Opinion of the Advocate General — ECLI:EU:C:2014:122
Date: 2014-03-05
Language of the case: Bulgarian
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (First Chamber), 5 November 2014 1. Freedom of movement for persons — Freedom of establishment — Restrictions — National legislation which makes the award of an old-age pension subject to the prior condition of the discontinuance of the payment of social security contributions relating to an activity carried out in another Member State — Not permissible — No Justification (Art. 49 TFEU) 2. Social security — Migrant workers — Old-age and survivor's insurance — No possibility for the insured person to waive the rule relating to the aggregation of periods of contribution and insurance (Council Regulation No 1408/71, Arts 45, 46(2), 84a(1) and 94(2)) 1. Article 49 TFEU precludes legislation of a Member State which makes the award of an old-age pension subject to the prior condition of discontinuing the payment of social security contributions relating to activities carried out in another Member State. Such a discontinuance in the payment of contributions may be difficult, even impossible, for a worker exercising his freedom of movement or of establishment by carrying out an occupational activity as an employee or as a self-employed worker in another Member State. In particular, the administrative steps liable to flow from that discontinuance in another Member State could lead or even require such a worker to cease his occupational activity for an unpredictable period of time in order to be granted an old-age pension pursuant to that legislation. That discontinuance could call into question the pursuit, by a self-employed person, of his occupational activity and make his professional circumstances precarious given that, following the discontinuance, he would have no guarantee of being able to pursue his employment or of finding alternative employment. That discontinuance could also have, following that worker’s return to work, negative consequences on pay, career progression and prospects of promotion, such as for example, a loss of the rights to paid leave and a reduction in grade or seniority. It follows that such national legislation is liable to prevent or dissuade people who are entitled to an old-age pension under legislation of the Member State at issue from carrying out an occupational activity in another Member State and therefore constitutes an obstacle to freedom of movement and in particular the freedom of establishment referred to in Article 49 TFEU. Moreover, the mere formal requirement of discontinuance of that activity is not justified by an objective in the public interest whose achievement it is capable of ensuring, in as much as it relates, according to the Member State at issue, to a purpose which is non-existent, irrelevant and illogical, such that the requirement was repealed in the interim. There is no direct and necessary link between the payment of such a pension under the law of the relevant Member State and the termination of gainful occupational activities, given that an insured person retained the right to carry out an activity after the award of an old-age pension. (see paras 42-45, 47-50, operative part 1) 2. Articles 45, 46(2) and 94(2) of Regulation No 1408/71 must be interpreted as not permitting insured persons to choose that, for the purposes of determining rights acquired in a Member State, periods of insurance completed in another Member State prior to the date of application of that regulation in the first Member State are not taken into account. Article 94(2) of the regulation is mandatory. Neither the Member States, nor the competent authorities, nor the insured persons falling within its scope may derogate therefrom. Articles 45 and 46(2) of that regulation are also mandatory, since their wording does not confer any right to choose on an insured person who falls within the scope of those provisions. Consequently, the insured person cannot waive the application of those articles by not declaring, in the application for the award of the old-age pension to which he is entitled under the legislation of a Member State, the periods of insurance completed in another Member State That finding is supported by Article 84a(1) of Regulation No 1408/71, according to which the institutions and persons covered by that regulation have a duty of mutual information and cooperation to ensure the correct implementation of the regulation. In that regard, the persons concerned are to inform as soon as possible the institutions of the competent State and of the State of residence of any changes in their personal or family situation which affect their right to benefits under that regulation. It follows that the applicant for social security benefits is not entitled to present a fragmentary narrative of his employment or insurance history so as to secure financial advantage. (see paras 58-61, 63, operative part 2)