Opinion of the Advocate General — ECLI:EU:C:2019:610
Date: 2019-07-11
Language of the case: Slovak
Subject matter: Social security for migrant workers;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary of written observations 28. The Czech Republic argues that the additional benefit in issue falls without doubt within the material scope of Regulation No 883/2004. Under the Court’s established case-law, a payment amounts to a social security payment only if it is made outside of any individual assessment or discretion based on personal needs of beneficiaries, on the basis of a legally defined situation, and if it is connected with one of the risks enumerated in Article 3(1) of Regulation No 883/2004. (7) 29. First, the additional benefit is a right under Slovak law. It is not, therefore, an optional benefit but is rather an obligatory payment. Second, it is paid automatically to those who meet objective criteria, that is having represented Slovakia or its predecessor State at identified international sporting events. In consequence, no power of individual assessment or discretion exists, the competent authority taking no account of the needs of the applicant. Thirdly, the additional benefit is a complement to the old-age pension, given that it is paid regularly and in parallel with the old-age pension. It is therefore a pension within the meaning of Article 1(w) of Regulation No 883/2004, which extends to supplements to pensions. (8) The additional benefit equally amounts to an old-age benefit in the sense of Article 3(1)(d) of Regulation No 883/2004 under the Court’s case-law. (9) The fact that the additional benefit paid does not depend on the amount of salary paid or periods of insurance completed does not detract from this assessment. (10) 30. Subordination of the payment of the additional benefit by a nationality condition is therefore precluded by Article 4 of Regulation No 883/2004. The determining element for the grant of the additional benefit is whether the person concerned has represented the State, or its antecedents, and obtained the required result, and not whether the person is a citizen of the Member State concerned. 31. The Slovak Republic contests this interpretation of EU law. It points out that it was initially envisaged that the Czech and Slovak Republics would take a coordinated approach to the additional benefit in issue, with both countries paying it to residents who had represented the Czechoslovak Republic at the designated international sporting events, whether they be Czech or Slovak, and provided that this did not result in double payment. For this reason, the Slovak Republic did not at first propose confining the payment of the additional benefit to Slovakian nationals. It only did so when the Czech Republic failed to pass a law extending the payment of the additional benefit to Slovakian nationals resident in the Czech Republic. Thus, if Slovakia was required to change the law, it would be furnishing the additional benefit to Slovakian nationals resident in both the Czech Republic and Slovakia, along with Czech nationals resident in Slovakia. 32. The Slovak Republic argues that the additional benefit in issue is not a social security payment under Regulation No 883/2004, and nor does it fall within special non-contributory benefits under Article 3(3) and 70 of the same regulation. 33. With regard to the former, this is determined by the constituent elements of the payment, notably its purpose and conditions of grant. It does not fall within one of the risks enumerated in Article 3(1) of Regulation No 883/2004. (11) It is not a retirement benefit under the Court’s case-law. (12) The additional benefit is paid independently of retirement benefits. It is paid even if the former sports man or woman receives no pension. It is not paid when retirement benefits surpass a specified limit. (13) Nor is the additional benefit paid out of the same sources as the old-age pension. It is paid directly by the State. Nor does the additional benefit aim at meeting the needs of beneficiaries. (14) It rather aims, inter alia, at rewarding high level athletes for their achievement and encouraging young athletes. Nor is the amount paid determined by the number of contribution completed or the insurance period. (15) 34. With regard to special non-contributory benefits under Articles 3(3) and 70 of Regulation No 883/2004, the Slovak Republic points out that the additional benefit does not fall within one of the risks elaborated in Article 3(1). Nor does it seek to guarantee a minimum level of subsistence. Nor does it fall within the benefit for handicapped people under Article 70(2)(a), and nor is the additional benefit envisaged by Annex X of Regulation No 883/2004 as required by Article 70(2)(c). 