EN Official Journal of the European Union C 344/26

Judgment of the Court (Third Chamber) of 19 September 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Pensionsversicherungsanstalt v Peter Brey

(Case C-140/12) (1)

(Freedom of movement for persons - Union Citizenship - Directive 2004/38/EC - Right of residence for more than three months - Article 7(1)(b) - Person no longer having worker status - Person in possession of a retirement pension - Having sufficient resources not to become a burden on the ‘social assistance system’ of the host Member State - Application for a special non-contributory cash benefit - Compensatory supplement intended to augment a retirement pension - Regulation (EC) No 883/2004 - Articles 3(2) and 70 - Competence of the Member State of residence - Conditions for granting - Legal right to reside on the national territory - Compliance with European Union law)

2013/C 344/43

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Pensionsversicherungsanstalt

Defendant: Peter Brey

Re:

Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 7(1)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), as amended — Right of a citizen of the European Union who has ceased his professional activity to reside for more than three months in the territory of another Member State — Situation in which that citizen receives a retirement pension which is below the minimum subsistence level of the host Member State and has, for that reason, requested that he be granted a compensatory supplement (‘Ausgleichszulage’), which is a special non-contributory cash benefit

Operative part of the judgment

EU law — in particular, as it results from Article 7(1)(b), Article 8(4) and Article 24(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC — must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, even as regards the period following the first three months of residence, automatically — whatever the circumstances — bars the grant of a benefit, such as the compensatory supplement provided for in Paragraph 292(1) of the Federal Act on General Social Insurance (Allgemeines Sozialversicherungsgesetz), as amended, from 1 January 2011, by the 2011 Budget Act (Budgetbegleitgesetzes 2011), to a national of another Member State who is not economically active, on the grounds that, despite having been issued with a certificate of residence, he does not meet the necessary requirements for obtaining the legal right to reside on the territory of the first Member State for a period of longer than three months, since obtaining that right of residence is conditional upon that national having sufficient resources not to apply for the benefit.

(1) OJ C 165, 9.6.2012.