EUROPEAN COMMISSIONEMPL/01847/12 - EN
AdvC 05/12Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2011 to mid-2012)
SECRETARIAT – 05.10.2012
Orig. EN
ADVISORY COMMITTEE
FOR THE COORDINATION OF SOCIAL SECURITY SYSTEMS
Subject:Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2011 to mid-2012)
Note from the Secretariat of 5 October 2012
By the present note, the Legal Service informs the Advisory Committee about the jurisprudence of the European Court of Justice on Articles 45 to 48 TFEU (the free movement of workers and coordination of social security) in the period from summer 2011 to summer 2012.
1.Judgment of the Court of 20 October 2011 in Case C-225/10, Pérez Garcia e. a.
2.Judgment of the Court of 15 December 2011 in Case C-257/10, Bergström
3.Judgment of the Court of 17 January 2012 in Case C-347/10, Salemink
4.Judgment of the Court of 7 June 2012 in Case C-106/11, Bakker
5.Judgment of the Court of 12 June 2012 in joined Cases C-611/10 and C-612/10, Hudzinski and Wawrzyniak
6.Judgment of the Court of 19 July 2012 in Case C-62/11, Feyerbacher
7.Judgment of the Court of 19 July 2012 in Case C-522/10, Reichel-Albert
8.Judgment of the Court of 27 September 2012 in Case C-137/11, Partena
1. Judgment of the Court of 20 October 2011 in Case C-225/10, Pérez Garcia e. a.
1.1.The questions:
This reference for a preliminary ruling concerns the interpretation of Articles 77 and 78 of Council Regulation (EEC) No 1408/71 of 14 June 1971. The reference has been made in four sets of proceedings between Mr Pérez García et. al. and the Family Assistance Fund, Nuremberg concerning the latter’s refusal to grant them the benefit of the allowances for dependent children in respect of their handicapped adult children.
By its questions the national court asked, in essence, whether Articles 77(2)(b)(i) and 78(2)(b)(i) of Regulation No1408/71 must be interpreted as meaning that recipients of old-age or invalidity pensions, having been subject to the legislation of several Member States, but whose pension rights are based on the legislation of the former Member State of employment alone (Germany), are entitled to claim from the competent authorities of that State the family allowances provided for by that legislation for handicapped children, even though they did not in the Member State of residence (Spain) seek the comparable, higher, allowances under the legislation of that latter State, because they had opted to be granted another benefit for handicapped persons that is incompatible with those.
1.2.Assessment
The Court notes first, that the Spanish non-contributory benefit for handicapped persons, which the interested persons chose in Spain, is included in Annex IIa of Regulation No 1408/71, which sets out, in section H, special non-contributory Spanish benefits Consequently, that benefit does not fall within the concept of ‘family allowances’ within the meaning of Article 1(u)(ii) of that regulation and therefore does not constitute a ‘benefit’ coming under Articles 77 and 78 of that regulation.
By contrast, in its declaration made in accordance with Article5 of Regulation No 1408/71, the Kingdom of Spain expressly stated that the Spanish dependent child benefit and the benefits for orphans provided for by Legislative Decree 1/1994 constitute family benefits covered, respectively, by Articles 77 and 78 of that regulation. Where such benefits were mentioned in that declaration they are to be regarded as benefits covered by those provisions.
In the present case the referring court seeks to determine the scope of the word ‘acquired’ for the purpose of Articles 77(2)(b)(i) and 78(2)(b)(i) of Regulation No 1408/71. It seeks to ascertain whether the right to family allowances provided for in the Member State of residence may be considered to be ‘acquired’, for the purposes of those provisions, when that right is excluded only by reason of the interested persons’ own choice to be granted another benefit incompatible with those family allowances, those interested persons having exercised, in that respect, a right of option provided for by national law
As is apparent from the case-law of the Court, for it to be possible to regard family allowances as being ‘acquired’ under the legislation of a Member State, the law of that State must recognise the right to the payment of benefits in favour of the member of the family who works or worked in that State, those benefits being accordingly due under that legislation (see, by analogy Case 134/77 Ragazzoni [1978] ECR963, paragraph 8; and Case 191/83 Salzano [1984] ECR3741, paragraph 7).
According to similarly established case-law of the Court, the recognition of such a right requires that the interested person should fulfil all the conditions, as to both form and substance, imposed by the national legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy, Ragazzoni, paragraphs 8 and 9; Salzano, paragraphs 7 and 10; Case153/84 Ferraioli [1986] ECR1401, paragraph 14; Case C-117/89 Kracht [1990] ECR I-2781, paragraph 11; and Case C-119/91 McMenamin [1992] ECR I6393 paragraph 26).
