Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 18 December 2025 (1)
Case C‑717/24
BD
v
Sociálna poisťovňa, ústredie
(Request for a preliminary ruling from the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic))
( Reference for a preliminary ruling – Social security schemes – Regulation (EC) No 883/2004 – Retirement pension – Conditions for granting – Special rules on aggregation of periods – Article 51(1) – National legislation providing for more favourable treatment for certain categories of persons engaged in specific occupations )
Introduction
1.        The request for a preliminary ruling was made by the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic) in the context of a dispute between BD, the applicant in the main proceedings, and Sociálna poisťovňa, ústredie (Social Insurance Fund, Central Administration, Slovakia) (‘the Slovak Social Insurance Fund’), concerning the refusal of BD’s application to receive a retirement pension, in respect of his work as a miner in a deep mine, from the age of 55.
2.        The present case thus gives the Court an opportunity, for the first time, to interpret Article 51(1) of Regulation (EC) No 883/2004, (2) on the aggregation of periods for the determination of entitlement to an old-age pension in cases where the legislation of a Member State, without providing for a special scheme distinct from the general social security scheme, nevertheless reserves the application of special rules to certain activities or certain occupations.
Legal framework
European Union law
3.        Article 48 TFEU provides:
‘The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self-employed migrant workers and their dependants:
(a)      aggregation, for the purpose 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;
…’
4.        According to recital 1 of Regulation No 883/2004:
‘The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment.’
5.        Recital 13 of that regulation states:
‘The coordination rules must guarantee that persons moving within the Community and their dependants and survivors retain the rights and the advantages acquired and in the course of being acquired.’
6.        Recital 45 of that regulation states that the objective of the proposed action is to adopt coordination measures to guarantee that the right to free movement of persons can be exercised effectively.
7.        Article 6 of that regulation, entitled ‘Aggregation of periods’, is worded as follows:
‘Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes:
–        the acquisition, retention, duration or recovery of the right to benefits,
…
conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies.’
8.        Article 51 of Regulation No 883/2004, entitled ‘Special provisions on aggregation of periods’, provides, in paragraph 1:
‘Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in a specific activity as an employed or self-employed person or in an occupation which is subject to a special scheme for employed or self-employed persons, the competent institution of that Member State shall take into account periods completed under the legislation of other Member States only if completed under a corresponding scheme or, failing that, in the same occupation, or where appropriate, in the same activity as an employed or self-employed person.
If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of the benefits of a special scheme, these periods shall be taken into account for the purposes of providing the benefits of the general scheme or, failing that, of the scheme applicable to manual or clerical workers, as the case may be, provided that the person concerned had been affiliated to one or other of those schemes.’
Czechoslovak law
9.        Paragraph 1 of Zákon č. 100/1988 Zb. o sociálnom zabezpečení (Law No 100/1988 on social security) of 16 June 1998 (‘Law No 100/1988’), entitled ‘Basic principles’, provided, in the version applicable from 1 October 1988 to 31 May 1992:
‘…
(2)      Every citizen shall have the right to social security under this Law. The State shall provide social security benefits and services.
…
(4)      The amount of retirement benefits shall depend primarily on the merits of the employment, that is to say the length of the period of employment … and the category of work performed.’
10.      Paragraph 14 of Law No 100/1988 was worded as follows:
‘(1)      For pension purposes, jobs shall be divided into three categories according to the type of work performed.
(2)      Category I shall include jobs where predominantly hazardous activities are performed continuously and within a calendar month, where there is frequent and permanent deterioration of workers’ health due to exposure to harmful physical and chemical agents, including
(a)      mining jobs with a permanent underground workplace in deep mines,
(b)      other types of mining jobs where work is performed underground in deep mines, …
…
(4)      Category III shall include jobs which are not classified in categories I or II.’
11.      In accordance with Paragraph 21 of that law, entitled ‘Conditions for entitlement to a retirement pension’:
‘(1)      A citizen shall be entitled to a retirement pension if he or she has been employed for at least [25] years and reached the age of at least
(a)      55, provided that he or she has been employed for at least 15 years in an occupation referred to in Paragraph 14(2)(a) …,
…’
12.      Law No 100/1988 was amended by Zákon č. 235/1992 Zb. o zrušení pracovných kategórií a o niektorých ďalších zmenách v sociálnom zabezpečení (Law No 235/1992 abolishing employment categories and making certain further changes to social security) of 28 April 1992 (‘Law No 235/1992’), which entered into force on 1 June 1992.
13.      Paragraph 14(1) of Law No 100/1988, in the version thereof as amended by Law No 235/1992, provided:
‘For pension insurance purposes, until 31 December 1992, jobs shall be classified into three categories depending on the type of work performed. Category I and II jobs are set out in the sectoral lists of occupations classified in categories I and II published before 1 June 1992; jobs which do not fall into categories I or II shall be included in category III.’
