Maria Vester v Rijksinstituut voor ziekte- en invaliditeitsverzekering.
Date: 2019-03-14
29


In order to give a useful answer to the referring court, it must be recalled, as a preliminary point, that Regulation No 883/2004, the aim of which is to coordinate the disparate national systems, allows different national social security schemes to exist, but does not set up a common scheme of social security. Thus, according to settled case-law, Member States retain the power to organise their own social security schemes (see, by analogy, judgments of 21 February 2013, Salgado González, C‑282/11, EU:C:2013:86, paragraph 35 and the case-law cited, and of 7 December 2017, Zaniewicz-Dybeck, C‑189/16, EU:C:2017:946, paragraph 38.)
30


Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits (judgments of 21 February 2013, Salgado González, C‑282/11, EU:C:2013:86, paragraph 36 and the case-law cited, and of 7 December 2017, Zaniewicz-Dybeck, C‑189/16, EU:C:2017:946, paragraph 39).
31


In exercising those powers, Member States must nonetheless comply with EU law and, in particular, with the provisions of the FEU Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States (judgments of 21 February 2013, Salgado González, C‑282/11, EU:C:2013:86, paragraph 37 and the case-law cited, and of 7 December 2017, Zaniewicz-Dybeck, C‑189/16, EU:C:2017:946, paragraph 40).
32


In this respect, it must be held that the FEU Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, such an extension or transfer may be to the worker’s advantage in terms of social security or not, according to circumstances. It follows that, even where its application is less favourable, such legislation is still compatible with Articles 45 and 48 TFEU if it does not place the worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and if it does not simply result in the payment of social security contributions on which there is no return (see, to that effect, judgment of 1 October 2009, Leyman, C‑3/08, EU:C:2009:595, paragraph 45 and the case-law cited).
33


Thus, the Court has repeatedly held that the aim of Article 45 TFEU would not be met if, through exercising their right to freedom of movement, migrant workers were to lose social security advantages guaranteed to them by the laws of a Member State. Such a consequence might discourage European Union workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (judgment of 1 October 2009, Leyman, C‑3/08, EU:C:2009:595, paragraph 41 and the case-law cited).
45


The Court has already held that, where such a difference in legislation exists, the principle of cooperation in good faith laid down in Article 4(3) TEU requires the competent authorities in the Member States to use all the means at their disposal to achieve the aim of Article 45 TFEU (see, to that effect, judgment of 1 October 2009, LeymanC‑3/08, EU:C:2009:595, paragraph 49 and the case-law cited).
46


It must be recalled, in that regard, that, according to settled case-law, where national law, in breach of EU law, provides that a number of groups of persons are to be treated differently, the members of the group placed at a disadvantage must be treated in the same way and made subject to the same arrangements as the other persons concerned. The arrangements applicable to members of the group placed at an advantage remain, for want of the correct application of EU law, the only valid point of reference (judgments of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 46 and the case-law cited, and of 28 June 2018, Crespo Rey, C‑2/17, EU:C:2018:511, paragraph 73).