Judgment;Summary — ECLI:EU:C:2022:691
Date: 2022-09-15
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-58/21 – 1 
Case C-58/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
1 February 2021 
Referring court: 
Verwaltungsgericht Wien (Austria) 
Date of the decision to refer: 
21 January 2021 
Complainant: 
FK 
Respondent authority: 
Rechtsanwaltskammer Wien 
  
Subject matter of the main proceedings 
Social security – Applicable law – Lawyers – Retirement pension – Conditions for 
awarding it – Waiver of the right to practise as a lawyer in Austria and abroad 
Subject matter and legal basis of the request 
Interpretation of Regulation (EC) No 883/2004 of the European Parliament and of 
the Council of 29 April 2004 on the coordination of social security systems and 
examination of whether the pension provisions applicable in Austria to lawyers 
are compatible with EU law; Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. How is Article 13(2)(b) of Regulation (EC) No 883/2004 of the European 
Parliament and of the Council of 29 April 2004 on the coordination of social 
security systems to be interpreted where, from a quantitative point of view, 
the centre of interest of the activities of a person is in a non-Member State in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-58/21 
 
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which that person also resides and, furthermore, that person also pursues an 
activity in two Member States (Federal Republic of Germany and Austria), 
the activity in the two Member States being distributed in such a way that 
the bulk of the activity clearly takes place in one Member State (in this 
specific case, the Federal Republic of Germany)? 
In the event that that provision is interpreted to the effect that Austria has 
competence, [the following question] is [asked]: 
2. [Are] the provision of Paragraph 50(2)(2)(c)(aa) of the 
Rechtsanwaltsordnung (Code of Lawyers) and the provision of 
Paragraph 26(1)(8) of the Satzung Teil A 2018 (2018 Statute for Part A) 
based thereon permissible under EU law or do they infringe EU law and the 
rights guaranteed under EU law by requiring, as a condition for the award of 
a retirement pension, that the right to practise law in Austria and abroad be 
waived (Paragraph 50(2)(2)(c)(aa)) or that the right to practise as a lawyer 
anywhere be waived (Paragraph 26(1)(8) of the 2018 Statute for Part A)? 
Provisions of EU law relied on 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 15, 
17, 20 and 21; 
TFEU: Articles 49 and 56; 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems: Articles 2, 3, 11, 13, 
50 and 87; 
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 
16 September 2009 laying down the procedure for implementing Regulation (EC) 
No 883/2004 on the coordination of social security systems: Articles 14, 45 and 
47. 
Provisions of national law relied on 
Rechtsanwaltsordnung (Code of Lawyers; ‘the RAO’): Paragraphs 49 and 50; 
Verordnung der Vertreterversammlung des Österreichischen 
Rechtsanwaltskammertages über die Versorgungseinrichtungen Teil A der 
österreichischen Rechtsanwaltskammern (Satzung Teil A 2018) (Regulation of the 
Assembly of Representatives of the Austrian Bar Association on the Pension 
Schemes in Part A of the Austrian Bars (2018 Statute for Part A)): Paragraph 26. 
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Brief presentation of the facts and procedure in the main proceedings 
1 The Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) is called 
on to deal with a complaint lodged by a lawyer (‘the complainant’) against a 
decision of the Rechtsanwaltskammer Wien (Vienna Bar, Austria). 
2 The complainant has both Polish and German nationality and has worked or is still 
partly working as a lawyer in three countries (Germany, Switzerland and Austria). 
3 His activities were initially concentrated in Germany and were then (and still are) 
concentrated in Switzerland. By contrast, he worked as a lawyer in Austria only to 
a comparatively small extent. Accordingly, the amount of time worked and 
turnover achieved there never exceeded 10% of his total working time and total 
turnover, respectively. 
4 The complainant was never resident in Austria. The centre of his private interests 
was in Germany from 1996 to 2007, and then in Switzerland. 
5 The complainant applied to the Vienna Bar for the award of an early retirement 
pension. In that application, he stated that he wished to waive only his right to 
practise law in Austria, but not his authorisations to practise in Germany and 
Switzerland. 
6 By its decision, the Vienna Bar rejected the complainant’s application for the 
award of an early retirement pension. It justified this on the ground that the 
complainant continued to work as a lawyer in Germany and Switzerland and that 
an essential condition for the award of an early retirement pension (see 
paragraph 7 below) was therefore not fulfilled. 
Essential arguments of the parties in the main proceedings 
7 The Vienna Bar takes the view that an early retirement pension can be granted in 
Austria only if the right to practise as a lawyer is waived worldwide. This follows, 
in particular, from Paragraph 26(1)(8) of the 2018 Statute for Part A. 
8 The complainant takes the view that this infringes EU law, in particular the 
freedom of establishment and the freedom to provide services. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 First of all, the first question is intended to clarify the applicable law. This is 
because it is questionable whether Austrian law is applicable at all. 
10 The applicable law depends, in essence, on the place where the activity is mainly 
carried out. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-58/21 
 
