JUDGMENT OF THE COURT (Third Chamber)
15 December 2011 (*)
(Migrant workers – Social security – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons – Regulation (EEC) No 1408/71 – National of a Member State who has been pursuing a professional activity in Switzerland – Return to country of origin)
In Case C‑257/10,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Högsta förvaltningsdomstolen (formerly Regeringsrätten) (Sweden), made by decision of 27 April 2010, received at the Court on 25 May 2010, in the proceedings
Försäkringskassan
v
Elisabeth Bergström,
THE COURT (Third Chamber),
composed of K. Lenaerts, President of the Chamber, E. Juhász (Rapporteur), G. Arestis, T. von Danwitz and D. Šváby, Judges,
Advocate General: J. Mazák,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 4 May 2011,
after considering the observations submitted on behalf of:
–        Elisabeth Bergström, by U. Öberg and I. Otken Eriksson, advokater,
–        the Swedish Government, by K. Petkovska and A. Falk, acting as Agents,
–        the Finnish Government, by H. Leppo, acting as Agent,
–        the United Kingdom Government, by E. Jenkinson and L. Seeboruth, acting as Agents, and by R. Palmer, Barrister,
–        the European Commission, by V. Kreuschitz and J. Enegren, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 21 June 2011,
gives the following
Judgment
1        This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 72 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2), as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001 (OJ 2001 L 187, p. 1) (‘Regulation No 1408/71’), and of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21 June 1999 (OJ 2002 L 114, p. 6; ‘the Agreement’).
2        The reference has been made in proceedings between Ms Bergström, a Swedish national, and the Försäkringskassan (‘the National Social Insurance Office’) concerning the Försäkringskassan’s refusal to take into account, for the purposes of calculating the amount of family benefit provided for child‑rearing, the period of employment completed by Ms Bergström in Switzerland.
Legal context
European Union law
3        The preamble to the Agreement states:
‘[the Contracting Parties],
Convinced that the free movement of persons between the territories of the Contracting Parties is a key factor in the harmonious development of their relations,
Resolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community,
…’
4        Article 1 of the Agreement provides:
‘The objective of this Agreement, for the benefit of nationals of the Member States of the European Community and Switzerland, is:
(a)      to accord a right of entry, residence, access to work as employed persons, establishment on a self-employed basis and the right to stay in the territory of the Contracting Parties;
…
(d)      to accord the same living, employment and working conditions as those accorded to nationals’.
5        Article 2 of the Agreement, entitled ‘Non-discrimination’, states that ‘[n]ationals of one Contracting Party who are lawfully resident in the territory of another Contracting Party shall not, in application of and in accordance with the provisions of Annexes I, II and III to this Agreement, be the subject of any discrimination on grounds of nationality’.
6        Article 8 of the Agreement provides:
‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:
(a)      securing equality of treatment;
…
(c)      aggregating, for the purpose of acquiring and retaining the right to benefits, and of calculating such benefits, all periods taken into consideration by the national legislation of the countries concerned;
(d)      paying benefits to persons residing in the territory of the Contracting Parties;
…’
7        Article 1 of Annex II to the Agreement, entitled ‘Co-ordination of social security schemes’, is worded as follows:
‘1.      The Contracting Parties agree, with regard to the coordination of social security schemes, to apply among themselves the Community acts to which reference is made, as in force at the date of signature of the Agreement and as amended by section A of this Annex, or rules equivalent to such acts.
2.      The term “Member State(s)” contained in the acts referred to in section A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant Community acts.’
8        Paragraph 1 of Section A of Annex II to the Agreement provides, under the heading ‘Acts referred to’:
‘371 R 1408 …: Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the Community,
…’
9        Paragraph 1 of Article 3 of Regulation No 1408/71, which is entitled ‘Equality of treatment’, provides:
‘Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’
10      Under Article 13(2)(f) of Regulation No 1408/71:
‘[A] person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’
11      In Chapter 1, entitled ‘Sickness and maternity’, of Title III of Regulation No 1408/71, concerning special provisions relating to the various categories of benefits, Article 23 provides:
‘1.      The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings or on average contributions shall determine such average earnings or contributions exclusively by reference to earnings or contributions completed under the said legislation.