35. As for Article 34 of the Charter, it does not modify the position of the Slovak Republic. The additional benefit in issue falls outside the scope of application of EU law. (16) 36. The Commission points out that the additional benefit in issue, in effect, applies only to people who have reached retirement age and who have claimed a retirement pension. The fact that it is a complementary payment does not preclude it from being an old-age pension under Regulation No 883/2004. (17) But at the same time, the Commission is not certain that it falls within the scope of application of Regulation No 883/2004. It is a supplement to reward exceptional achievements for representing the country, payable to a small circle of people. Thus, the Commission concludes that the additional benefit in issue does not fall within the scope of application of Regulation No 883/2004, but that it needs to be considered whether it falls within the scope of application of Regulation (EU) No 492/2011 (18) and the provisions of the TFEU. 37. The Commission concludes, however, that it is not necessary to decide whether the additional benefit is a social advantage under Article 7(2) of Regulation No 492/2011, (19) because it is possible to reply to the question referred on the basis of the primary law of the TFEU. 38. In this context, the Commission refers to Article 18 TFEU, and the ruling of the Court in Tas-Hagen and Tas, (20)which it argues enables the appellant to invoke his status as a worker under Article 45 TFEU. IV. Analysis 39. The additional benefit falls within neither Regulation No 883/2004, Regulation No 492/2011, or the primary EU law on free movement referred to by the Commission. (21) That being the case, there is no scope for the application of Article 34 of the Charter, since the situation arising in the main proceedings is not ‘governed’ by EU law. (22) 40. With regard to Regulation No 883/2004, it is established in the Court’s case-law that ‘the distinction between the benefits which are excluded from the scope of Regulation No 883/2004 and benefits which are covered essentially rests on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether the national law classifies it as a social security benefit or not’. (23) In any event, in order to fall within the scope of Regulation No 883/2004, a national law must cover one of the risks expressly listed in Article 3(1) of that regulation. (24) 41. The additional benefit in issue in this case does not cover one of the risks expressly listed in Article 3(1) of Regulation No 883/2004 (listed above, point 8). The Court has consistently held that a benefit may be regarded as a ‘social security benefit’ in so far as it is granted to recipients without any individual and discretionary assessment of personal needs on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004. (25) The additional benefit is rather a reward for performance at international sporting events and national representation. The fact that, in practice, it is paid to people who have reached retirement age is not sufficient to bring it within old-age benefits under Article 3(1). As explained by the agent for Slovakia at the hearing, the additional benefit is only linked to recipients of the old-age pension who receive the maximum of the benefit set by Member State law, so that the sum received has to be decreased for these people. Eligibility for the additional benefit has no link in law with the receipt of the pension. 42. Under the established case-law of the Court, in order to determine whether the additional benefit can be classified as an ‘old-age benefit’ within the meaning of Article 3(1)(d) of Regulation No 883/2004, and therefore a social security benefit, the constituent elements of that bonus, in particular its purpose and the conditions on which it is granted, must be examined. (26) 43. The additional benefit in issue is granted to persons who have achieved high performance at international sporting events. It is intended as a reward for this performance, and to encourage younger athletes. I therefore conclude that the additional benefit is more akin to the Christmas bonus in Commission v Slovakia, (27) and held not to amount to an old-age benefit under Article 3(1)(d) of Regulation No 883/2004, than the holiday pay paid exclusively to persons entitled to a retirement or survivor’s pension, and financed by the same resources as the pension in the Court’s ruling in Noteboom, (28) and which was held to be an old age benefit. (29) Here the additional benefit is not paid out of the same fund as pensions but is rather funded directly by the State, and as explained above has no link with the pension system, aside from a reduction for former athletes in receipt of the maximum old-age pension under Slovakian law. 44. While I acknowledge that the payment in Commission v Slovakia was made to a wide group of beneficiaries, and the benefit at issue in the main proceedings to a narrow group, the discrete number of beneficiaries, linked as it is to performance at elite sporting events, only serves to underscore the difference between it and the supplements that attach to the old-age pension. 