EUROPEAN COMMISSIONEMPL/01909/13 – EN
AdvC 05/13Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2012 to mid-2013)
SECRETARIAT – 07.10.2013
Orig.: FR
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-2012 to mid-2013)
Note from the Secretariat of 4 October 2013
In this note, the Legal Service informs the Advisory Committee of the rulings of the European Court of Justice concerning Articles 45 to 48 TFEU (free movement of workers and coordination of social security systems) over the period from the summer of 2012 to the summer of 2013.
A. JUDGMENTS ON THE INTERPRETATION OF REGULATIONS (EEC) NO 1408/71 AND (EC) NO 883/2004
Applicable law
1. Judgment of 4 October 2012, Case C-115/11, Format (Article 14(2)(b) of Regulation (EEC) No 1408/71)
Sickness benefits
2. Order of 11 July 2013, Case C-430/12, Luca (Article 22 of Regulation (EEC) No 1408/71; Article 49 TFEU)
Pensions
3. Judgment of 7 February 2013, Case C-122/11, Commission/Belgium (Articles 4 and 7 of Regulation (EC) No 883/2004)
4. Judgment of 21 February 2013, Case C-282/11, Salgado Gonzalez (Articles 46 and 47 of Regulation (EEC) No 1408/71)
5. Judgment of 7 March 2013, Case C-127/11, Van den Booren (Article 46(a) of Regulation (EEC) No 1408/71)
6. Judgment of 18 April 2013, Case C-548/11, Mulders (Articles 13(2)(a) and 46 of Regulation (EEC) No 1408/71)
7. Judgment of 16 May 2013, Case C-589/10, Wencel (Articles 12(2) and 46(a) of Regulation (EEC) No 1408/71; Article 45 TFEU)
Unemployment benefits
8. Judgment of 11 April 2013, Case C-443/11, Jeltes (Article 65(2) of Regulation (EC) No 883/2004)
Family benefits
9. Judgment of 21 February 2013, Case C-619/11, Dumont de Chassart (Articles 72, 78 and 79 of Regulation (EEC) No 1408/71)
10. Judgment of 13 June 2013, Case C-45/12, ONAFTS v Hadj Ahmed (Article 1(f) of Regulation (EEC) No 1408/71; Article 1 of Regulation (EC) No 859/2003; Article 18 TFEU
11. Judgment of 19 September 2013, Case C-216/12 and C-217/12, Hliddal (Articles 1(u); and 4(1) of Regulation (EEC) No 1408/71)
B. JUDGMENTS ON THE INTERPRETATION OF OTHER PROVISIONS
12. Judgment of 4 October 2012, Case C-75/11, Commission v Austria (Articles 18, 20 and 21 TFEU)
13. Judgment of 25 October 2012, Case C-367/11, Prete (Article 45 TFEU)
14. Judgment of 13 December 2012, Case C-379/11, Caves Krier (Article 45 TFEU)
15. Judgment of 4 July 2013, Case C-233/12, Gardella (Articles 45, 48 TFEU)
16. Judgment of 19 September 2013, Case C-140/12, Brey (Article 70(4) of Regulation (EC) No 883/2004; Article 7 Directive 2004/38/EC)
17. Judgment of 26 September 2013, Case C-431/11, United Kingdom v Council(Article 48 TFEU)
18. Judgment of 20 June 2013 in Case C-20/12, Giersch (Article 7(2) of Regulation (EEC) No 1612/68)
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A. JUDGMENTS ON THE INTERPRETATION OF REGULATIONS (EEC) NO 1408/71 AND (EC) NO 883/2004
1. COURT JUDGMENT OF 4 OCTOBER 2012 IN CASE C 115/11 FORMAT
1.1. Questions:
The reference for a preliminary ruling concerns the interpretation of Article 14(2)(b) of Council Regulation (EEC) No 1408/71. It was submitted as part of a dispute between the company Format Urządzenia i Montaże Przemysłowe sp. z o.o. (hereinafter "Format"), in the presence of one of its employees, Mr Kita, and Zakład Ubezpieczeń Społecznych (social insurance institute, hereinafter "ZUS"), on the determination of legislation applicable to Mr Kita pursuant to this Regulation.
