Opinion of the Advocate General — ECLI:EU:C:2017:329
Date: 2017-05-03
Language of the case: Swedish
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Sweden

summary of the facts of the main proceedings in paragraph 29 above that, in order to calculate whether Mrs Zaniewicz-Dybeck was entitled to a guaranteed pension, the competent institution, first, applied, in accordance with Paragraph 25 of Chapter 67 SFB, to the amount to which she was entitled by way of graduated pension and supplementary pension, which form the basis of the calculation of the guaranteed pension, a pro rata method of calculation, which, as observed by the Advocate General, in essence, in points 45 and 46 of his Opinion, is similar to the method set out in Article 46(2)(a) and (b) of Regulation No 1408/71. Second, when carrying out the pro rata calculation required under Article 46(2) of the regulation, the competent institution, following the instructions, did not take account of the retirement pensions received by Mrs Zaniewicz-Dybeck in Poland but, as provided for in Article 47(1)(d) of the regulation, attributed an annual value to the income-based pension acquired by her in Sweden and then multiplied that amount by the maximum insurance period for the guaranteed pension, namely 40 years. It is clear from the order for reference that the result obtained by the calculation method described above was in excess of the income ceiling for the award of a guaranteed pension. 50 As is apparent from paragraph 48 above, such a method of calculation, based on Article 46(2) and Article 47(1)(d) of Regulation No 1408/71, is not permissible for the purpose of calculating a minimum benefit, such as the guaranteed pension at issue in the main proceedings. 51 The competent institution is required to calculate the guaranteed pension in accordance with Article 50 of Regulation No 1408/71, in conjunction with the provisions of national legislation, with the exception of Paragraph 25 of Chapter 67 SFB and the instructions. 52 The answer to the first question is therefore that Regulation No 1408/71 is to be interpreted as meaning that, when the competent institution of a Member State calculates a minimum benefit, such as the guaranteed pension at issue in the main proceedings, it is inappropriate to apply Article 46(2) or Article 47(1)(d) of the regulation. Such a benefit must be calculated in accordance with Article 50 of the regulation, in conjunction with the provisions of national law, without, however, applying national provisions, such as those in the main proceedings, providing for a pro rata calculation. The second question 53 By its second question, the referring court seeks to ascertain, in essence, whether Regulation No 1408/71 is to be interpreted as precluding the legislation of a Member State under which, when calculating a benefit such as the guaranteed pension at issue in the main proceedings, the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States. 54 As is apparent from the answer to the first question, a minimum benefit such as the guaranteed pension at issue in the main proceedings must be calculated in accordance with Article 50 of Regulation No 1408/71 and the relevant national legislation. 55 It is expressly stated in the national provisions concerning the guaranteed pension in the SFB, as set out, in particular, in paragraph 19 above, that obligatory retirement pensions under the legislation of other Member States which cannot to be equated to the guaranteed pension are to be included in the basis for the calculation of the guaranteed pension. It is therefore clear that, under the applicable national legislation, the competent institution of the Member State concerned must, when calculating the guaranteed pension, take account of retirement pensions received by the person concerned in other Member States. 56 Accordingly, it is necessary to determine whether Regulation No 1408/71, in particular Article 50 thereof, precludes the legislation of a Member State under which, when calculating whether a person is entitled to a minimum benefit, such as the guaranteed pension at issue in the main proceedings, the competent institution must take account of retirement pensions which the person concerned receives from another Member State. 57 It should be noted in that regard that it is established case-law that Article 50 of Regulation No 1408/71 covers cases where the periods of employment of the worker under the legislation of the States to which he was subject were relatively short, with the result that the total amount of benefits payable by those States does not provide a reasonable standard of living (judgments of 30 November 1977, Torri, 64/77, EU:C:1977:197, paragraph 5, and of 17 December 1981, Browning, 22/81, EU:C:1981:316, paragraph 12). 58 In order to remedy that situation, Article 50 of Regulation No 1408/71 provides that where the legislation of the State of residence makes provision for a minimum benefit, the benefit payable by that State will be increased by a supplement equal to the difference between the total benefits payable by the various Member States to whose legislation the worker was subject and that minimum benefit (judgment of 30 November 1977, Torri, 64/77, EU:C:1977:197, paragraph 6). 59 It follows, as the Advocate General observed in point 59 of his Opinion, that, for the purpose of calculating whether a person is entitled to a minimum benefit such as the guaranteed pension at issue in the main proceedings, Article 50 of Regulation No 1408/71 specifically provides that the actual amount of retirement pensions received by the person concerned from another Member State is to be taken into account. 60 Accordingly, the answer to the second question is that Regulation No 1408/71, in particular Article 50 thereof, is to be interpreted as not precluding the legislation of a Member State under which, when calculating a minimum benefit such as the guaranteed pension at issue in the main proceedings, the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States. Costs 61 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: 1. 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 Council Regulation (EC) No 1606/98 of 29 June 1998, is to be interpreted as meaning that, when the competent institution of a Member State calculates a minimum benefit, such as the guaranteed pension at issue in the main proceedings, it is not inappropriate to apply Article 46(2) or Article 47(1)(d) of the regulation. Such a benefit must be calculated in accordance with Article 50 of the regulation, in conjunction with the provisions of national law, without, however, applying national provisions, such as those in the main proceedings, providing for a pro rata calculation. 2. Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, and in particular Article 50 of that regulation, is to be interpreted as not precluding the legislation of a Member State under which, when calculating a minimum benefit such as the guaranteed pension at issue in the main proceedings, the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States. [Signatures] * Language of the case: Swedish.