Liselotte Kauer v Pensionsversicherungsanstalt der Angestellten.
Date: 2002-02-07
20 On consideration of those arguments the Court observes that, according to established case-law, the principle of legal certainty precludes a regulation from being applied retroactively, regardless of whether such application might produce favourable or unfavourable effects for the person concerned, unless a sufficiently clear indication can be found, either in the terms of the regulation or in its stated objectives, which allows the conclusion to be drawn that the regulation was not merely providing for the future (Case 234/83 Gesamthochschule Duisburg [1985] ECR 327, paragraph 20). If the new law is thus valid for only for the future, it also applies, save for derogation, according to a generally recognised principle, to the future effects of situations which came about during the period of validity of the old law (see, to that effect, Case 96/77 Bauche and Delquignies [1978] ECR 383, paragraph 48; Case 125/77 Koninklijke Scholten-Honig and De Bijenkorf [1978] ECR 1991, paragraph 37; Case 40/79 P. v Commission [1981] ECR 361, paragraph 12; and Case 270/84 Licata v Economic and Social Committee [1986] ECR 2305, paragraph 31).
22 Equally, in order to allow the application of Regulation No 1408/71 to future effects of situations arising under the period of validity of the old law, Article 94(2) of the regulation lays down the obligation to take into consideration, for the purposes of determining rights to benefit, all periods of insurance, employment or residence completed under the legislation of any Member State before 1 October 1972 or before the date of its application in the territory of that Member State. It follows, therefore, from that provision that a Member State is not entitled to refuse to take account of periods of insurance completed in the territory of another Member State, for the purposes of establishment of a retirement pension, for the sole reason that they were completed before the entry into force of the regulation in its regard (Case C-227/89 Rönfeldt [1991] ECR I-323, paragraph 16).
25 As regards Article 94(2) of Regulation No 1408/71, it must be borne in mind that the expression period of insurance used in that provision is defined in Article 1(r) of Regulation No 1408/71 as meaning periods of contribution or periods of employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance.
26 That reference to domestic legislation clearly shows that Regulation No 1408/71, particularly for the purposes of aggregation of periods of insurance, refers to the conditions to which domestic law subjects recognition of a specific period as equivalent to periods of insurance properly so called (see, as regards Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers, (Journal Officiel 1958, p. 561), the judgment in Case 14/67 Landesversicherungsanstalt Rheinland-Pfalz v Welchner [1967] ECR 331, at page 337, and, as regards Regulation No 1408/71, the judgment in Case C-324/88 Vella and Others [1990] ECR I-257). However, such recognition of periods must be consistent with the provisions of the EC Treaty on the free movement of persons (see, in particular, Case C-302/90 Faux [1991] ECR I-4875, paragraphs 25 to 28, and Case C-322/95 Iurlaro [1997] ECR I-4881, paragraph 28).
29 As the Advocate General observes in point 49 of his Opinion, it follows that, according to Article 13(2) of Regulation No 1408/71, as applicable before the addition of point (f) by Council Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation No 1408/71 (OJ 1991 L 206, p. 2), Mrs Kauer, who had last been employed in Austria, would have continued to be subject to Austrian legislation during the periods spent raising her children in Belgium, on whose territory she pursued no activity as an employed or self-employed person (see Case 302/84 Ten Holder [1986] ECR 1821, paragraph 14, and Case C-215/90 [1992] ECR I-1823, paragraph 10).
31 That argument cannot be accepted. Even if it were necessary to take account of Article 13(2)(f), inserted into Regulation No 1408/71 by Regulation No 2195/91, that is to say many years after completion by Mrs Kauer of child-raising periods in Belgium, that provision would still not be relevant in the circumstances of the present case as regards taking into account child-raising periods for the purposes of old-age insurance.
32 It is clear from the judgment in Case C-135/99 Elsen [2000] ECR I-10409, paragraphs 25 to 28, that, as regards taking account of child-raising periods for the purposes of old-age insurance, the fact that a person, like Mrs Kauer, worked in only one Member State and was subject to the legislation of that State at the time when her child was born, allows a sufficiently close link to be established between those child-raising periods and the periods of insurance completed by virtue of the pursuit of a gainful occupation in the State under consideration. It was indeed on account of completion of those latter periods that Mrs Kauer requested an Austrian institution to take account of periods spent in rearing her children during a break in her working career.
45 In the second place, where, as in the present case, the national legislation applies to child-raising periods completed before the date of application in the Member State in question of Regulation No 1408/71, the determination of a pension entitlement arising after Austria's accession to the European Union, even on the basis of periods of insurance completed before that date, must be carried out by the Austrian authorities in accordance with Community law and, in particular, in accordance with the provisions of the Treaty relating to the free movement of workers or again the freedom of every citizen of the Union to move and reside in the territory of the Member States (see, to that effect, Elsen, cited above, paragraph 33).
46 Second, as regards more particularly the taking into account of the periods in question in the main proceedings, application should be made of the transitional provision laid down in Article 94(2) of Regulation No 1408/71, which is meant to cover situations arising at a time when the Treaty was still not in application in the Member State under consideration. The very purpose of that provision, as already emphasised in paragraph 22 above, is to enable Regulation No 1408/71 to apply to the future effects of situations coming into being at a time when, by definition, freedom of movement of persons was still not yet guaranteed in intercourse between the Member State under consideration and the Member State in whose territory the specific situations eventually to be taken into account occurred.
50 Consequently, it must be held that the requirement for cash maternity allowances or equivalent allowances to have been granted under federal Austrian legislation, such as the requirement in Paragraph 227a(3) of the ASVG, is contrary to Article 94(2) of Regulation No 1408/71 read in conjunction, depending on the case, with Articles 8a, 48 and 52 of the Treaty.
52 It follows from all the foregoing considerations that Article 94(2) of Regulation No 1408/71, read in conjunction, depending on the case, with Articles 8a, 48 and 52 of the Treaty, is to be interpreted as precluding application of a Member State's legislation under which child-raising periods completed in another State party to the EEA Agreement or in another Member State of the European Union are not treated as substitute periods for the purposes of old-age insurance unless:
- they were completed after the entry into force of that regulation in the first State, and
- the applicant receives, or received, for the children concerned, cash maternity allowances or equivalent allowances under the legislation of that same State,
when such periods completed in national territory are treated as substitute periods for the purposes of old-age insurance without any limitation in time or any other condition.