45. As for special non-contributory benefits under Articles 3(3) and 70 of Regulation No 883/2004, I agree with arguments made by the Slovak Republic at point 34 above, to the effect that it is impossible to fit the additional benefit in issue into Article 70. I note that Article 3(5)(a) expressly excludes ‘social assistance’ from the scope of Regulation No 883/2004, (30) and that Article 70(2)(a)(i) of Regulation No 883/2004 refers back to the branches of social security referred to in Article 3(1), and must be ‘supplementary, substitute, or ancillary cover ‘against one of the risks listed in Article 3(1). (31) As explained at point 41 above, I have reached the conclusion that the additional benefit in issue does not relate to any of the categories listed in that provision, and is rather a specific grant for rewarding sporting excellence. The additional benefit is not envisage by Annex X of Regulation No 883/2004, and does not aim to provide a minimum level of subsistence. 46. Nor does the additional benefit fall within Article 7(2) of Regulation No 492/2011 as a ‘social advantage’ the essential characteristics of which exclude benefits that are associated with service to the State. A scheme of national recognition cannot fall within Article 7(2) of Regulation No 492/2011. (32) Further, non-payment of the additional benefit to Czech nationals resident in Slovakia is only inconsistent with facilitation of mobility of workers, (33) with respect to a tiny number of EU workers; namely Czech nationals who have represented the former Republic of Czechoslovakia and who wish to move from the Czech Republic to the Slovak Republic. 47. In other words, non-payment of the additional benefit to anyone but Slovak nationals results in no global or wholesale discouragement of movement to work in Slovakia across the EU, (34) which arises from the refusal of the Slovak authorities to pay an additional benefit to Czech nationals, although, as explained in the written observations of the Slovakian Government and by their agent at the hearing, talks were entered into between the two Member States prior to the passage of the law in issue in the main proceedings, a coordinated response having been envisaged in which both countries would pay the additional benefit in issue to their own nationals, irrespective of residence. 48. Finally, the Commission’s reliance on the Court’s ruling in Tas-Hagen is misapprehended. There, the refusal of the Dutch Government to pay its own nationals a benefit awarded to civilian war victims by that government due to their residence in Spain was caught by the prohibition on discrimination on the basis of nationality under Article 18 EC, rather than amounting to a purely internal situation, precisely because the persons concerned had exercised their right to free movement by going and living in Spain, a Member State other than that of which they were nationals. (35) The Court concluded that ‘as the exercise by Mrs Tas-Hagen and Mr Tas of a right recognised by the Community legal order has had an impact on their right to receive a benefit under national legislation, such a situation cannot be considered to be a purely internal matter with no link to Community law.’ (36) 49. It is uncontested, however, that the appellant has never exercised his ‘freedom of movement’ rights under Article 45 TFEU. Therefore, while the Court’s ruling in Tas-Hagen would be apposite in a dispute between a Czech national and the Czech social security authorities in the event of refusal to pay a benefit because of exercise by a Czech national of their right to free movement by taking up residence in a Member State other than the Czech Republic, including the Slovak Republic, those facts do not arise in the main proceedings. The architecture of the main proceedings pits a Czech national who has never exercised free movement rights against his Member State of residence, namely Slovakia, and in which he has always resided since accession of that Member State to the European Union. 50. The dispute falls outside of the material scope of EU law so Article 34 of the Charter is inapplicable. V. Conclusion 51. I therefore propose the following answer to the question referred by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic): In the circumstances of the main proceedings, it is not possible to interpret Article 1(w), Article 4 and Article 5 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, considered in conjunction with the right to social security benefits and social advantages, as enshrined in Article 34(1) and (2) of the Charter of Fundamental Rights of the European Union, as precluding the application of a provision of national legislation pursuant to which the Slovak social security body is to take into consideration an applicant’s citizenship as a fundamental condition for the purposes of determining the right of national sports representatives to a benefit in addition to the old-age pension, even if another statutory requirement, namely the fact of having represented the legal predecessors of the State, including the Czechoslovak Socialist Republic, is also part of that provision of national legislation. 