14.      Under Paragraph 15 of that law:
‘For pension insurance purposes, jobs engaged in after 31 December 1992 shall be regarded as category III jobs.’
15.      Under Paragraph 175 of that law:
‘Entitlements arising from the classification of jobs in categories I and II or of services in categories I and II shall be taken into account until 31 December 2016.’
Slovak law
16.      Paragraph 65 of Zákon č. 461/2003 Z. z. o sociálnom poistení (Law No 461/2003 on social insurance) of 30 October 2003 (‘Law No 461/2003’) is worded as follows:
‘(1)      Insured persons are entitled to a retirement pension if they have paid pension contributions for at least 15 years and have reached retirement age.
(2)      The retirement age of insured persons shall be determined in accordance with Annex 3a, subject to Paragraph 274 of this Law …’
17.      Lastly, according to Paragraph 274 of that law:
‘(1)      Entitlements arising from the classification of jobs in categories I and II shall be maintained.
…’
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice
18.      The Czechoslovak federation was dissolved on 31 December 1992, giving rise to two separate states. Previously, in the legislation of the Czechoslovak federation, different occupations were classified into three categories, according to their level of risk. Work as a miner was classified as a category I occupation and miners were thus entitled to a retirement pension from the age of 55, provided that they had worked for 25 years, including 15 years underground in a deep mine. In 1992, Law No 100/1988 was amended by Law No 235/1992, pursuant to which those categories were to cease to exist on 31 December 1992 and all employees were to be classified under category III as from that date. That applied only to occupations engaged in after 31 December 1992, while entitlements arising from employment in category I or II occupations before that date were to be maintained until 31 December 2016.
19.      On 31 December 1992, in the Czech Republic, the federal law abolishing the categorisation of occupations entered into force. In the territory of Slovakia, on the other hand, the application of that law was postponed on several occasions, and the categorisation of occupations was not abolished until 31 December 1999.
20.      The applicant in the main proceedings is a Slovak national who worked from 1 July 1976 to 31 August 1995 as a miner in an underground mine in Karviná, in the territory of the present-day Czech Republic. He subsequently held various other jobs in the Czech Republic and then in Slovakia.
21.      In 2013, the applicant in the main proceedings, who was then 55 years old, applied for his retirement pension to be paid in Slovakia. The Slovak Social Insurance Fund rejected his application on the ground that he had not reached the qualifying age of 62. He was finally recognised as being entitled to a retirement pension from October 2020, when he reached the age of 62 years and 8 months, but the Slovak authorities maintained their position that he was not entitled to the retirement pension available under more advantageous conditions to persons who had worked as miners in deep mines for a period of 15 years.
22.      The Slovak Social Insurance Fund considered that, since the applicant had been working as a miner in a deep mine in the territory of the present-day Czech Republic, he could only claim a retirement pension from the age of 55 if he could prove that he had worked for 15 years in a category I occupation under the legislation of that Member State. However, on 31 December 1992, the date on which the abolition of employment categories in the Czech Republic entered into force, the person concerned had, according to the Slovak Social Insurance Fund, worked as a miner only for 14 years and 63 days.
23.      A dispute arose in that regard, in the context of which the applicant claimed that, in order to determine whether the condition of 15 years’ employment was satisfied, the Slovak Social Insurance Fund was required to take into account, as a period of employment in a category I job, the period from 1 January 1993 to 31 August 1995, during which he had continued to work as a miner in a deep mine in the Czech Republic, even though employment categories had been abolished in that Member State on 31 December 1992.
24.      Hearing an appeal brought by the applicant, the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic),
uncertain as to the interpretation of Article 51(1) of Regulation No 883/2004 on the aggregation of periods for the purpose of calculating a retirement pension where a special scheme or the application of special rules to certain activities is at issue, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘[(1)]      Must Article 51(1) of Regulation [No 883/2004] be interpreted as applying to an old-age pension the decision on which was adopted by the competent institution of a Member State, … only on condition that a “special scheme for employed or self-employed persons” is established under the legislation of that Member State[?]
… if so, what characterises such a “special scheme” (for example, the fact that it is administered by a separate institution, it is financed separately, or it is intended only for a particular group of employed or self-employed persons)[?]
(2)      [Must Article 51(1) of that regulation be interpreted as applying to such a pension] also where the legislation of that Member State does not provide for such a “special scheme”, but merely allows a particular group of persons who have completed periods of insurance solely in the context of a specific activity (for example, miners working in deep mines) to acquire the right, on the basis of such periods, to an old-age pension under more advantageous conditions than other persons who are otherwise employed or self-employed?’
