Sociale Verzekeringsbank v F. van den Berg and Others.
Date: 2019-09-19
45


In that regard, it should be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).
46


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).
47


In that regard, the Court has consistently held that under the procedure provided for in Article 267 TFEU, it is not for the Court to determine whether the decision referred to it was taken in accordance with the rules of national law governing the organisation of the courts and legal proceedings (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 26 and the case-law cited).
50


To answer those questions, it should be recalled that in order to ensure free movement of workers within the European Union, while upholding the principle of equal treatment of those persons under the various measures of national legislation, Title II of Regulation No 1408/71 has established a system of coordination concerning, inter alia, the determination of the legislation applicable to employed and self-employed workers who make use of their right to freedom of movement. The completeness of that system of conflict rules has the effect of divesting the legislature of each Member State of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 34 and 35 and the case-law cited).
51


In that regard, Article 13 of Regulation No 1408/71 on the general rules for the determination of the applicable legislation provides, in paragraph 1, that the persons to whom that regulation applies are to be subject only to the legislation of a single Member State, which therefore excludes — subject to the cases provided for in Articles 14c and 14f — any possibility of the overlapping of the national legislation of Member States in respect of one and the same period (judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraph 36 and the case-law cited).
53


However, the principle of a single applicable legislation cannot deprive a Member State that does not have jurisdiction by virtue of the provisions of Title II of Regulation No 1408/71 of the possibility of granting, under certain conditions, child benefits or an old-age pension to a migrant worker under its own national law. The purpose of Regulation No 1408/71 is not to prevent the Member State of residence from granting, pursuant to its legislation, child benefits and old-age benefits to that person even where, under Article 13(2)(a) of that regulation, the person in question is subject to the legislation of a Member State where that person is in employment (see, to that effect, judgment of 23 April 2015, Franzen and Others, C‑382/13, EU:C:2015:261, paragraphs 58 to 61 and the case-law cited).
56


It is true that, according to the settled case-law of the Court, all the provisions of the TFEU on freedom of movement of persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the EU, and preclude measures which might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin. However, primary EU law cannot guarantee to a worker that moving to a Member State other than his Member State of origin will be neutral in terms of social security, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be more or less advantageous for the person concerned in that regard (see, to that effect, judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraphs 33 and 34 and the case-law cited).
57


As regards, in the first place, Article 45 TFEU, although it precludes any national measure which is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedom of movement guaranteed by that article, that article does not confer on a worker travelling to a Member State other than his Member State of origin any entitlement, in the host Member State, to the same social welfare coverage as that which he enjoyed in his Member State of origin under the legislation of the latter State (see, by analogy, judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraphs 33 and 35).
59


As regards, in the second place, Article 48 TFEU, which provides for a system for coordinating, and not harmonising, the legislation of the Member States, substantive and procedural differences between the social security schemes of individual Member States, and hence in the rights of persons who are insured persons there, are unaffected by that provision, as each Member State retains the power to determine in its legislation, in compliance with EU law, the conditions pursuant to which benefits may be granted under a social security scheme (judgment of 12 June 2012, Hudzinski and Wawrzyniak, C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 42).
68


In that regard, it should be noted that although, under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State, the fact remains that the purpose of that regulation is not to prevent the Member State of residence from granting, pursuant to its legislation, a social security benefit such as old-age pension to that person (see, to that effect, judgment of 20 May 2008, Bosmann, C‑352/06, EU:C:2008:290, paragraph 31).
69


In the judgment of 20 May 2008, Bosmann (C‑352/06, EU:C:2008:290, paragraph 32), the Court, referring to the judgments of 12 June 1986, Ten Holder (302/84, EU:C:1986:242), and of 10 July 1986, Luijten (60/85, EU:C:1986:307), specified that, in those particular contexts, which differ from that of the case in the main proceedings, those judgments could not serve to exclude the possibility for a Member State, which is not the competent State and which has not made the entitlement to child benefit contingent on employment and insurance, to grant such a benefit to a person residing in its territory, if the possibility to grant such a benefit arises, in actual fact, from its legislation.
75


It is also clear from the case-law of the Court that Articles 45 and 48 TFEU, and Regulation No 1408/71, which was adopted to implement them, are intended in particular to prevent the situation in which a worker who has exercised his right of free movement is treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (judgment of 12 June 2012, Hudzinski and Wawrzyniak, C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 80 and the case-law cited).