2.      The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings shall take account exclusively of the standard earnings or, where appropriate, of the average of standard earnings for the periods completed under the said legislation.
…’
12      In Chapter 7, entitled ‘Family benefits’, of Title III of that regulation, Article 72, which is entitled ‘Aggregation of periods of insurance, employment or self-employment’, provides:
‘Where the legislation of a Member State makes acquisition of the right to benefits conditional upon completion of periods of insurance, employment or self-employment, the competent institution of that State shall take into account for this purpose, to the extent necessary, periods of insurance, employment or self-employment completed in any other Member State, as if they were periods completed under the legislation which it administers.’
13      Article 89 of Regulation No 1408/71 states:
‘Special procedures for implementing the legislations of certain Member States are set out in Annex VI.’
14      Paragraph 1 of Part N of Annex VI to Regulation No 1408/71, entitled ‘Sweden’, states that, ‘[f]or the application of Article 72 of the Regulation, a person’s entitlement to parental benefit shall be determined by regarding insurance periods completed in another Member State as being based on the same average income as the Swedish insurance periods with which they are aggregated’. That provision was subsequently repealed by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 amending Regulation No 1408/71 (OJ 2006 L 392, p. 1).
National legislation
15      Chapter 3, entitled ‘Social insurance protection’, of the Swedish social insurance law (1999:799) (the Socialförsäkringslagen (1999:799)), includes the following provisions:
‘Article 1 - All persons resident in Sweden shall be insured for the following benefits as provided for in the [general insurance law (1962:381) (the Lagen om allmän försäkring (1962:381); “the general insurance law”)]:
1.      healthcare benefits, and so on, under Chapter 2 as regards benefits which are ruled on by the social insurance offices;
2.      parental benefit at the minimum level and the basic level;
3.      sick leave benefit and employment benefit in the form of guaranteed benefits;
…
Article 4 - All persons employed in Sweden shall be insured for the following benefits as referred to in the [general insurance law]:
1.      sick leave benefit and pregnancy benefit;
2.      parental benefit above the minimum level and temporary parental benefit;
3.      income-based sick leave benefit and income-based employment benefit;
…’
16      The general insurance law states, inter alia:
‘Chapter 3 - Sick leave benefit
Article 2 - The qualifying income for sick leave benefit is the annual monetary income which an insured person can be expected to earn until further notice for his own work in Sweden, either as an employee (salary), or otherwise (income from other gainful activity). … The qualifying income for sick leave benefit shall be decided by the insurance office. …
Where the insurance office does not possess all the necessary information, the calculation of the qualifying income for sick leave benefit shall be based on the information which that office is able to obtain from the insured person or his employer, or which may be gleaned from the tax return relating to the insured person’s income. Holiday pay above what should have been paid in salary for work performed during the corresponding period shall not be included in the calculation of the qualifying income for sick leave benefit.
Chapter 4 – Parental benefit
…
Article 6 - Full parental benefit shall be no less than SEK 60 per day (minimum level).
Parental benefit shall be paid for the first 180 days in an amount corresponding to the parent’s sick leave benefit, calculated as set out in the fifth paragraph, if that parent has, throughout the 240-day period preceding the actual or predicted date for giving birth, been insured for sick leave benefit above the minimum level, or should have been had the insurance office been aware of all the circumstances. Parental benefit for the first 180 days shall, however, always be paid at least at the level of SEK 150 per day (basic level) for full parental benefit. Any parent insured under Article 4 of Chapter 3 of [the social insurance law (1999:799)] may receive the benefit, provided that that parent satisfies the conditions referred to in the first sentence.