25.      Written observations were submitted to the Court by the Italian and Polish Governments and by the European Commission.
Analysis
26.      Before analysing those questions, it seems to me that the applicability of Regulation No 883/2004 to the dispute in the main proceedings requires some explanation.
The applicability of Regulation No 883/2004
27.      I would point out that, as the Czech
Republic and the Slovak Republic joined the European Union on 1 May 2004, Regulation No 1408/71 entered into force for them on that date. (3) Regulation No 883/2004, which repealed and replaced Regulation No 1408/71, came into force for them on 20 May 2004 and is applicable from 1 May 2010. (4)
28.      BD’s application to the Slovak Social Insurance Fund for the grant of a retirement pension in 2013 was rejected, that rejection being the subject matter of the dispute in the main proceedings, before being accepted in 2020 when he was 62 years of age. (5) The periods of work concerned by the request for a preliminary ruling were completed on the territory of the present-day Czech Republic between 1 January 1993 and 31 August 1995.
29.      First, the fact that the contribution periods predate the accession of the Czech Republic and the Slovak Republic to the European Union does not seem to me to preclude the application of Regulation No 883/2004 to the circumstances at issue in the main proceedings.
30.      Indeed, the Court has previously
ruled, in relation to Regulation No 1408/71, that it was applicable to a situation in which the persons concerned had contributed to the public social security system of a Member State during a period prior to that State’s accession to the European Union and were entitled to rely on it from that date of accession. (6) In so far as Regulation No 883/2004 replaced Regulation No 1408/71 and did not substantively amend the provisions at issue, the case-law of the Court relating to Regulation No 1408/71 retains all its relevance for the interpretation of the provisions at issue of Regulation No 883/2004. (7) Consequently, the fact that the contribution periods predate the accession to the European Union of the Member States in question does not preclude the applicability of Regulation No 883/2004 to the situation at issue in the main proceedings, in which BD contributed to the pension system of the Czech Republic during a period prior to its accession to the European Union and may rely on it in relation to the Slovak Social Insurance Fund from that date of accession.
31.      Secondly, it is true that the contribution periods at issue predate the entry into force of Regulation No 883/2004. However, Article 87(2) of that regulation provides, as did, mutatis mutandis, Regulation No 1408/71, (8) that ‘any period of insurance and, where appropriate, any period of employment, self-employment or residence completed under the legislation of a Member State prior to the date of application of this Regulation in the Member State concerned shall be taken into consideration for the determination of rights acquired under this Regulation’. In that regard, although new legislation is generally valid only for the future, it also applies, according to a generally recognised principle, in the absence of a provision to the contrary, to the future effects of situations which arose during the period of validity of the old law. (9)
32.      I therefore consider that Regulation No 883/2004 is applicable to the circumstances at issue in the main proceedings.
The interpretation of Article 51(1) of Regulation No 883/2004
33.      The dispute in the main proceedings concerns the refusal of the Slovak Social Insurance Fund to take into account the contribution period corresponding to the job held by BD in the Czech Republic between 1 January 1993 and 31 August 1995, on the ground that that period could not be taken into account as category I employment under the legislation in force in Slovak law because it was not regarded as category I employment under Czech legislation. (10) Indeed, category I had been abolished in the Czech Republic on 31 December 1992. Since the work performed during that period did not fall into category I under Czech legislation, the Slovak Social Insurance Fund considered that BD had completed less than 15 years in that category of employment, and therefore the Slovak provision allowing him to retire at the age of 55 was not applicable to him.
34.      According to the referring court, the general purpose of Article 51 of Regulation No 883/2004, concerning the aggregation of periods, is to ensure that the advantages conferred by the legislation of a Member State on the performance of certain specific activities are linked to those activities even if the person concerned performs them in another Member State.
35.      However, that court considers that the conditions for taking those advantages into account are unclear.
36.      I would point out at the outset that the questions referred do not concern the principle that the Slovak Republic takes into account the contribution periods of the applicant in the main proceedings in the Czech Republic, but rather whether the periods at issue must be taken into account in respect of a category I activity for the purposes of calculating the 15-year period of employment as a miner working in a deep mine required by Slovak legislation in order to receive a retirement pension from the age of 55.
37.      As the referring court states in its request for a preliminary ruling, the applicable legislation (Law No 100/1988 and Law No 461/2003) did not create a separate scheme which applied only to miners working in deep mines, such as the applicant. On the contrary, both those laws provide for a single social security scheme applicable to all employed and self-employed persons. The advantages linked to the work of a miner in a deep mine, as well as to other occupations included in category I pursuant to Paragraph 14(2) of Law No 100/1988, were advantages only under that single system.