By its two questions, which should be examined together, the referring court seeks to know, in substance, whether Article 14(2)(b) of Regulation (EEC) No 1408/71 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, cannot fall within the concept of a 'person normally employed in the territory of two or more Member States', within the meaning of that provision, and whether, if this is the case, the situation of such a person is governed by paragraph 2(b)(i) or (ii) of that Article.
1.2 Appraisal
As the Commission has pointed out, in order to fall within Article 14(2) of Regulation No 1408/71, a person must ‘normally’ be employed in the territory of two or more Member States.
It follows that, if employment in the territory of a single Member State constitutes the normal arrangement for the person concerned, such employment cannot fall within the scope of Article 14(2).
Therefore, in order to provide a useful answer to the referring court, it is necessary to take account of the existence, in the case of the the main proceedings, of a divergence between, on the one hand, the employment contracts at issue in those proceedings and the places of employment which they stipulate – on the basis of which Format requested an E101 certificate to be issued – and, on the other, the way in which the obligations were performed in practice under those contracts.
In that regard, it should be noted that the issuing institution of an E101 certificate is required to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security and, consequently, to ensure the correctness of the information contained in that certificate (see, to that effect, FTS, paragraph 51, and Case C-178/97 Banks and Others [2000] ECR I‑2005, paragraph 38).
If it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, the obligation mentioned in paragraph 42 of the present judgment to apply Regulation No 1408/71 correctly means that it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation and, where appropriate, to refuse to issue the E101 certificate.
Moreover, it is apparent from the case-law that it is incumbent on the institution which has already issued an E101 certificate to reconsider the grounds for its issue and, if necessary, withdraw the certificate if the competent institution of a Member State in which the employed person carries out work expresses doubts as to the correctness of the facts on which the certificate is based and/or as to compliance with the requirements of Title II of Regulation No 1408/71 (see, by analogy, in the context of Article 14(1) of Regulation No 1408/71, FTS, paragraph 56, and Banks and Others, paragraph 43).
In the contracts at issue in the main proceedings, referred to in paragraphs 16 and 17 of this judgment, the place of employment was described as being ‘operations and building sites in Poland and within the territory of the European Union (Ireland, France, Great Britain, Germany, Finland), as instructed by the employer.’ However, as is apparent from the undisputed information provided to the Court of Justice by the referring court, by Format and by the ZUS, under those contracts, Mr Kita performed work continuously for several months or more than 10 months in the territory of a single Member State, namely, France. Moreover, under the next employment contract, concluded again between Format and Mr Kita for a fixed period, Mr Kita worked in Finland only. It is apparent from the documents before the Court that, under each of those three contracts, when the work was finished, Mr Kita obtained unpaid leave and that, by agreement of the parties, the contract concerned was then terminated early.
In such circumstances, account being taken of paragraphs 39 and 40 of the present judgment, it cannot validly be maintained that an employed person in a situation such as Mr Kita’s can fall within the concept of ‘a person normally employed in the territory of two or more Member States’ within the meaning of Article 14(2) of Regulation No 1408/71.
1.3 Operative part
Article 14(2)(b) of Regulation (EEC) No 1408/71 of the Council 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 18 December 2006, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, cannot fall within the concept of ‘a person normally employed in the territory of two or more Member States’, within the meaning of that provision.
Sickness benefits
2. ORDER OF THE COURT OF 11 July 2013 in Case C‑430/12 Luca
2.1. Questions
By its three questions, which should be examined together, the referring court asks, in substance, whether Article 49 EC and Article 22 of Regulation (EEC) No 1408/71 preclude rules of a Member State, such as those at issue in the main proceedings, which make full payment by the competent institution of hospital treatment given in another Member State subject to prior authorisation. If so, it also asks about the rate of reimbursement for such care, received without prior authorisation and paid for by the insured person, where the amount provided for in the legislation of that Member State differs from that set by the legislation of the Member State of residence of the insured person.