In addition to the provisions under the second paragraph, parental benefit shall be paid for:
–        210 days in an amount corresponding to the parent’s sick leave benefit, calculated as set out in the fifth paragraph, although the lowest level shall be the basic level; and for
–        90 days in an amount corresponding to the minimum level.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
17      Ms Bergström, a Swedish national, settled in Switzerland in January 1994 and was employed there until the birth of her daughter on 19 March 2002. She then returned to Sweden with her husband and her daughter on 1 September 2002. Her husband immediately took up employment in Sweden, while Ms Bergström remained unemployed in order to care for her daughter. She applied for parental benefit at the daily sick leave benefit level (‘PBDBL’) as from 16 March 2003, calculated on the basis of the income she had had from her employment in Switzerland.
18      The National Social Insurance Office decided to grant Ms Bergström basic parental benefit (‘BPB’), on the ground that she was not entitled to claim PBDBL because she had not been employed in Sweden for the 240 days before the birth, which would have entitled her to sick leave benefit above the basic level.
19      Ms Bergström contested that decision before the länsrätten i Stockholms län (Stockholm District Court). The länsrätten dismissed the action, holding that PBDBL was an employment-related benefit and that, in order to be entitled to PBDBL, the insured person had himself to be employed in Sweden at a time sufficiently close to the period in respect of which that benefit was claimed. It was accordingly not sufficient that the insured person’s spouse was employed in Sweden.
20      Ms Bergström then brought an appeal before the Kammarrätten i Stockholm (Court of Appeal, Stockholm) which, ruling on the substance, held that Ms Bergström fulfilled the duration requirement laid down by Swedish law concerning the 240 days’ employment, because of her work in Switzerland. Ms Bergström could therefore claim benefits at a level above the basic parental benefit, calculated on the basis of her work in Switzerland.
21      The National Social Insurance Office appealed against that judgment, claiming that the judgment of the länsrätten i Stockholms län should be upheld. Ms Bergström contended that that appeal should be dismissed.
22      For the referring court, it is not disputed that Ms Bergström is covered by Swedish law under Article 13(2)(f) of Regulation No 1408/71, even though she is not employed in Sweden. However, she does not satisfy the conditions laid down by national law for being able to claim PBDBL.
23      The condition relating to being employed in Sweden for at least 240 consecutive days prior to childbirth so as to be able to be insured for sick leave benefits has not been met. The question is whether the period of employment in Switzerland should be regarded as satisfying that condition.
24      In addition, Ms Bergström has not been employed and has not received income which, under national law, makes it possible to establish the qualifying income for the granting of daily benefits. The question is whether the income from her work in Switzerland should be taken into account when applying those provisions.
25      In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1.      Under European Union law, in particular [the Agreement] and Article 72 of [Regulation No 1408/71], can a qualification period for family benefit in the form of income-related benefit for childcare be completed in its entirety through employment and insurance in Switzerland?
2.      Under European Union law, in particular [the Agreement] and Articles 3(1) and 72 of Regulation No 1408/71, is income earned in Switzerland to be equated with domestic income in the determination of entitlement to family benefit in the form of income-related benefit for childcare?’
Consideration of the questions referred
Preliminary observations
26      If it is to be possible to answer the questions referred, the situation at issue before the referring court must fall within the scope of the Agreement. In that regard, it should be noted that Ms Bergström’s situation is that of a worker who is a national of a Member State of the European Union and who, having been employed in the territory of another Contracting Party, returns to his Member State of origin, where, on the basis of having been thus employed, he applies for a family benefit provided for under that the legislation of that Member State.
27      Regarding the scope of the Agreement, it should first be noted that the second sentence in the preamble to the Agreement states that the Contracting Parties are ‘[r]esolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community’.
28      That freedom of movement would be impeded if a national of a Contracting Party were to be placed at a disadvantage in his country of origin solely for having exercised his right of movement.
29      Secondly, it should be borne in mind that Article 8 of the Agreement states that the Contracting Parties are to make provision, in accordance with Annex II to that Agreement, for the coordination of social security systems with the aims specified in that article. That provision does not refer, either directly or indirectly, to any requirement relating either to the place of residence of those persons to whom those social security provisions would apply or to the designation of the Contracting Party which would apply them.