38.      Therefore, the referring court raises the question of whether the aggregation of periods provided for in Article 51(1) of Regulation No 883/2004 is applicable in the absence, in its legislation, of a special scheme, distinct from the single social security scheme.
39.      By its questions, which it is appropriate to examine together, that court asks, in essence, whether, in order for Article 51(1) of Regulation No 883/2004 to apply to a retirement pension the decision on which was adopted by the competent institution of a Member State, it is necessary for a special scheme to have been established by that Member State (in which case the question arises as to what characterises such a special scheme), or whether it is sufficient, in the absence of such a special scheme, for the legislation to have established a specific category of persons who have completed periods of insurance solely in the context of a specific activity (for example, miners working in deep mines) giving rise to a more advantageous retirement pension.
40.      In accordance with the settled case-law of the Court, (11) it is necessary, in order to answer those questions, taken together, to consider not only the wording of the provision in question but also its context and the objectives of the legislation of which it forms part, while the origins of that provision may also provide information relevant to its interpretation.
Textual interpretation
41.      I note that Article 51 of Regulation No 883/2004 lays down specific provisions concerning the application of the principle of aggregation of periods to old-age benefits. It contains special rules on aggregation where the legislation of a Member State makes the granting of certain benefits conditional upon ‘the periods of insurance having been completed only in a specific activity as an employed or self-employed person or in an occupation which is subject to a special scheme for employed or self-employed persons’.
42.      As noted by the referring court, there are differences between the different language versions of Article 51(1) of Regulation No 883/2004, which may give rise to two distinct, or even opposing, interpretations of the conditions for the application of that provision.
43.      Several language versions, in particular those in English, (12) Italian, (13) Polish (14) and Slovak (15) use, like the French version, the singular form of the expression ‘is subject to a special scheme’, which suggests that the concept of ‘special scheme’ relates only to the concept of ‘occupation’. Thus, according to that first reading, that provision applies not only where the applicable national law provides for a special scheme, but also, more generally, where it includes rules on entitlement to benefits specific to a given activity as an employed or self-employed person. According to that first interpretation, Article 51(1) of Regulation No 883/2004 therefore applies even in the absence of a special scheme in the Member State in which the decision to grant the benefit is taken.
44.      However, other language versions of Article 51(1) of Regulation No 883/2004, in particular those in German, (16) Greek (17) and Spanish, (18) use the plural form of the expression ‘are subject to a special scheme’, which implies that the concept of ‘special scheme’ relates both to ‘a specific activity as an employed or self-employed person’ and to ‘an occupation’. According to that second interpretation, that provision therefore applies only to occupations and activities for which the Member State in which the decision to grant the benefit was adopted has established a ‘special scheme’.
45.      On the basis of that textual analysis, it seems that both interpretations remain possible.
46.      As the Commission points out, according to the Court’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union.
47.      Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. (19) It is therefore necessary to have recourse to a contextual and teleological analysis of the provision in question.
Contextual interpretation
48.      I note that Article 48(1)(a) TFEU requires aggregation, for the purpose 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. Article 6 of Regulation No 883/2004 implements that principle in general terms (20) and provides that, unless otherwise provided for by that regulation, where national legislation makes the right to benefits or other advantages conditional upon the prior completion of periods of coverage under the social security system, whether those are periods of insurance, employment, self-employment or residence, the competent social security institution must take into account, where necessary, periods completed in another Member State and under the legislation of that Member State. That principle thus establishes a kind of ‘mutual recognition of periods of insurance’. (21)
49.      In that context, Article 51 of Regulation No 883/2004, which is in the chapter relating to old-age and survivors’ pensions, lays down specific provisions relating to aggregation of the relevant periods. The aim of that article is thus to link periods of coverage under general and special schemes, since, in the course of a career during which a person works in different Member States, he or she may be covered by different types of schemes. (22)
50.      Does that mean that Article 51 necessarily requires a ‘special scheme’ which is formally distinct from the general scheme? I am not convinced that that is the case.
51.      First, I note that the current Article 51(1) of Regulation No 883/2004 corresponds to the former Article 45(2) of Regulation No 1408/71, which it modernised and simplified, while retaining the same objective. (23)
52.      The former Article 45(2) of Regulation No 1408/71 provided that ‘where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific employment, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same employment’. (24)
53.      From that, I infer that, even if the Member State in which the benefit was granted did not provide for a special scheme as such, that would not prevent Article 45(2) of that regulation from applying where appropriate, as long as the periods of insurance were completed in a ‘specific employment’. Moreover, as the Polish Government states, Decision No 81 of the Administrative Commission on Social Security for Migrant Workers, (25) attached to the European Commission, of 22 February 1973 concerning aggregation of insurance periods completed in a given occupation in application of Article 45(2), (26) refers only to the completion of periods of insurance in a given occupation and requires the aggregation of periods of insurance completed in different Member States in a particular occupation where that occupation is the subject of ‘special treatment’ and is therefore ‘defined’ by the legislation. It follows that, where a particular job was regulated in one way or another, it was subject to aggregation, whether it came under a ‘special’ scheme, special rules or the general social security scheme.