2.2. Appraisal
In paragraphs 45 to 47 of the Elchinov judgment, referred to above, the Court held that a national ruling excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation deprives the insured person who, for reasons relating to his state of health or to the need to receive urgent treatment in a hospital, was prevented from applying for such authorisation or was not able to wait for the answer of the competent institution, of reimbursement from that institution in respect of such treatment, even though all other conditions for such reimbursement to be made are met. It also considered that such a ruling was not justified by requirements of public interest and, in any case, did not meet the proportionality requirement, thus constituting an unjustifiable restriction on the free movement of services.
In view of these considerations, the Court held, in the above-mentioned Elchinov judgment, that Article 49 EC and Article 22 of Regulation (EEC) No 1408/71 preclude a rule of a Member State which is interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation.
It follows that hospital care provided in another Member State must be covered by the competent institution at the rate determined by the legislation of that Member State, if it has been authorised as required by Article 22(1)(c) of Regulation (EEC) No 1408/71. If that amount is less than that which would have resulted from application of the legislation in force in the Member State of residence if hospital treatment had been provided there, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution (Elchinov, paragraphs 78 and 81 and the case-law cited).
The same amount is payable by the competent institution where refusal to issue prior authorisation is unfounded or reimbursement is refused simply due to the lack of prior authorisation for hospital care provided in another Member State and paid for by the insured person, in particular in circumstances such as those referred to in paragraph 23 of this judgment (see Elchinov, paragraphs 75 to 77).
2.3. Operative part
Article 49 EC and Article 22 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008, do not in principle preclude a ruling by a Member State which makes full coverage of hospital care provided in another Member State subject to prior authorisation. On the other hand, these Articles do preclude such a ruling interpreted as excluding, under all circumstances, full coverage by the competent institution of such care provided without prior authorisation.
In the case of unfounded refusal to reimburse hospital care provided in another Member State and paid for by the insured person being refused simply due to the lack of prior authorisation, given the particular circumstances, the cost of this care must be reimbursed to the insured person by the competent institution at the rate established by the legislation of that Member State. If that amount is less than that which would have resulted from application of the legislation in force in the Member State of residence if hospital treatment had been provided there, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution.
Where such refusal is justified, the insured person may claim, pursuant to Article 49 EC, reimbursement for hospital care only within the limits of the cover guaranteed by the sickness insurance scheme of which he is a member.
PENSION SCHEMES
3. JUDGMENT OF THE COURT OF 7 FEBRUARY 2013 IN CASE C‑122/11, Commission vBelgium
3.1. Application
By its application, the European Commission asked the Court to rule that, having lifted the residence condition only on 1 August 2004 which precluded the indexing of the pensions of citizens of the European Union and the European Economic Area (EEA) residing outside a State which has concluded a reciprocal agreement with Belgium and having failed to end the discrimination from which they suffered over the period prior to 1 August 2004 since they were deprived of part of their pension, Belgium had failed in its obligations under Articles 4 and 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 L 166, p. 1, and corrigendum OJ L 200, p. 1), as well as Articles 18 TFEU and 45 TFEU laying down the principle of non-discrimination on the grounds of nationality.
On 19 December 2002, the Commission sent a letter of formal notice to the Belgium in which it considered that the Law of 1960, in particular Article 11 as amended by the Act of 1981, and the Act of 1963, in particular Article 51 as amended by the Act of 20 July 1990 (hereinafter "Belgian legislation"), was contrary to Articles 39 EC and 12 EC.
This letter of formal notice followed the complaints received by the Commission, filed by nationals of Member States other than Belgium, living in South Africa, the United States or Switzerland, and complaining that the Belgian pensions paid to them pursuant to Belgian legislation were not index-linked, since the benefits payable to recipients living outside the territory of the Union are adjusted to the cost of living only in the case of Belgian nationals and nationals of countries which have signed a reciprocity agreement with Belgium (hereinafter the "residence condition").