30      One of the aims of Article 8, as set out in point (a) thereof, is ‘equality of treatment’. The general and explicit reference to that principle shows that, within the scope of Article 8 of the Agreement, that principle is to apply independently of Article 2 thereof, which makes application of the principle of non‑discrimination conditional upon the beneficiary being resident in the territory of the other Contracting Party.
31      Thirdly, paragraph 1 of Section A of Annex II to the Agreement provides for the application, as between the Contracting Parties, of Regulation No 1408/71, subject to certain adaptations which are not relevant, however, for analysing the question referred. Article 1(2) of that Annex states that the term ‘Member State(s)’ contained in the acts referred to in Section A of the Annex are to be understood to include Switzerland, in addition to the States covered by the relevant Community acts.
32      Lastly, it should be borne in mind that Regulation No 1408/71 applies not only to family benefits, but also to other benefit categories, including, for example, old-age benefits.
33      It follows that, without the application of the aggregation rule after the return of a worker to his country of origin, the coordination of the social security system in the Swiss Confederation with those of the Member States of the European Union would be precluded in a not insignificant number of situations, inter alia as regards the award of old-age benefits.
34      In those circumstances, it must be held that both the Agreement and Regulation No 1408/71 apply to the situation of a worker such as that described in paragraph 26 above.
The first question
35      By its first question the referring court asks, in essence, whether, under the Agreement and Regulation No 1408/71, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or self-employment, the competent institution of that Member State must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
36      It is clear from the case-file submitted to the Court that, according to the national legislation, in order to claim PBDBL, Ms Bergström must prove that she was employed throughout the 240-day period before she gave birth. Ms Bergström completed the whole of that qualifying employment period in the Swiss Confederation.
37      It is not disputed that the benefit applied for by Ms Bergström is a family benefit within the meaning of Article 1(u)(i) of Regulation No 1408/71.
38      In order to answer the question referred, it is necessary to interpret Article 8(c) of the Agreement and Article 72 of Regulation No 1408/71, which, for the award of the benefit concerned, provide for the application of the ‘aggregation’ rule.
39      On the basis of the use of the term ‘aggregation’, some of the interested parties who have submitted observations to the Court claim that, logically, that concept requires the existence of at least two periods of employment, completed in more than one Member State. Accordingly, it is open to the Member State in which the institution competent to award the benefit is located to provide, for those purposes, that one period of employment must have been completed in its territory, thereby making it impossible for a single period completed in another Member State to count towards obtaining a right to a social security benefit.
40      That interpretation cannot be upheld.
41      The wording both of Article 8(c) of the Agreement and of Article 72 of Regulation No 1408/71 is completely unambiguous. Under Article 8(c) of the Agreement, aggregation includes ‘all periods’ taken into consideration by the national legislation of the countries concerned, while Article 72 of Regulation No 1408/71 requires ‘periods of insurance, employment or self-employment completed in any other Member State’ to be taken into account in the course of aggregation, as if they were periods completed under the legislation of the competent institution.
42      It should be borne in mind that Regulation No 1408/71 was adopted on the basis of Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and, subsequently, after amendment, Article 42 EC), which empowered the Council of the European Union to adopt such measures in the field of social security as were necessary to provide freedom of movement for workers, making arrangements to that end to secure the aggregation for migrant workers and their dependants, for the purposes of acquiring and retaining the right to benefit and of calculating the amount of benefit, of ‘all periods’ taken into account under the laws of the several countries.
43      That interpretation is consistent with the aim of the Agreement, which is to ensure the free movement of persons between the Swiss Confederation and the Community. It is also consistent with the principle of equal treatment laid down in Article 8(a) of the Agreement, given that it is aimed at ensuring that the exercise of the right to freedom of movement does not have the effect of depriving a migrant worker of social security advantages, as compared with other workers who have not exercised that right.
