Opinion of the Advocate General — ECLI:EU:C:2012:114
Date: 2012-03-01
Language of the case: German
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social security – Regulations No 883/2004 and No 987/2009 – Temporal application (European Parliament and Council Regulations No 883/2004, Art. 87(1) and No 987/2009, Arts 44, 93 and 97) 2. Social security – Power of the Member States to organise their social security systems – Limits – Observance of European Union law – Treaty rules on the free movement of Union citizens (Art. 21 TFEU) 3. Citizenship of the Union – Right to move and reside freely on the territory of the Member State – Old-age pension – Obligation to take into account, for the purpose of granting an old-age pension, of child-raising periods completed in another Member State – Person having temporarily resided in that other Member State without pursuing an activity as an employed or self-employed person (Art. 21 TFEU) 1. Article 44 of Regulation No 987/2009 laying down the procedure for implementing Regulation No 883/2004 on the coordination of social security systems is not applicable to a refusal to credit child-raising periods for the purpose of an old-age pension adopted before the entry into force of Regulation No 987/2009. By Article 97 of that regulation, the legislature fixed the entry into force of that regulation at 1 May 2010 and there is nothing in the recitals in the preamble thereto or any other provision of that regulation which can be construed as meaning that Article 44 thereof is to take effect from a point in time before that measure was published. On the contrary, it is apparent from Article 87(1) of Regulation No 883/2004, which applies to situations governed by Regulation No 987/2009 pursuant to Article 93 of that regulation, that it does not give rise to any entitlement for the period prior to the date of its application, namely 1 May 2010. (see paras 26, 27) 2. See the text of the decision. (see para. 38) 3. In a situation where a person temporarily established his or her residence in a Member State other than his or her Member State of origin, Article 21 TFEU must be interpreted as meaning that it requires the competent institution of the Member State of origin, for the purposes of granting an old-age pension, to take account of child-raising periods completed in another Member State as though those periods had been completed on its national territory by a person who pursued employed or self-employed activity only in that first Member State and who, at the time of the birth of his or her child, had temporarily stopped working and had, solely on family-related grounds, established his or her place of residence in the territory of the second Member State. National legislation which does not provide for such an obligation places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State and thereby gives rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move. (see paras 42, 45 and operative part)