Opinion of the Advocate General — ECLI:EU:C:2013:406
Date: 2013-06-19
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 10 October 2013 1. Social security — Migrant workers — Legislation applicable — Sickness insurance — Entitlement to pensions under the legislation of Member States other than the country of residence — Legislation to which the pensioner has been subject for the longest period of time — Concept — Legislation concerning pensions (Council Regulation 1408/71, Arts 28(2)(b) and 33; Council Regulation No 574/72, Art. 95) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — No need to adjudicate (Art. 267 TFEU) 1. Article 28(2)(b) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purpose of that provision, refers to legislation concerning pensions. Under Articles 27, 28 and 28a of that regulation, the institution of the place of residence provides the benefits in kind to the pensioners on behalf of the institution of one of the Member States competent in respect of pensions, which bears the costs. The result is that the system put in place by those articles establishes a connection between the jurisdiction to provide pensions and the obligation to bear the cost of benefits in kind in respect of sickness and maternity, since that obligation is incidental to actual jurisdiction in respect of pensions. Such a system is capable of preventing Member States whose legislation confers a right to receive benefits in respect of sickness and maternity from being penalised merely by virtue of residence in their territory. That interpretation is, moreover, corroborated by Article 33 of Regulation No 1408/71 and Article 95 of Regulation No 574/72 laying down the procedure for implementing Regulation No 1408/71. Thus, the first of those provisions authorises the Member State responsible for payment of a pension and which applies legislation providing for deductions from pensions to cover sickness and maternity benefits to make such deductions from the pension payable by it, where it is responsible for payment of those benefits in the pensioner’s State of residence. In so far as concerns Article 95 of Regulation No 574/72, it is clear from that provision that benefits in kind in respect of sickness and maternity paid to pensioners in their State of residence are, in any event, reimbursed by the Member State responsible for payment of the pension, which thus bears the essential risk linked to the provision of sickness benefits in kind in the Member State in which the pensioner resides. (see paras 46-48, 51, 52, 56, operative part) 2. See the text of the decision. (see paras 54, 55)