54.      It must be held that the EU legislature did not intend to adopt a more restrictive method of aggregation by adopting Article 51(1) of Regulation No 883/2004. It is apparent from the travaux préparatoires for that regulation that the system of coordination remained the same in terms of its guiding principles and essential elements, including the aggregation of periods. (27)
55.      Such an element could therefore be regarded as being consistent with the first interpretation, since it does not require a ‘special’ scheme which is necessarily formally distinct from the general scheme.
56.      Secondly, it is true that the second subparagraph of Article 51(1) of Regulation No 883/2004 provides for situations in which, account having been taken of the periods thus completed, ‘the person concerned does not satisfy the conditions for receipt of the benefits of a special scheme’. (28) The referring court raises the hypothesis that it could be inferred that the whole of Article 51(1) applies only if the Member State in which the decision to grant a benefit is adopted divides its social security scheme into a ‘special’ scheme and a ‘general’ scheme.
57.      However, I note that that concept of ‘special scheme’ is not defined in Regulation No 883/2004. Article 1(e) of Regulation No 883/2004 defines the expression ‘special scheme for civil servants’ (29) and therefore does not appear to be relevant in the context of Article 51 of that regulation. Thus, as the Polish Government
states, the very definition of such a special scheme is ‘uncertain’.
58.      Furthermore, as the Court has previously
pointed out, the provisions both of Regulation No 1408/71 and of Regulation No 883/2004 do not set up a common scheme of social security, but have the sole objective of ensuring, not harmonisation, but coordination between the various national schemes which continue to exist. Thus, according to settled case-law, Member States retain the power to organise their social security schemes. (30)
59.      Therefore, in the context of Article 51(1) of Regulation No 883/2004, there is nothing to preclude a broader understanding of the concept of ‘special scheme’ in order to take account of the reality of the various national social security systems. That may therefore imply that the concept covers not only a social security scheme which is formally distinct from the general scheme, but also a scheme which has been established, within the general scheme, to cover ‘a specific activity as an employed or self-employed person’.
60.      Such an interpretation seems to me to be supported by a teleological analysis of the provision at issue.
Teleological interpretation
61.      It is apparent both from the preamble to Regulation No 883/2004 and from the case-law of the Court that the purpose of coordinating Member States’ social security systems is to guarantee that the right to free movement of persons can be exercised effectively. (31)
62.      Accordingly, although it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits, Member States must nonetheless comply with the law of the European Union and, in particular, with the provisions of the FEU Treaty giving every citizen of the European Union the right to move and reside within the territory of the Member States. (32) In that regard, the FEU Treaty offers no guarantee to a worker that extending his or her activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. However, the application of less favourable legislation is compatible with the principle of free movement if it does not place the worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it. (33)
63.      Among the coordination measures designed to guarantee that the right to free movement of persons can be exercised effectively, the principle of aggregation of periods seeks to prevent the situation in which a worker who, having exercised his or her right of free movement, has worked in more than one Member State is treated, without objective justification, less favourably than a worker who has completed his or her entire career in only one Member State. (34)
64.      The purpose of Article 51(1) of Regulation No 883/2004 is thus to ensure that persons who have pursued an activity entitling them to specific advantages in relation to their retirement pension (for example, early retirement due to an arduous or hazardous occupation) are not deprived of the benefit of those advantages simply because they have exercised their freedom of movement.
65.      However, the interpretation of Article 51(1) of Regulation No 883/2004, according to which that provision applies only to occupations and activities for which there is a ‘special scheme’ which is necessarily distinct from the general scheme in the Member State in which the decision to grant the benefit was adopted, (35) seems to me to run counter to that objective of freedom of movement for workers.
66.      Such an interpretation could prevent the application of Article 51(1) of Regulation No 883/2004 merely because, for example, the Member State granting the benefits at issue has chosen to establish only a general scheme, within which it distinguishes specific categories of activity. In that case, an employed or self-employed person pursuing a specific activity provided for under the general scheme and to which certain advantages are attached might choose not to pursue, or at least be reluctant to pursue, that specific activity in another Member State if that would put him or her at a disadvantage compared with workers pursuing that specific activity in its entirety in the Member State concerned.