Where, as in the case in the main proceedings, family allowances provided by the national rules of the Member State of residence may not be requested by the interested persons because they have opted for another benefit, the grant of which excludes payment of those allowances, it follows that the right of those persons, as the Spanish Government maintains and as the German Government indeed acknowledges, cannot be considered to be ‘acquired’ for the purposes of Articles77(2)(b)(i) and 78(2)(b)(i) of Regulation No 1408/71. Indeed, those interested persons do not meet all the conditions of form and of substance to be granted those allowances.
1.3.Operative part
“Articles 77(2)(b)(i) and 78(2)(b)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18December 2006 must be interpreted as meaning that recipients of old age and/or invalidity pensions, or the orphan of a deceased worker, to whom the legislation of several Member States applied, but whose pension or orphan’s rights are based on the legislation of the former Member State of employment alone, are entitled to claim from the competent authorities of that State the full amount of the family allowances provided under that legislation for handicapped children, even though they have not, in the Member State of residence, applied for comparable, higher, allowances under the legislation of that latter State, because they opted to be granted another benefit for handicapped persons which is incompatible with those, since the right to family allowances in the former Member State of employment was acquired by reason of the legislation of that State alone.”
2.Judgment of the Court of 15 December 2011 in Case C-257/10, Bergström
2.1.The questions:
This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 72 of Regulation (EEC) No 1408/71 and of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21 June 1999.
The reference has been made in proceedings between Ms Bergström, a Swedish national, and the Försäkringskassan (‘the National Social Insurance Office’) concerning the refusal by the latter to take into account, for the purposes of calculating the amount of family benefit provided for child-rearing, the period of employment completed by Ms Bergström in Switzerland.
By its first question the referring court asked, in essence, whether, under the Agreement and Regulation No 1408/71, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or self-employment, the competent institution of that Member State must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
2.2.Assessment
According to the national legislation, in order to claim PBDBL, Ms Bergström must prove that she was employed throughout the 240-day period before she gave birth. Ms Bergström completed the whole of that qualifying employment period in Switzerland.
It was not disputed that the benefit applied for by Ms Bergström is a family benefit within the meaning of Article 1(u)(i) of Regulation No1408/71. In order to answer the question referred, it was necessary to interpret Article 8(c) of the Agreement and Article 72 of Regulation No 1408/71, which, for the award of the benefit concerned, provide for the application of the ‘aggregation’ rule.
The Court held that the wording both of Article 8(c) of the Agreement and of Article 72 of Regulation No 1408/71 is unambiguous. Under Article 8(c) of the Agreement, aggregation includes ‘all periods’ taken into consideration by the national legislation of the countries concerned, while Article 72 of Regulation No1408/71 requires ‘periods of insurance, employment or self-employment completed in any other Member State’ to be taken into account in the course of aggregation, as if they were periods completed under the legislation of the competent institution.
It should be borne in mind that Regulation No 1408/71 was adopted on the basis of Article 51 of the EEC Treaty (now Article 48 TFEU), which empowered the Council of the European Union to adopt such measures in the field of social security as were necessary to provide freedom of movement for workers, making arrangements to that end to secure the aggregation for migrant workers and their dependants, for the purposes of acquiring and retaining the right to benefit and of calculating the amount of benefit, of ‘all periods’ taken into account under the laws of the several countries.
That interpretation is consistent with the aim of the Agreement, which is to ensure the free movement of persons between the Swiss Confederation and the Community. It is also consistent with the principle of equal treatment laid down in Article 8(a) of the Agreement, given that it is aimed at ensuring that the exercise of the right to freedom of movement does not have the effect of depriving a migrant worker of social security advantages, as compared with other workers who have not exercised that right.
Accordingly, the institution of a Member State which is competent to award a family benefit would not be able to demand that an insurance period must have been completed in its own territory in addition to a period of employment or self-employment completed in another State – in the present case, in Switzerland.
Consequently, the answer to the first question is that, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or selfemployment, the institution of that Member State which is competent to make such an award must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
In addition, the Court held that the relevant provisions of Regulation 1408/71 and of the Agreement must be interpreted as meaning that, where the amount of a family benefit, such as that at issue in the case before the referring court, falls to be determined in accordance with the rules governing sickness benefit, that amount – awarded to a person who has completed in full the necessary employment periods for acquiring that right in the territory of the other Contracting Party – must be calculated by taking into account the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit is sought.
2.3.Operative Part:
1.Article 8(c) of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21June 1999, and Article72 of Regulation (EEC) No 1408/71 of the Council of 14June1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as meaning that, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or self-employment, the institution of that Member State which is competent to make such an award must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
2.Article 8(a) of that Agreement, and Article 3(1), Article 23(1) and(2) and Article 72 of Regulation No1408/71, as amended by Regulation No1386/2001, and paragraph 1 of point N of Annex VI thereto must be interpreted as meaning that, where the amount of a family benefit, such as that at issue in the case before the referring court, falls to be determined in accordance with the rules governing sickness benefit, that amount – awarded to a person who has completed in full the necessary employment periods for acquiring that right in the territory of the other Contracting Party – must be calculated by taking into account the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit is sought.
