Doris Habelt (C-396/05), Martha Möser (C-419/05) and Peter Wachter (C-450/05) v Deutsche Rentenversicherung Bund.
Date: 2007-12-18
55. To begin with, it must be observed that, under Article 94(2) of Regulation No 1408/71, people in the position of Ms Habelt and Ms Möser may rely on the inclusion, for the determination of rights pursuant to the regulation, in this case from 1 February 1988, of all periods of insurance, employment or residence completed under German legislation of a Member State before the date of application  of that regulation (see, to that effect, inter alia, Case C-28/00 Kauer [2002] ECR I-1343, paragraphs 22 and 46).
57. According to the case-law of the Court, even if they are not in gainful occupation, pensioners entitled to draw pensions under the legislation of one or more Member States come within the provisions of the Regulation concerning ‘workers’ by virtue of their insurance under a social security scheme (see, inter alia, Case C‑194/96 Kulzer  [1998] ECR I‑895, paragraph 24).
63. A benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C-286/03 Hosse  [2006] ECR I-1771, paragraph 37).
64. As the Court has consistently held, the aim of Articles 39 EC and 40 EC and Article 50 of the EC Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid (see inter alia, Case  C-215/99 Jauch   [2001] ECR I-1901, paragraph 20).
78. It must be observed that the provisions of Regulation No 1408/71 on the waiver of residence clauses constitute measures to give effect to Article 42 EC taken in order to establish, in the field of social security, the freedom of movement for workers guaranteed by Article 39 EC (see inter alia Jauch , paragraph 20, and Case C-287/05 Hendrix  [2007] ECR I-0000, paragraph 52). The Court has also held that the provisions of Regulation No 1408/71 which are designed to ensure that social security benefits are payable by the competent State, even where the insured, who has worked exclusively in his State of origin, resides in or transfers his residence to another Member State, undoubtedly help to ensure freedom of movement not only for workers, under Article 39 EC, but also for citizens of the Union, within the European Community, under Article 18 EC (see, to that effect, inter alia, Case C-135/99 Elsen  [2000] ECR I-10409, paragraph 35).
81. As regards the special non-contributory benefits mentioned in Annex IIa to Regulation No 1408/71, the Court has held that it is permissible for the Community legislature to adopt, in the course of implementation of Article 42 EC, provisions derogating from the principle of the exportability of social security benefits. In particular, as the Court has in the past accepted, the grant of benefits closely linked with the social environment may be made subject to a condition of residence in the State of the competent institution (see, inter alia, Case 313/86 Lenoir  [1988] ECR 5391, paragraph 16, Case C-20/96 Snares  [1997] ECR I-6057, paragraph 42, and Case C‑154/05 Hershberger-Lap and Dams-Schipper  [2006] ECR  I-6249, paragraph 33).
83. Moreover, although the Court has accepted that the risk of seriously undermining the financial balance of the social security system may justify a barrier of that kind (see, inter alia, Case C‑158/96 Kohl  [19989 ECR I-1931, paragraph 41), it must be found that the German Government has failed to demonstrate how transfers of residence from Germany such as those which took place in the cases in the main proceedings, are liable to impose a heavier financial burden on the German social security scheme.
87. Under Article 7(2)(c) of Regulation No 1408/71, the provisions of the social security conventions mentioned in Annex III to that regulation continue to apply notwithstanding the provisions of Article 6 of the regulation, according to which the regulation is to replace generally the provisions of any social security convention binding two or more Member States as regards persons and matters which it covers.
97. The fact that, after leaving Romania, Mr Wachter settled in Austria and did not subsequently work or reside in another Member State does not alter that conclusion, particularly as the person concerned claims an old-age pension under the legislation of a Member State other than the one in which he resides (see, to that effect, inter alia, Case C-389/99 Rundgren  [2001] ECR I-3731, paragraph 35).
119. Subsequently, the Court made clear that that principle could not, however, apply to workers who did not exercise their right to freedom of movement until after the entry into force of that regulation (see, inter alia, Case C-475/93 Thévenon [1995] ECR I‑3813, paragraph 28).
122. As the Court held in paragraph 15 of its judgment in Case C-214/94 Boukhalfa [1996] ECR I-2253, provisions of Community law may apply to professional activities pursued outside Community territory as long as the employment relationship retains a sufficiently close link with the Community (see, in particular, Case 237/83 Prodest  v Caisse Primaire d’Assurance Maladie de Paris  [1984] ECR 3153, paragraph 6, Case 9/88 Lopes da Veiga  v Staatssecretaris van Justitie [1989] ECR 2989, paragraph 15, and Case C-60/93 Aldewereld  v Staatssecretaris van Financiën  [1994] ECR I-2991, paragraph 14).  That principle must be deemed to extend also to cases in which there is a sufficiently close link between the employment relationship, on the one hand, and the law of a Member State and thus the relevant rules of Community law, on the other.