67.      Thus, in the context of the dispute in the main proceedings, if the existence, in Slovakia, of a special scheme, distinct from the general scheme, were required in order for Article 51(1) of Regulation No 883/2004 to apply and to allow contribution periods between 1993 and 1995 in the territory of the present-day Czech Republic to be taken into account for the purposes of calculating the length of the applicant’s working life, the mere existence of category I would not be sufficient to enable him to retire at 55 years of age, whereas he would have been able to retire at 55 if he had worked in Slovakia throughout his career.
68.      Such an approach seems to me to be contrary to the objective of freedom of movement for workers.
69.      Accordingly, I consider that the fact that the Member State granting the benefit in question has established a special social security scheme, formally distinct from the general scheme, or that it has instead adopted special rules applicable to a specific activity within its general scheme, should, in my view, be irrelevant for the purposes of the aggregation of periods. The organisation and financing of social security schemes is a matter of choice, which may vary considerably from one Member State to another, and should have no consequences in terms of freedom of movement for workers.
70.      It is true that not every special rule can be regarded, in itself, as constituting a ‘special scheme’ within the meaning of Article 51(1) of Regulation No 883/2004 and it is for the referring court to ascertain whether the body of rules applicable, in the present case to miners working in deep mines, is capable of constituting such a ‘scheme equivalent to a special scheme’.
71.      In that regard, in view of the objective of freedom of movement for workers, I am of the view that it is necessary to have regard to substantive aspects, rather than formal or organic aspects.
72.      Thus, the expression ‘special scheme’ should, in my view, be understood as referring not only to special schemes defined as such in the national system, but also to the coherent bodies of special rules established, including within a general scheme, which are applicable to a specific activity as an employed or self-employed person. In particular, that expression could refer to a body of rules concerning, for example, the conditions for access to benefits, the rules for calculating the amount of benefits (according to, for example, the length of the contribution period or retirement age) and the award of retirement pensions, which are specific to certain activities or occupations on account of their particular characteristics (linked, for example, to the arduousness of the work or the hazards associated with an activity). Those rules would thus apply to a particular group of employed or self-employed persons, or occupations, subject, as the referring court suggests, to a ‘relatively strictly circumscribed system of special derogations’. By contrast, I consider, contrary to what the Commission maintains, that although the fact that those rules are implemented by an entity which is formally distinct from the entity responsible for the general scheme or that the funding they provide for is separate from the funding for the general scheme may constitute relevant criteria for concluding that a ‘special’ scheme exists, they cannot, however, be the decisive factors.
73.      I would add that in the context of Article 51 of Regulation No 883/2004, such an approach would make it possible to take account of the reality of the different social security system arrangements in the various Member States with regard to freedom of movement for workers.
74.      Lastly, I note that the Commission maintains that the contribution periods of the applicant in the main proceedings as a miner working in deep mines in the Czech Republic between 31 December 1992 and 31 August 1995 should be taken into account on the basis of the general provisions of Article 5(b) of Regulation No 883/2004, according to which, where the legislation of the competent Member State provides that legal effects are attributed to the occurrence of certain facts or events, that Member State is to take account of like facts or events occurring in any other Member State as though they had taken place in its own territory. (36) However, I have serious doubts in that regard. Article 5(b) of that regulation governs the consequences to be drawn from specific facts or events, such as an accident, illness, disability, birth or marriage, which have taken place in another Member State and which could have an impact on entitlement to social security benefits. Furthermore, it is apparent from recital 10 of Regulation No 883/2004 that the principle of assimilating certain facts or events should not interfere with the principle of aggregating periods of insurance. The taking into account of periods completed under the legislation of another Member State does not seem to me to constitute ‘a fact or an event’ for the purposes of Article 5(b) of that regulation. I am therefore of the view that that provision is not applicable to the situation at issue in the main proceedings and does not provide an answer to the questions raised by the referring court. (37)
75.      Consequently, I consider that Article 51(1) of Regulation No 883/2004 must be interpreted as meaning that a retirement pension, the decision on which was adopted by the competent institution of a Member State, falls within the scope of that provision both where, under the legislation of that Member State, a special scheme applicable to employed or self-employed persons has been established and where the legislation of that Member State, without having formally established such a ‘special scheme’, has provided that a specific category of persons who have completed periods of insurance in the context of a specific activity (for example, miners working in deep mines) may obtain, on the basis of those periods, a retirement pension under more advantageous conditions than other persons who are otherwise employed or self-employed.
