Turkish nationality. They

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continued to receive the benefit under the WAO as well as the supplementary benefit under Article 39(4) of the Additional Protocol.

On 26 May 2011, in its judgment in Akdas and Others (C-485/07, EU:C:2011:346), the Court held, in respect of workers having received the same supplementary benefits under the TW as the respondents in the main proceedings but who, unlike them, had only Turkish nationality, that the first subparagraph of Article 6(1) of Decision No 3/80 must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding legislation of a Member State, such as Article 4a of the TW, which withdraws the award of a benefit such as the supplementary benefit, made under the national legislation, from former Turkish migrant workers when they have returned to Turkey after losing their right to reside in the host Member State because they became incapacitated in that Member State.

In those circumstances, the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Must Article 6(1) of Decision No 3/80, having regard to Article 59 of the Additional Protocol, be interpreted as precluding a legislative provision of a Member State, such as Article 4a of the TW, which withdraws the supplementary benefit awarded on the basis of national legislation if the persons in receipt of that benefit no longer live in the territory of that State, even if those persons, while retaining Turkish nationality, have acquired the nationality of the host Member State?

2. If, in answering the first question, the Court of Justice concludes that the persons concerned may rely on Article 6(1) of Decision No 3/80, but that such reliance is restricted by the effect of Article 59 of the Additional Protocol: must Article 59 of the Additional Protocol be interpreted as precluding continuation of entitlement to the supplementary benefit for Turkish nationals [having also acquired Netherlands nationality] as from the point in time at which European Union nationals can no longer claim entitlement to that benefit on the basis of EU law, even if European Union nationals retained that benefit for a longer period of time on the basis of national law?’

Appraisal

As regards Decision No 1/80, the Court has held that it is essentially aimed at the progressive integration of Turkish workers into the territory of the host Member State (see, to that effect, judgment in Abatay and Others, C-317/01 and C-369/01, EU:C:2003:572, paragraph 90).

As for Decision No 3/80, Article 3(1) thereof constitutes the implementation and the concrete expression, in the particular field of social security, of the general principle of non-discrimination on grounds of nationality laid down in Article 9 of the Association Agreement (judgment in Akdas and Others, EU:C:2011:346, paragraph 98).

It is common ground that the respondents in the main proceedings have benefited from the rights they enjoy under the EEC-Turkey Association regime as Turkish workers having been duly registered as belonging to the Netherlands labour force. As they became permanently incapacitated for work, they became eligible to receive the supplementary benefit under the terms defined by the national legislation. They also acquired Netherlands nationality whilst retaining Turkish nationality.

In such circumstances, the respondents in the main proceedings cannot rely on Decision No 3/80 to object to the residence requirement imposed by the national legislation as a condition for receiving the supplementary benefit in question.

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In the first place, the fact that the respondents in the main proceedings acquired the nationality of the host Member State as Turkish workers puts them in a very specific situation, especially given the objectives of the EEC-Turkey Association regime.

On the one hand, as regards the integration objective pursued by that association regime, it must be emphasised that the acquisition of the nationality of the host Member State represents, in principle, the most accomplished level of integration of the Turkish worker in the host Member State.

On the other hand, the acquisition of the nationality of that Member State entails, for the Turkish national, the legal consequences of the regime arising not only from the possession of that nationality but also, as a corollary, from citizenship of the Union, including in particular the right to reside and move freely in the Member States.

There is accordingly nothing justifying the proposition that a Turkish national, whose legal regime has necessarily changed at the time of acquisition of the nationality of the host Member State, should not be treated by that State exclusively as one of its own nationals for the purposes of paying out a benefit such as that at issue in the main proceedings.

In that respect, the main proceedings in this case must be distinguished from those which gave rise to the judgment in Akdas and Others (EU:C:2011:346).

That judgment concerns Turkish nationals having been duly registered as belonging to the labour force of the Netherlands who were required to transfer their residence to Turkey due to a permanent incapacity for work.

In the circumstances of the present case, however, the respondents in the main proceedings have not been required to forego the supplementary benefit, since they maintain their residence in the territory of the Kingdom of the Netherlands, which they are free to do, in particular by virtue of the fact that they possess Netherlands nationality.

If persons such as the respondents in the main proceedings who, as Netherlands citizens, retain a right to reside in the Netherlands and are thus in a comparable situation to that of citizens of the Union, are able to receive that benefit on the basis of Article 6(1) without having to comply with the requirement to reside in that Member State, this will give rise to more favourable treatment of them as compared to other citizens of the Union, a result precluded by Article 59 of the Additional Protocol.


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