1 Original language: English. 2 OJ 2004 L 166, p. 1, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its Annexes OJ 2009 L 284, p. 43, and corrected by OJ 2004 L 200, p. 1 3 Judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, and order of 28 November 2013, Sociedade Agrícola e Imobiliária da Quinta de S. Paio, C‑258/13, EU:C:2013:810. 4 C‑399/09, EU:C:2011:415. 5 C‑361/13, EU:C:2015:601. 6 Judgment of 16 September 2015, C‑433/13, EU:C:2015:602. 7 In this regard the Czech Republic relies on the judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 15, and of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 71. The purposes and the conditions of grant are determinative, and not the qualification made by the Member State. See judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 14; of 10 October 1996, Zachow, C‑245/94 and C‑312/94, EU:C:1996:379, paragraph 17; and of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 70. 8 The Czech Republic relies in this regard on the judgment of 20 January 2005, Noteboom, C‑101/04, EU:C:2005:51, paragraph 27. 9 The Czech Republic relies on the judgment of 30 May 2018, Czerwinski, C‑517/16, EU:C:2018:350, paragraph 45. 10 Here the Czech Republic relies on judgment of 20 January 2005, Noteboom, C‑101/04, EU:C:2005:51, paragraph 29. 11 The Slovak Republic refers to the judgment of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraphs 32 and 33. 12 The Slovak Republic refers to the judgment of 16 December 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 56. 13 The Slovak Republic relies on the judgments of 20 January 2005, Noteboom, C‑101/04, EU:C:2005:51, paragraph 27, and of 16 September 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 56. 14 The Slovak Republic refers to the judgments of 5 July 1983, Valentini, 171/82, EU:C:1983:189, paragraph 14, and of 16 December 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 55. 15 Judgment of 5 July 1983, Valentini, 171/82, EU:C:1983:189, paragraph 14. 16 The Slovak Republic refers to the judgment of 16 September 2004, Baldinger, C‑386/02, EU:C:2004:535. 17 The Commission refers to judgments of 20 January 2005, Noteboom, C‑101/04, EU:C:2005:51, paragraphs 25 to 29; of 16 December 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 55; and of 30 May 2018, Czerwinski, C‑517/16, EU:C:2018:350, paragraphs 33 and 34 and the case-law cited. 18 Regulation of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1). 19 The Commission refers to judgments of 31 May 1979, Even and ONPTS, 207/78, EU:C:1979:144; of 27 September 1988, Matteucci, 235/87, EU:C:1988:460, paragraph 16; and of 16 September 2004, Baldinger, C‑386/02, EU:C:2004:535, paragraphs 17 to 19. 20 Judgment of 26 October 2016, C‑192/05, EU:C:2006:676, paragraphs 16, 30 and the operative part. 21 The situation arising in the main proceedings is therefore fundamentally different from that considered by the Court in its judgment of 22 June 2011, Landtová, C‑399/09, EU:C:2011:415. 22 See e.g. judgment of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraph 63. 23 Judgments 30 May 2018, Czerwinski, C‑517/16, EU:C:2018:350, paragraph 33 and the case-law cited., and of 25 July 2018, A, C‑679/16, EU:C:2018:601, paragraph 31 24 Judgment of 30 May 2018, Czerwiński, C‑517/16, EU:C:2018:350, paragraph 34 and the case-law cited. 25 Judgment of 14 March 2019, Dreyer, C‑372/18, EU:C:2019:206, paragraph 32 and the case-law cited. 26 Judgment of 16 September 2015, Commission v Slovak Republic, C‑361/13, EU:C:2015:601, paragraph 54. 27 Judgment of 16 September 2015, Commission v Slovak Republic, C‑361/13, EU:C:2015:601. 28 Judgment of 20 January 2005, C‑101/04, EU:C:2005:51, paragraph 27. 29 Under Article 4(1)(c) 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 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (OJ 1998 L 209, p. 1). This provision was repealed by Article 90 of Regulation No 883/2004. 30 See e.g. judgment of 27 March 1985, Hoeckx, 249/83, EU:C:1985:139, paragraphs 11, 12, and 14. 31 Cf. judgment of 29 April 2004, Skalka, C‑160/02,EU:C:2004:269, in which the payment in issue was a ‘special non-contributory benefit’ because it augmented a pension. 32 Judgment of 31 May 1979, Even and ONPTS, 207/78, EU:C:1979:144, paragraphs 23 and 24. See also judgment of 16 September 2004, Baldinger, C‑386/02, EU:C:2004:535, paragraphs 17 and 19. 33 Judgment of 27 March 1985, Hoeckx, 249/83, EU:C:1985:139, paragraph 20. 34 Cf. the situation considered by the Court in the judgment of 10 March 1993, Commission v Luxembourg, C‑111/91, EU:C:1993:92 on prescribed periods of residence in Luxembourg before child birth and maternity allowance could be paid. It affected all EU national women. 35 Judgment of 26 October 2006, Tas-Hagen and Tas, C‑192/05, EU:C:2006:676, paragraph 25. 36 Ibid., paragraph 28.