Conclusion
76.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic) as follows:
Article 51(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on coordination of social security systems, as amended by Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019,
must be interpreted as meaning that
a retirement pension, the decision on which was adopted by the competent institution of a Member State, falls within the scope of that provision both where, under the legislation of that Member State, a special scheme applicable to employed or self-employed persons has been established and where the legislation of that Member State, without having formally established such a ‘special scheme’, has provided that a specific category of persons who have completed periods of insurance in the context of a specific activity (for example, miners working in deep mines) may obtain, on the basis of those periods, a retirement pension under more advantageous conditions than other persons who are otherwise employed or self-employed.
1      Original language: French.
2      Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 (OJ 2019 L 186, p. 21) (‘Regulation No 883/2004’). That regulation replaced Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition: Series I Volume 1971(II), p. 416), in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008 (OJ 2008 L 177, p. 1) (‘Regulation No 1408/71’).
3      Article 2 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded
(OJ 2003 L 236, p. 33), adopted on the same day as the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union
(OJ 2003 L 236, p. 17), states that the Treaties and the acts adopted by the EU institutions before accession are to be binding on the new Member States and are to apply in those States under the conditions laid down in those Treaties and in that act.
4      Under Article 91 of Regulation No 883/2004, that regulation entered into force on the twentieth day after its publication in the Official Journal of the European Union, namely 20 May 2004, and is applicable from the date of entry into force of the implementing regulation, namely 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 (OJ 2009 L 284, p. 1), namely 1 May 2010, subject to specific transitional provisions.
5      See point 21 of the present Opinion.
6      See judgment of 22 January 2015, Balazs (C‑401/13 and C‑432/13, EU:C:2015:26, paragraph 32).
7      See judgment of 21 October 2021, Zakład Ubezpieczeń Społecznych I Oddział w Warszawie (C‑866/19, EU:C:2021:865, paragraph 24).
8      Article 94(2) of Regulation No 1408/71 provided that ‘all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before 1 October 1972 or before the date of its application in the territory of that Member State or in a part of the territory of that State shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation’.
9      See judgments of 16 May 2013, Wencel (C‑589/10, EU:C:2013:303, paragraph 33), and of 22 January 2015, Balazs (C‑401/13 and C‑432/13, EU:C:2015:26, paragraph 30).
10      It is apparent from the request for a preliminary ruling that in the Czech Republic employment ceased to be classified into categories as of 1 January 1993. However, it was provided that the lowering of the retirement age was to be maintained until 31 December 2016. In Slovakia, jobs were divided into three employment categories until 31 December 1999 and the age for receiving a retirement pension was reduced for category I jobs.
11      See judgment of 8 May 2019, Inspecteur van de Belastingdienst (C‑631/17, EU:C:2019:381, paragraph 29 and the case-law cited).
12      ‘… in a specific activity as an employed or self-employed person or in an occupation which is subject to a special scheme for employed or self-employed persons …’.
13      ‘… in una determinata attività subordinata o autonoma o in un’occupazione soggetta ad un regime speciale applicabile ai lavoratori subordinati o autonomi …’.
14      ‘… określonej pracy najemnej lub na własny rachunek lub w zawodzie, który podlega szczególnemu systemowi …’.
15      ‘… dosiahnutými iba vykonávaním špecifickej činnosti ako zamestnanec alebo samostatne zárobkovo činná osoba, alebo v povolaní, ktoré podlieha osobitnému systému pre zamestnancov alebo samostatne zárobkovo činné osoby …’.
16      ‘… in einer bestimmten Beschäftigung oder selbstständigen Erwerbstätigkeit oder einem Beruf zurückgelegt wurden, für die ein Sondersystem für beschäftigte oder selbstständig erwerbstätige Personen gilt, …’.
17      ‘… σε συγκεκριμένη μισθωτή ή μη μισθωτή δραστηριότητα ή επάγγελμα, για τα οποία ισχύει ειδικό σύστημα που εφαρμόζεται σε πρόσωπα τα οποία ασκούν μισθωτή ή μη μισθωτή δραστηριότητα …’.
18      ‘… en una actividad determinada como trabajador por cuenta ajena o propia, u ocupación sujetas a un régimen especial para trabajadores por cuenta ajena o propia …’.
19      See judgments of 27 October 1977, Bouchereau (30/77, EU:C:1977:172, paragraph 14); and, more recently, of 23 January 2020, Bundesagentur für Arbeit (C‑29/19, ‘the judgment in Bundesagentur für Arbeit’, EU:C:2020:36, paragraph 48); and of 4 September 2025, Hakamp (C‑203/24, EU:C:2025:662, paragraph 34 and the case-law cited).
20      While Regulation No 1408/71 made provisions for that aggregation which were specific to each of the risks covered by the regulations, Article 6 of Regulation No 883/2004 makes a general statement of principle.
21      See Morsa, M., Sécurité sociale, libre circulation et citoyenneté européenne, Anthemis, Limal, 2012, pp. 107-108.
