Opinion of the Advocate General — ECLI:EU:C:2011:111
Date: 2011-03-03
Language of the case: Czech
Subject matter: Social security for migrant workers;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary of the Judgment 1. Social security for migrant workers – Community legislation – Agreement between the Czech Republic and the Slovak Republic before their accession in connection with the dissolution of the Czech and Slovak Federal Republic – Old-age pension – Taking into account of periods of insurance completed before dissolution (Council Regulation No 1408/71, Annex III(A)(6) and Art. 7(2)(c)) 2. Social security for migrant workers – Equal treatment – Legislation of a member State permitting payment of a supplement to old-age benefit solely to its own nationals residing in its territory – Not permissible – Effects (Council Regulation No 1408/71, Arts 3(1) and 10) 1. The provisions of point 6 of Annex III(A) to Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 629/2006, read in conjunction with Article 7(2)(c) thereof, do not preclude a national rule which provides for payment of a supplement to old-age benefit when the amount of that benefit, granted pursuant to Article 20 of the bilateral agreement between the Czech Republic and the Slovak Republic signed on 29 October 1992 as a measure to regulate matters after the dissolution of the Czech and Slovak Federal Republic, is lower than that which would have been received if the retirement pension had been calculated in accordance with the legal rules of the Czech Republic. Given that such an adjustment takes place only when the amount of old-age benefit is higher than that obtained under the provisions of the Agreement, what is at issue is not the award of a parallel Czech old-age benefit, nor one and the same period of insurance’s being taken into account twice, but merely the elimination of an objectively established difference between benefits from different sources. (see paras 37-38, 40, operative part 1) 2. The combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 629/2006, preclude a national rule which allows payment of a supplement to old-age benefit solely to Czech nationals residing in the territory of the Czech Republic, but it does not necessarily follow, under European Union law, that an individual who satisfies those two requirements should be deprived of such a payment. First, such a rule directly discriminates on the ground of nationality. Second, that rule involves a condition of residence which essentially affects migrant workers who reside in the territory of Member States other than their State of origin. Accordingly, that rule is in breach of the principle of equality of treatment, as referred to in the said Article 3(1), which prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result. As regards the consequences in practice for persons disadvantaged by the application of that rule, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category, the latter arrangements, for want of the correct application of European Union law, being the only valid point of reference remaining. As regards the implications for persons in the category of those placed at an advantage by that discrimination, while European Union law does not, provided that the general principles of European Union law are respected, preclude measures to re‑establish equal treatment by reducing the advantages of the persons previously favoured, nonetheless, before such measures are adopted, there is no provision of European Union law which requires that a category of persons who already benefit from supplementary social protection should be deprived of it. (see paras 43-44, 46, 49, 51, 53-54, operative part 2)