Case C-589/10

Janina Wencel

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Zakład Ubezpieczeń Społecznych w Białymstoku

(Request for a preliminary ruling from the Sąd Apelacyjny w Białymstoku)

‛Article 45 TFEU — Regulation (EEC) No 1408/71 — Article 10 — Old-age benefits — Habitual residence in two different Member States — A survivor’s pension received in one of those States and a retirement pension in the other — Withdrawal of one of those benefits — Recovery of benefits to which it is alleged the recipient was not entitled’

Summary — Judgment of the Court (First Chamber), 16 May 2013

Social security — Migrant workers — Benefits — National rules against overlapping — Retirement pension reduced up to the limit of the amount of the benefits received in the other Member State — Lawfulness — Conditions — Matter to be verified by the referring court

Social security — Migrant workers — Benefits — National rules against overlapping — A survivor’s pension received in one Member State and a retirement pension in another — Retroactive withdrawal of entitlement to a retirement pension and demand for repayment of pensions to which, it is claimed, the person concerned was not entitled — Not permissible — Retirement pension reduced up to the limit of the amount of the benefits received in the other Member State — Lawfulness

See the text of the decision. (see paras 30-34)

See the text of the decision. (see paras 35-40)

Article 10 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended most recently by Regulation No 592/2008, must be interpreted as meaning that, for the purposes of the application of the regulation, a person cannot have simultaneously two habitual residences in two different Member States. Since it is not possible, however, to ascertain on the basis of Article 10 of Regulation No 1408/71 whether it is permissible under the regulation to have two habitual residences in two different Member States, the regulation establishes a system for the coordination of national social security schemes and lays down, in Title II, rules governing the determination of the legislation to be applied. Those provisions are not only intended to ensure that the persons concerned are not left without social security cover because there is no legislation which is applicable to them, but also to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may arise from that situation. Since the system introduced by Regulation No 1408/71 uses the residence of the person concerned as the connecting factor for the determination of the legislation applicable, it cannot be accepted, without depriving the provisions referred to above of all practical effectiveness, that a person may have simultaneously, for the purposes of that regulation, a number of habitual residences in different Member States. (see paras 45, 46, 48, 51, 73, operative part)

Under the provisions of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended most recently by Regulation No 592/2008, in particular Articles 12(2) and 46a, the competent institution of a Member State cannot legitimately withdraw, retroactively, the entitlement to a retirement pension of the person concerned and require that person to repay any pension to which it is alleged he was not entitled on the ground that he receives a survivor’s pension in another Member State in whose territory he has also been resident. However, the amount of the retirement pension paid in the first Member State may be reduced, up to the limit of the amount of the benefits received in the other Member State, by virtue of the application of any national rule precluding the cumulation of benefits. First, under Article 12(1) of Regulation No 1408/71, the regulation can neither confer nor maintain, in principle, the right to several benefits of the same kind for one and the same period of insurance. Second, it is apparent from Article 12(2) of that regulation that provisions on reduction laid down in the legislation of a Member State may, unless that regulation provides otherwise, be invoked against persons who receive a benefit from that Member State if they can claim other social security benefits, even when those benefits are acquired under the legislation of another Member State. Consequently, Regulation No 1408/71 does not preclude the application of national legislation which has the effect of reducing the amount of the pension which the insured person may claim on the basis that that person is entitled to old-age benefits in another Member State, provided the limits imposed by that regulation are observed. (see paras 57, 59, 60, 73, operative part)