22      See Omarjee, I., Manuel de droit européen de la protection sociale, 2nd edition, Bruylant, Brussels, 2021, p. 309, No 334.
23      See judgment of 21 March 2018, Klein Schiphorst (C‑551/16, EU:C:2018:200, paragraph 31).
24      Emphasis added.
25      The Administrative Commission on Social Security for Migrant Workers, attached to the European Commission, provided for in Title IV of Regulation No 1408/71 and Title IV of Regulation No 883/2004, which is responsible, inter alia, under Article 81(a) of Regulation No 1408/71 (now Article 72(a) of Regulation No 883/2004), for dealing with all administrative questions and questions of interpretation arising from the provisions of those regulations.
26      Decision No 81 of 22 February 1973 concerning aggregation of insurance periods completed in a given occupation in application of Article 45(2) of Regulation (EEC)
No 1408/71 (OJ 1973 C 75, p. 11).
27      See, in particular, Commission Proposal for a Council Regulation (EC) on coordination of social security systems of 21 December 1998 (COM
(1998) 779
final) (OJ 1999 C 38, p. 10).
28      Emphasis added. I note that the wording ‘of a special scheme’ did not appear in Article 45(2) of Regulation No 1408/71.
29      That provision states that the expression ‘special scheme for civil servants’ means ‘any social security scheme which is different from the general social security scheme applicable to employed persons in the Member State concerned and to which all, or certain categories of, civil servants are directly subject’.
30      See, inter alia, judgments of 21 February 2013, Salgado González (C‑282/11, EU:C:2013:86, paragraph 35), and of 21 October 2021, Zakład Ubezpieczeń Społecznych I Oddział w Warszawie (C‑866/19, EU:C:2021:865, paragraph 25). See also Lenaerts, K., Adam, S., ‘La solidarité, valeur commune aux États membres et principe fédératif de l’Union européenne’, Cahiers de droit européen, 2021, No 2, pp. 318-322.
31      That is apparent in particular from recitals 1, 4, 13 and 45 of that regulation and, inter alia, from the judgment of 21 March 2018, Klein Schiphorst (C‑551/16, EU:C:2018:200, paragraph 31).
32      See, to that effect, inter alia, judgment of 21 February 2013, Salgado González (C‑282/11, EU:C:2013:86, paragraphs 36 and 37); the judgment in Bundesagentur für Arbeit (paragraph 41); and judgment of 7 July 2022, Pensionsversicherungsanstalt (Child-raising periods completed abroad) (C‑576/20, EU:C:2022:525, paragraph 49).
33      See judgment of 14 March 2019, Vester (C‑134/18, EU:C:2019:212, paragraphs 32 and 33 and the case-law cited).
34      See, in that regard, recitals 13 and 14 of Regulation No 883/2004, and the judgment in Bundesagentur für Arbeit (paragraph 33). See also Detienne, Q. and Servais, J.‑M., ‘Chapitre II. – Droit de la sécurité sociale’, Droit social de l’Union européenne, 4th edition, Bruylant, Brussels, 2021, especially p. 343, No 892.
35      Namely, the second interpretation (see point 44 of this Opinion), according to which the concept of ‘special scheme’ relates both to ‘a specific activity as an employed or self-employed person’ and to ‘an occupation’.
36      Article 5 of Regulation No 883/2004, entitled ‘Equal treatment of benefits, income, facts or events’, forms part of the general provisions of that regulation and enshrines the case-law principle of equal treatment of benefits, income and facts that the EU legislature sought to include in the text of that regulation in order that that principle might be developed in keeping with the substance and spirit of the Court’s rulings (see, to that effect, judgment of 5 December 2019, Bocero Torrico and Bode, C‑398/18 and C‑428/18, EU:C:2019:1050, paragraph 29 and the case-law cited). It is a particular expression of the general principle of non-discrimination (see judgment of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle, C‑769/18, EU:C:2020:203, paragraph 44).
Article 5 provides that ‘unless otherwise provided for by this Regulation and in the light of the special implementing provisions laid down, the following shall apply: … (b) where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory’.
37      I find the case giving rise to the judgment of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle (C‑769/18, EU:C:2020:203), cited by the Commission in support of its argument, unconvincing, since the Court was called upon to answer the question of the extent to which assistance for bringing up a disabled child granted in a Member State must be taken into account for the calculation of old-age benefits where the national legislation of that State provides for an increase in respect of certain situations of disability. The Court held that the increase in the pension rate was attributed on the basis of the occurrence of a fact, within the meaning of Article 5(b) of Regulation No 883/2004, namely that the child’s permanent incapacity must be at least equal to a certain level. The taking into account of periods completed under other legislation was therefore not at issue in that case.