44      Accordingly, the institution of a Member State which is competent to award a family benefit would not be able to demand that an insurance period must have been completed in its own territory in addition to a period of employment or self-employment completed in another State – in the present case, in Switzerland.
45      Consequently, the answer to the first question is that, under Article 8(c) of the Agreement and Article 72 of Regulation No 1408/71, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or self‑employment, the institution of that Member State which is competent to make such an award must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
The second question
46      By its second question the referring court asks, in essence, whether – in the event that the first question is answered in the affirmative – the Agreement and Regulation No 1408/71 have the effect of assimilating income received in Switzerland with the domestic income which, in Sweden, serves as a basis for calculating the amount of the family benefit sought.
47      It emerges from the case-file submitted to the Court that Ms Bergström applied for a family benefit equal in value to those daily benefits which are fixed in accordance with the rules governing sickness insurance (PBDBL). The family benefit in question is linked to the annual income of the socially insured person.
48      In such circumstances, account must therefore be taken, in order to calculate the amount of family benefits for that particular category, of the relevant rules laid down in Regulation No 1408/71 concerning the ‘sickness’ provision of social security.
49      Those rules are set out in Article 23 of Regulation No 1408/71. Irrespective of whether the qualifying income for calculating cash benefits is determined by applying Article 23(1) or Article 23(2), that income is established either by reference to earnings during periods completed under the legislation of the competent institution, or by reference to standard earnings or, where appropriate, the average of standard earnings for the periods completed under that legislation, that is to say, in the present case, under Swedish law.
50      Such an approach is consistent with the rule laid down in paragraph 1 of Part N of Annex VI to Regulation No 1408/71 – applicable ratione temporis in the present case – which states that, for the application of Article 72 of that regulation, a person’s entitlement to parental benefit is to be determined by regarding insurance periods completed in another Member State as being based on the same average income as insurance periods completed in Sweden.
51      However, in the case in the main proceedings, Ms Bergström was not in receipt of any income in Sweden during the 240-day qualifying period.
52      In such circumstances, in order for Article 8(c) of the Agreement and Article 72 of Regulation No 1408/71, as interpreted in paragraph 45 above, to be effective, and in order to satisfy the equal treatment requirement under Article 8(a) of the Agreement and Article 3(1) of the regulation, Ms Bergström’s qualifying income must be calculated by taking into account the income of a person who is employed, in Sweden, in a situation comparable to her situation and who also has professional experience and qualifications comparable to her professional experience and qualifications.
53      Consequently, the answer to the second question is that Article 8(a) of the Agreement and Article 3(1), Article 23(1) and (2) and Article 72 of Regulation No 1408/71, and paragraph 1 of point N of Annex VI thereto must be interpreted as meaning that, where the amount of a family benefit, such as that at issue in the case before the referring court, falls to be determined in accordance with the rules governing sickness benefit, that amount – awarded to a person who has completed in full the necessary employment periods for acquiring that right in the territory of the other Contracting Party – must be calculated by taking into account the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit is sought.
Costs
54      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1.      Article 8(c) of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21 June 1999, and Article 72 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as meaning that, where the legislation of a Member State makes the award of a family benefit – such as that at issue in the case before the referring court – conditional upon completion of periods of insurance, employment or self-employment, the institution of that Member State which is competent to make such an award must take into account for those purposes periods completed in their entirety in the Swiss Confederation.
2.      Article 8(a) of that Agreement, and Article 3(1), Article 23(1) and (2) and Article 72 of Regulation No 1408/71, as amended by Regulation No 1386/2001, and paragraph 1 of point N of Annex VI thereto must be interpreted as meaning that, where the amount of a family benefit, such as that at issue in the case before the referring court, falls to be determined in accordance with the rules governing sickness benefit, that amount – awarded to a person who has completed in full the necessary employment periods for acquiring that right in the territory of the other Contracting Party – must be calculated by taking into account the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit is sought.
[Signatures]
** Language of the case: Swedish.