In this letter of formal notice, the Commission argued that the residence condition, which is not enforceable against Belgian nationals, constitutes discrimination directly based on nationality and was therefore contrary to the Articles of the EC Treaty.
Following the adoption of the Act of 2004, which entered into force on 1August 2004, the Commission sent a letter to the Member State in question on 24October 2005 asking for an explanation as to why it had made pension adjustments from 1August 2004 only, and enquiring as to what measures the Belgian Government intended to take, where appropriate, in order to regularise the complainants' past records.
In a letter of 21 February 2006, Belgium replied to the Commission that there should be retroactive effect, in particular in view of the practical difficulties linked to the identification of beneficiaries and their residence.
3.2. Appraisal
The Commission thus accuses Belgium of not having eliminated the infringement of EU law for periods in the past. However, first of all, the Commission does not specify over which period the infringement of EU law should be rectified or, in other words, the date to which the Act of 2004 should have been made retroactive in order to end the discrimination.
3.3. Operative part
The application was dismissed
4. JUDGMENT OF THE COURT OF 21 February 2013 IN CASE C 282/11 Salgado González
4.1. Preliminary questions
The reference for a preliminary ruling concerns the interpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971, and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJL166, p.1), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJL284, p.43, hereinafter "Regulation (EC) No 883/2004").
The request was made in proceedings between Ms Salgado González and the Instituto Nacional de la Seguridad Social (INSS) (hereinafter the "INSS") and the Tesorería General de la Seguridad Social (TGSS) concerning the amount of the old-age pension of the applicant in the main proceedings.
By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 48 TFEU and Article 3 of Regulation (EC) No 1408/71 and Heading H, paragraph 4, of Annex VI, to that Regulation, or paragraph 2(a) (Spain) of Annex XI to Regulation (EC) No 883/2004 preclude legislation of a Member State, such as that at issue in the main proceedings, pursuant to which the theoretical amount of the retirement pension of the self-employed worker, migrant or non-migrant, is invariably calculated on contribution bases paid by that worker over the fixed reference period of 15 years preceding the payment of his last contribution in that Member State, divided by 210, when it is impossible for either the duration of that period or the divisor used to be adapted so as to take account of the fact that the worker concerned has exercised his right to freedom of movement.
4.2 Appraisal
In that regard, it should be noted that under Article 46(2)(a) of Regulation (EEC) No 1408/71, the theoretical amount of that benefit must be calculated as if the insured person had worked exclusively in the Member State concerned (judgment of 21 July 2005, Koschitzki, Case C-30/04, ECR I‑7389, paragraph 27).
In addition, Article 47 of Regulation (EEC) No 1408/71 lays down additional provisions for the calculation of benefits. In particular, in subparagraph (1)(g), it provides that where, under the legislation of a Member State, benefits are calculated on the basis of average contributions, the competent institution is to determine that average by reference only to those periods of insurance completed under the legislation of that State. In addition, Heading H of Annex VI to Regulation (EEC) No 1408/71, which sets out the specific rules for the application of Spanish legislation, states in paragraph 4(a) that under Article 47 of that Regulation, the calculation of the theoretical Spanish benefit is to be carried out on the basis of the insured person’s actual contributions during the years immediately preceding payment of the last contribution to Spanish social security.
As appears from settled case-law, Articles 46(2) and 47(1) of Regulation (EEC) No 1408/71 must be interpreted in the light of the objective laid down by Article 48 TFEU, which implies in particular that migrant workers must not suffer a reduction in the amount of their social security benefits as a result of having availed themselves of their right of free movement (above-mentioned judgments Reichling, paragraphs 21 and 22, and Lafuente Nieto, paragraph 33).
However, in the context of the award of the benefit at issue in the main proceedings, the INSS calculated the theoretical amount of Ms Salgado González’s retirement pension in accordance with the rule set out under Article 162(1) of the LGSS, pursuant to which that amount must be calculated on the basis of an average contribution.