Opinion of the Advocate General — ECLI:EU:C:2016:77
Date: 2016-02-04
Language of the case: Dutch
Subject matter: Immigration and asylum policy;Social security for migrant workers;Free movement of workers;Anti-discrimination;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 27 October 2016 1. Social security — Migrant workers — Old-age insurance — Periods which can be taken into account — Period of insurance allegedly completed under the legislation of a Member State by a foreign worker who is a national of a Member State which acceded to the European Union after the completion of that period — Lawfulness (Council Regulation No 1408/71, Art. 94(1) and (2)) 2. Citizenship of the Union — Freedom of movement for persons — Workers — Restrictions — Seafarer who, over a specified period, was part of the crew of a vessel which had its home port in the territory of that Member State and who resided aboard that vessel without being a national of a Member State during that period — Legislation of that Member State excluding the seafarer from benefitting from old-age insurance — Lawfulness (Arts 18 TFEU and 45 TFEU) 3. Social security — Migrant workers — EU rules — Scope ratione personae — Extension to nationals of third countries who do not benefit from this regulation by reason of their nationality — Employed person who was a national of a third country during a period of employment completed under the legislation of a Member State but falling within the scope of Article 1 of Regulation No 859/2003 at the time that an application of an old-age pension was made — Legislation of that Member State not taking account of that period for the determination of the pension rights of that worker — Lawfulness (Council Regulation No 859/2003, Art. 2(1) and (2)) 1. Article 94(1) and (2) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, must be interpreted as not precluding legislation of a Member State that does not take into account, when determining rights to old-age pension, an insurance period claimed to have been completed under its own legislation by a foreign worker when the State of which that worker is a national acceded to the European Union after the completion of that period. In order to be able to rely legitimately on Article 94(2) of Regulation No 1408/71, a claimant must be able to identify a period of insurance and, as the case may be, periods of employment or residence completed under the legislation of a Member State before 1 October 1972 or in the case of Member States which acceded to the European Union after that date, before the date of application of that regulation in the territory of the Member State concerned. However, the legislation mentioned above excluded the worker from benefiting from the old-age insurance, on the ground that he was a third-country national and resided aboard vessels for which he was a crew member. Such exclusion, although based on nationality, was not prohibited by the law of the European Union at the time of the facts at issue, since that country had not yet acceded to the Union. (see paras 56, 64, 66, operative part 1) 2. Articles 18 TFEU and 45 TFEU must be interpreted as not precluding legislation of a Member State, under which a seafarer who, over a specified period, was part of the crew of a vessel which had its home port in the territory of that Member State and who resided aboard that vessel, is excluded from benefiting from old-age insurance in respect of that period on the ground that he was not a national of a Member State during that period. Nothing in the Act of Accession of the country of which the seafarer is a national requires the existing Member States to treat nationals of that country in the same way as they treated nationals of the other Member States prior to accession of that country to the European Union. (see paras 71, 73, operative part 2) 3. Article 2(1) and (2) of Regulation No 859/2003 extending the provisions of Regulation No 1408/71 and Regulation No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, must be interpreted as not precluding legislation of a Member State which provides that a period of employment, which was completed pursuant to the legislation of that Member State by an employed worker who was not a national of a Member State during that period but who, when he requests the payment of an old-age pension, falls within the scope of Article 1 of that regulation, is not to be taken into consideration by that Member State for the determination of that worker’s pension rights. (see para. 79, operative part 3)