3.Judgment of the Court of 17 January 2012 in Case C-347/10, Salemink
3.1.The question
This reference for a preliminary ruling concerns the interpretation of Articles 39 EC and 299 EC, and of Titles I and II of Regulation (EEC) No 1408/71. The reference has been made in proceedings between Mr Salemink, a Netherlands national who had worked on a gas-drilling platform on the continental shelf adjacent to the Netherlands and resident in Spain, and the Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Management Board of the Employee Insurance Agency), concerning its refusal to grant Mr Salemink invalidity benefit.
By its question the national court asks, in essence, whether the provisions of Regulation No 1408/71 and Article 39 EC must be interpreted as precluding an employee, working on a fixed installation on the continental shelf adjacent to a Member State, from being in a position in which he is not compulsorily insured under national statutory employee insurance in that Member State solely on the ground that he is not resident there but in another Member State.
3.2.The Assessment
Under Article 13(2)(a) of Regulation No1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State.
The Netherlands Government submit in that connection that the territorial scope of Regulation No 1408/71 is restricted to the national territory and that the professional activity in question is carried out on a gas-drilling platform on the continental shelf adjacent to the Netherlands, outside the Netherlands’ territorial waters.
In that regard, reference must be made to the rules and principles of international law relating to the legal regime applicable to the continental shelf. In its judgment of 20 February 1969 (the so-called North Sea Continental Shelf cases, Reports, 1969, p. 3, paragraph 19), the International Court of Justice had to rule on the rights of the coastal State in respect of the area of the continental shelf constituting a natural prolongation of its land territory under the sea. It held that such rights exist ipso facto and ab initio by virtue of the State’s sovereignty over the land and by extension of that sovereignty in the form of the exercise of sovereign rights for the purposes of the exploration of the seabed and the exploitation of its natural resources.
It follows from Article 77 of the Convention on the Law of the Sea that the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. Those rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its express consent.
Further reference is made to Article 80 of the Convention on the Law of the Sea, in conjunction with Article 60 thereof, according to which the coastal State has the exclusive right to construct the artificial islands, installations and structures on the continental shelf, to authorise them and to regulate their construction, operation and use. The coastal State has exclusive jurisdiction over such artificial islands, installations and structures.
Since a Member State has sovereignty over the continental shelf adjacent to it – albeit functional and limited sovereignty (see, to that effect, Case C-111/05 Aktiebolaget NN [2007] ECR I-2697, paragraph 59) – work carried out on fixed or floating installations positioned on the continental shelf, in the context of the prospecting and/or exploitation of natural resources, is to be regarded as work carried out in the territory of that State for the purposes of applying EU law (see, to that effect, Case C-37/00 Weber [2002] ECR I-2013, paragraph 36, and Case C6/04 Commission v United Kingdom [2005] ECR I-9017, paragraph 117).
Since it has been established that EU law, and in particular Regulation No 1408/71, is applicable to the continental shelf adjacent to a Member State, it is necessary to examine whether that regulation and the provisions of the EC Treaty on freedom of movement for workers preclude a person in Mr Salemink’s situation from being excluded from the compulsory insurance scheme after transferring his residence to Spain.
In that regard, the sole purpose of Article 13(2)(a) of Regulation No1408/71 is to determine the national legislation applicable to persons employed in the territory of a Member State. As such, the provision is not intended to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme. As the Court has stated on several occasions in its case-law, it is for the legislation of each Member State to lay down those conditions (see, inter alia, Case 275/81 Koks v Raad van Arbeid [1982] ECR 3013, and C-227/03 van PommerenBourgondiën [2005] ECR I-6101, paragraph 33).
However, although Member States retain the power to organise the conditions of affiliation to their social security schemes, they must none the less, when exercising that power, comply with EU law and, in particular, the Treaty provisions on freedom of movement for workers (see, to that effect, Case C-2/89 Kits van Heijningen [1990] ECR I1755, paragraph 20, and Case C-135/99 Elsen [2000] ECR I-10409, paragraph 33).
Consequently, those conditions may not have the effect of excluding from the scope of national legislation, such as that at issue in the main proceedings, persons to whom that legislation applies pursuant to Regulation No 1408/71 and the compulsory insurance schemes must be compatible with the provisions of Article 39 EC (see, to that effect, Kits van Heijningen, paragraph 20, and van Pommeren-Bourgondiën, paragraph 39).