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11 For persons who normally pursue an activity as a self-employed person in two or 
three Member States, Article 13(2) of Regulation No 883/2004 stipulates the 
criteria to be used to determine the applicable legislation. Accordingly, a person 
covered by Article 13(2) is subject either to the legislation of his/her Member 
State of residence or, if he/she does not pursue a substantial part of his/her activity 
in that Member State, to the legislation of the Member State in which the centre of 
interest of his/her activities is situated. 
12 The complainant’s main place of residence is Switzerland, where he also pursues 
the bulk of his activities from a quantitative point of view. In addition to that, he is 
still active in two Member States (Germany and Austria), to a much lesser extent 
from a quantitative point of view, whereby the bulk of that activity is pursued in 
Germany. 
13 The question arises as to how Article 13(2)(b) of Regulation No 883/2004 is to be 
understood in a case such as the present one, in which both the centre of interest 
of a person’s activities and that person’s place of residence are situated outside a 
Member State, and a literal interpretation of that provision would mean that such a 
situation would not be subject to the legislation of any Member State. Should an 
interpretation of Article 13(2)(b) of Regulation No 883/2004 nevertheless lead to 
the application of the legislation of a Member State, it is unclear which legislation 
(that is to say, which Member State’s legislation) is applicable if the person 
concerned pursues his or her activity in several Member States in different 
quantities. 
14 If Austrian law is applicable, the second question seeks clarification as to whether 
Paragraph 50(2)(2)(c)(aa) of the Code of Lawyers – according to which 
entitlement to a pension is subject to the condition that ‘the right to practise law in 
Austria and abroad be waived’ – and the provision of Paragraph 26(1)(8) of the 
2018 Statute for Part A based thereon – according to which entitlement to a 
retirement pension is subject to the condition that ‘the right to practise as a lawyer 
anywhere be waived’ – are compatible with EU law. 
15 The reason for this is that those provisions could infringe, in particular, the 
freedom of establishment under Article 49 TFEU, since, in the present case, there 
is a cross-border element on the one hand and, on the other hand, the 
establishment of lawyers is hindered by the Austrian provisions in question. 
16 An infringement of the right to property under Article 17 of the Charter may also 
enter into consideration. The guarantee of the right to property under EU law also 
protects property interests in connection with social benefits provided for by law, 
such as pensions, in particular. Restrictions of the fundamental right to property 
require a legal basis and must be justified by objectives of general interest pursued 
by the Union and must be suitable for attaining the objective and proportionate. 
There are doubts as to whether all these conditions are met. 
RECHTSANWALTSKAMMER WIEN 
 
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17 Furthermore, the Austrian legislation could infringe the freedom to provide 
services under Article 56 TFEU, the right under Article 15 of the Charter to 
engage in work and to take up and pursue a freely chosen occupation, and the 
prohibition of discrimination under EU law.