Recommendation No 22 of 18 June 2003 concerning the Gottardo judgment, according to which the advantages enjoyed by a State's own nationals under a bilateral convention on social security with a non-member country must also be granted to workers who are nationals of other Member States
Date: 2003-06-18
Institutions: Administrative Commission on Social Security for Migrant Workers, European Commission
Subjects: EU Member State, bilateral agreement, free movement of workers, migrant worker, social security, third country

13.12.2003

EN

Official Journal of the European Union

L 326/35

ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY
FOR MIGRANT WORKERS

RECOMMENDATION No 22

of 18 June 2003

concerning the Gottardo judgment, according to which the advantages enjoyed by a State's own
nationals under a bilateral convention on social security with a non-member country must also be
granted to workers who are nationals of other Member States

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COM-
MUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

(4)

(2003/868/EC)

Having regard to Article 81(a) of 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
families moving within the Com-
munity (1), under which it is made responsible for dealing with
all administrative questions arising from the provisions of
Regulation (EEC) No 1408/71 and subsequent Regulations,

their

Having regard to Article 81(c) of the same Regulation, under
which it is responsible for fostering and developing cooperation
between Member States in social security matters,

Whereas:

(1)

(2)

(3)

Regulation (EEC) No 1408/71, adopted on the basis of
Article 42, is an essential instrument for exercising the
fundamental freedoms provided for by the Treaty.

The principle of non-discrimination on the grounds of
nationality is an essential safeguard for the freedom of
movement of employed persons, as provided for in
Article 39 of the Treaty. This implies the abolition of all
in the
discrimination between the settled workers
to
Member States and migrant workers with respect
employment, pay and other working conditions.

In Gottardo (2), the Court of Justice acted on this prin-
ciple as set out in Article 39 in relation to a person resi-
dent in the Community who had worked in France, Italy
and Switzerland. This person did not have sufficient enti-
tlement for a pension in Italy and asked for her periods
of insurance completed in Switzerland and Italy to be
aggregated, as provided for under the bilateral conven-
tion between Italy and Switzerland for the benefit of
their nationals.

(5)

(6)

(7)

The Court ruled in this case that when a Member State
concludes a bilateral international convention on social
security with a non-member country which provides for
account to be taken of periods of insurance completed
in that non-member country for acquisition of entitle-
ment to old-age benefits, the fundamental principle of
equal treatment requires that that Member State grant
nationals of the other Member States the same advan-
tages as those which its own nationals enjoy under that
convention unless it can provide objective justification
for refusing to do so (paragraph 34).

In this connection, the Court stated that its interpreta-
tion of the term ‘legislation’ in Article 1(j) of Regulation
(EEC) No 1408/71 (3) cannot affect the obligation of
every Member State to comply with the principle of
equal
the EC
Treaty.

laid down in Article 39 of

treatment

a bilateral

international

The Court considered that disturbing the balance and
convention
reciprocity of
concluded between a Member State and a non-member
country did not constitute an objective justification for
the refusal by the Member State party to that convention
to extend to nationals of the other Member States the
advantages which its own nationals derive from that
convention.

Nor did the Court accept the objections to the effect that
a possible increase in the financial burden and adminis-
trative difficulties in liaising with the competent authori-
ties of the non-member country in question could justify
the Member State which is party to the bilateral conven-
tion failing to comply with its Treaty obligations.

(1) OJ L 149, 5.7.1971, p. 2.
(2) Judgment of 15 January 2002, Case C-55/00.

(3) Judgment of 2 August 1993, Case C-23/92 Grana-Novoa, ECR I-

4505.

(8)

(9)

(10)

L 326/36

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Official Journal of the European Union

13.12.2003

It is important that all appropriate conclusions be drawn
from this judgment, which is crucial
for Community
nationals who have exercised their right to move freely
to another Member State.

(13)

The Administrative Commission should deal with this
question, given that the ruling in Gottardo is concerned
with the application of the principle of equal treatment
in the field of social security,

For this reason,
it should be made clear that bilateral
conventions on social security between a Member State
and a non-member country must be interpreted to the
effect that the advantages enjoyed by nationals of the
Member State which is party to the convention should
in principle also be granted to a Community national
who is in the same situation in objective terms.

Irrespective of the uniform application of the Gottardo
ruling to individual cases, the existing bilateral conven-
tions should be reviewed. With regard to agreements
concluded previously, Article 307 of
the EC Treaty
states: ‘the Member State or States concerned shall take
all appropriate steps to eliminate the incompatibilities
established’, and with regard to agreements concluded
after 1 January 1958, or after the date of a Member
State's accession to the European Community, Article 10
of the EC Treaty requires that these same Member States
‘abstain from any measure which could jeopardise the
attainment of the objectives of the Treaty’.

(11) With regard to new bilateral conventions on social
security concluded between a Member State and a non-
member country, it is important to bear in mind that
these should include a specific reference to the principle
of non-discrimination on the grounds of nationality in
relation to nationals of other Member States who have
exercised their right to move freely in the Member State
which is a party to the convention concerned.

(12)

The application of the Gottardo judgment to individual
largely on the cooperation of non-
cases depends
member countries, since they must certify the periods of
insurance completed there by the person concerned.

RECOMMENDS:

1. In accordance with the principle of equal treatment and
non-discrimination between a State's own nationals and the
nationals of other Member States who have exercised their
right to move freely pursuant to Article 39 of the EC Treaty,
the advantages as regards pensions which are enjoyed by a
State's own workers (employed and self-employed persons)
under a convention on social security with a non-member
country are also, in principle granted to workers (employed
and self-employed persons) who are nationals of the other
Member States and are in the same situation in objective
terms.

2. New bilateral conventions on social security concluded
between a Member State and a non-member country should
make specific reference to the principle of non-discrimina-
tion, on the grounds of nationality, against nationals of
another Member State who have exercised their right of free
movement in the Member State which is a party to the
convention concerned.

3. The Member States should inform the institutions in coun-
tries with which they have signed social security conven-
respective
tions whose provisions apply only to their
nationals about the implications of the Gottardo ruling and
should ask them to cooperate in applying the ruling of the
Court. Member States which have concluded bilateral
conventions with the same non-member countries may act
jointly in requesting such cooperation. This cooperation is
clearly essential if the ruling is to be complied with.

The Chairman of the Administrative
Commission

Théodora TSOTSOROU