Opinion of the Advocate General — ECLI:EU:C:2011:13
Date: 2011-01-13
Language of the case: German
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social security for migrant workers – Power of the Member States to organise their social security systems – Limits – Compliance with European Union law – Rules of the Treaty on freedom of movement for workers – Effect on benefits granted under the legislation of a single Member State (Arts 45 TFEU and 48 TFEU; Council Regulation No 1408/71) 2. Social security for migrant workers – Sickness insurance – Person in receipt of a pension in his Member State of origin and another in another Member State – Return to the Member State of origin on retirement (Council Regulation No 1408/71, Arts 15 and 27) 1. The aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid. The European Union legislation on the coordination of national social security legislations, taking account in particular of its underlying objectives, cannot, except in the case of an express exception in conformity with those objectives, be applied in such a way as to deprive a migrant worker or those claiming under him of benefits granted solely by virtue of the legislation of a single Member State. Those articles, and Regulation No 1408/71 adopted to implement them, are intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State. (see paras 74-76) 2. Articles 15 and 27 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1386/2001, must be interpreted as not precluding a person who draws retirement pensions from retirement insurance funds both of his Member State of origin and of the Member State in which he spent most of his working life, and has moved from that Member State to his Member State of origin, from continuing, by reason of optional continued affiliation to a separate care insurance scheme in the Member State in which he spent most of his working life, to receive a cash benefit corresponding to that affiliation, in particular where cash benefits relating to the specific risk of reliance on care do not exist in the Member State of residence, that being a matter for the national court to ascertain. If, contrary to that hypothesis, cash benefits relating to the risk of reliance on care are provided for under the legislation of the Member State of residence, but only at a lower level than that of the benefits relating to that risk from the other pension-paying Member State, Article 27 of Regulation No 1408/71, as amended, must be interpreted as meaning that such a person is entitled, at the expense of the competent institution of the latter State, to additional benefits equal to the difference between the two amounts. (see para. 88, operative part)