Opinion of the Advocate General — ECLI:EU:C:2000:590
Date: 2000-10-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 
1. Social security for migrant workers — Community rules — Persons covered — 
Retired civil servant receiving a pension from a Member State other than the one in 
which he resides — Subjection in State of residence to laws relating to Regulation 
No 1408/71 — Whether covered — Freedom of movement for workers — 
Regulation No 1612/68 not applicable 
(Council Regulations Nos 1612/68 and 1408/71) 
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SUMMARY — CASE C-389/99 
2. Social security for migrant workers — Sickness insurance — Persons entitled to a 
pension under the legislation of a Member State other than the country of residence — 
Right to benefits in kind in country of residence — Expression 'nor is any pension 
payable' in Article 28a of Regulation No 1408/71 — Scope 
(Council Regulation No 1408/71, Art. 28a) 
3. Social security for migrant workers — Sickness insurance — Contributions payable 
by pensioners — Levying by the State of residence of contributions to cover benefits 
with purpose similar to that of benefits for which the Member State paying the pension 
has assumed responsibility — Not permissible 
(Council Regulation No 1408/71, Art. 33) 
4. Social security for migrant workers — Sickness insurance — Pensions payable under 
the legislation of a Member State other than the country of residence — Right to 
benefits in kind in country of residence — Contributions which may be required from 
pensioners — States concerned reciprocally waiving reimbursement of the costs of 
benefits in kind — No effect 
(Council Regulation No 1408/71, Arts 28a, 33(2) and 36(3)) 
1. Regulation No 1408/71, as amended 
and u p d a t e d by R e g u l a t i o n 
No 2001/83, as last amended at the 
ma te r i a l t ime by Regu la t ion 
No 3096/95, applies to a person who, 
at the time when the Regulation 
entered into force in a Member State: 
— was resident in that State but was 
not carrying on an occupational 
activity and was receiving a pension 
there from another Member State in 
his capacity as a retired civil servant, 
— while being subject in his State of 
residence to laws relating to the 
branches of social security referred 
to in the Regulation. 
However, Regulation No 1612/68 on 
freedom of movement for workers 
within the Community does not apply 
in principle to a person who has moved 
his place of residence from one Mem­
ber State, in which he had ceased to be 
in employment, to another Member 
State, in which he is not employed and 
is not seeking employment. 
(see para. 35 and operative part 1) 
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RUNDGREN 
2. The expression 'nor is any pension 
payable' in Article 28a of Regulation 
No 1408/71, as amended and updated 
by Regulation No 2001/83 , as 
amended by Regulation No 3096/95, 
must be interpreted as applying to a 
situation in which neither a pension 
based on residence nor a pension based 
on gainful employment and payable 
under the legislation of the Member 
State in which the person concerned is 
resident is actually paid to that person, 
without its being necessary to ascertain 
whether he might hypothetically be 
entitled thereto. 
(see para. 50 and operative part 2) 
3. The general principle resulting from 
Regulation No 1408/71, as amended 
and u p d a t e d by R e g u l a t i o n 
No 2001/83, as amended by Regula­
tion No 3096/95, and applied by Art­
icle 33 of that Regulation, according to 
which a person entitled to a pension 
cannot, by reason of his residence in 
the territory of a Member State, be 
called upon to pay compulsory insur­
ance contributions to cover benefits for 
which an institution of another Mem­
ber State has assumed responsibility, 
precludes the Member State in whose 
territory he resides from requiring him 
to pay contributions or similar pay­
ments prescribed by its legislation to 
cover old-age, invalidity and unem­
ployment benefits, where he is entitled 
to benefits having a similar purpose, 
for which the institution of the Mem­
ber State competent in respect of pen­
sions assumes responsibility. 
(see para. 57 and operative part 3) 
4. The fact that the Republic of Finland 
and the Kingdom of Sweden have 
waived, under Article 36(3) of Regula­
tion No 1408/71, as amended and 
updated by Regulation No 2001/83, 
as a m e n d e d by R e g u l a t i o n 
No 3096/95, and Article 23 of the 
Nordic Convention on Social Security 
of 15 June 1992 (106/93), all reimbur­
sement of the costs of benefits in kind 
provided by an institution in one of the 
Member States on behalf of an institu­
tion of another Member State is of no 
consequence for the purposes of inter­
preting (i) Article 28a of the regulation 
concerning pensions under the legisla­
tion of one or more Member States 
other than the country of residence and 
a right to benefits in kind in the 
country of residence and (ii) Art­
icle 33(2) of the regulation relating to 
the contributions which may be 
required from pensioners. 
(see para. 64 and operative part 4) 
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