Opinion of the Advocate General — ECLI:EU:C:2014:2260
Date: 2014-10-08
Language of the case: German
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 18 December 2014 1. Social security — Migrant workers — Equal treatment — Old-age and survivor's insurance — National legislation making entitlement to an old-age pension following participation in a part-time work scheme for older employees conditional on that scheme having taken place exclusively under the laws of that Member State concerned — Not permissible — Justification — None (Council Regulation No 1408/71, Art. 3(1)) 2. Acts of the institutions — Regulations — Implementation by the Member States — Obligation to interpret national law in conformity with EU law (Art. 288(2) TFEU) 3. Social security — Migrant workers — Equal treatment — Old-age and survivor's insurance — Entitlement to an old-age pension following participation in a part-time work scheme for older employees — Recognition of participation in a part-time work scheme for older employees which took place in accordance with the legislation of another Member State — Obligation to undertake a comparative examination of the conditions for the application of such schemes under the legislation of the two Member States (Council Regulation No 1408/71, Art. 3(1)) 1. The principle of equal treatment laid down in Article 3(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, precludes legislation of a Member State under which entitlement to an old-age pension following participation in a part-time work scheme for older employees is conditional on that scheme having taken place exclusively under the laws of that Member State. Such a provision, first, is liable to disadvantage workers who have exercised their right to freedom of movement, in so far as it places a migrant worker, who, having spent most of his working life in that 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 the Member State where the pension is sought and participates there in a pre-retirement scheme of that nature and, second, is likely to deter employers established in another Member State from hiring, under their national part-time work scheme for older employees, a person who has spent much of his working life in the Member State where the pension is sought, if the rules governing the national scheme are different from those governing the national part-time work scheme for older employees of that latter Member State. Moreover, the abovementioned provision cannot be justified, since it goes beyond what is necessary to attain the objectives pursued, namely, to ensure that the transition to retirement, for employees who request this, is as smooth as possible and to encourage the recruitment of apprentices or people who are unemployed. The outright exclusion from consideration, for the purposes of assessing entitlement to the national retirement pension, of participation in a part-time work scheme for older employees in another Member State reflects failure to have regard to the fact that such a scheme in that other Member State may pursue identical or similar objectives to those of the law of the Member State where the pension is sought, in accordance with rules which are also identical or similar to those under that law, and that, accordingly, the application of that scheme is likely to attain, in the same way, the legitimate objective or objectives in question. (see paras 35-37, 39, 41, 42, 46, operative part 1) 2. See the text of the decision. (see paras 44, 45) 3. The principle of equal treatment laid down in Article 3(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that, for the purposes of the recognition in a Member State of participation in a part-time work scheme for older employees which took place in accordance with the legislation of another Member State, it is necessary to undertake a comparative examination of the conditions for the application of such schemes under the legislation of those two Member States, in order to determine on a case-by-case basis whether the differences identified are liable to compromise attainment of the social policy objectives pursued by the legislation at issue in the former Member State. In that regard, although 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. Any interpretation of that provision as compelling Member States to treat such schemes automatically as equivalent would in effect deprive them of their competence in the field of social protection. 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. First, it is not inconceivable that the same objective can be achieved by various means and that, in consequence, the conditions for the application of a part-time work scheme for older employees differ as between those measures. Second, if those conditions were required to be identical, the examination in question would de facto be deprived of all practical effect, since it seems unlikely that the legislative provisions of two Member States would be identical in all respects. 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. (see paras 50-55, 57, 59, operative part 2)