Janina Wencel v Zakład Ubezpieczeń Społecznych w Białymstoku.
Date: 2013-05-16
33. Moreover, according to settled case‑law, although Regulation No 1408/71, as new legislation concerning social security for migrant workers applicable in Poland with effect from 1 May 2004, was, in principle, valid at that point only for the future, it may nevertheless apply to the future effects of situations which came about during the period of validity of the old legislation (see, to that effect, Case C‑290/00 Duchon  [2002] ECR I‑3567, paragraph 21 and the case‑law cited).
35. With regard, second, to the applicability ratione materiae  of Regulation No 1408/71, it should be recalled that, under Article 7(2)(c) of that regulation, the provisions of social security conventions set out in Annex III to the regulation continue to apply, notwithstanding the provisions of Article 6 of the regulation, which provides that the regulation is to replace the provisions of any social security convention binding two or more Member States as regards persons and matters which it covers (Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others [2007] ECR I‑11895, paragraph 87).
37. Accordingly, Regulation No 1408/71 continues to apply only to the extent that the bilateral conventions concluded before its entry into force do not impede its application (see, to that effect, Case 28/68 Torrekens  [1969] ECR 125, paragraphs 19 to 21). However, an EU law provision which, like Article 7(2) of that regulation, gives precedence to the application of a bilateral convention, cannot have a purport that conflicts with the principles underlying the legislation of which it is part (see, by analogy, Case C‑533/08 TNT Express Nederland  [2010] ECR I‑4107, paragraph 51).
39. Those principles, which underlie the provisions for the coordination of national social security legislation, are closely connected with freedom of movement for persons, the most important principle of which is that the activities of the European Union are to include, in particular, the abolition, as between Member States, of obstacles to freedom of movement for persons (see, to that effect, Case C‑127/11 van den Booren  [2013] ECR I‑0000, paragraph 43 and the case‑law cited).
45. Since it is not possible, however, to ascertain on the basis of the wording of Article 10 of Regulation No 1408/71 whether it is permissible under the regulation to have two habitual residences in two different Member States, it must be borne in mind that the regulation establishes a system for the coordination of national social security schemes and lays down, in Title II, rules governing the determination of the legislation to be applied.
46. The Court has already held that those provisions are not only intended to ensure that the persons concerned are not left without social security cover because there is no legislation which is applicable to them (see, to that effect, Case 92/63 Nonnenmacher  [1964] ECR 281, pp. 281, 287 and 288), but also to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may arise from that situation (see, to that effect, Case 60/85 Luijten  [1986] ECR 2365, paragraph 12).
47. The principle that the person concerned is to be subject to the social security scheme of only one Member State finds expression in particular in Article 13(1) (see, to that effect, inter alia, Luijten , paragraph 13) and Article 13(2)(f) of Regulation No 1408/71, as observed by the Advocate General at point 28 of his Opinion, as well as Article 14a(2) of the regulation (Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraph 12).
48. Since the system introduced by Regulation No 1408/71 uses the residence of the person concerned as the connecting factor for the determination of the legislation applicable, it cannot be accepted, without depriving the provisions referred to in the preceding paragraph of all practical effectiveness, that a person may have, for the purposes of Regulation No 1408/71, a number of habitual residences in different Member States.
49. That finding is supported by the Court’s case‑law on the concept of ‘residence’ for the purposes of European Union legislation applicable to social security schemes for migrant workers. Indeed, where a connection may be established between a person’s legal position and the legislation of a number of Member States, the Court has held that the concept of the Member State in which a person resides refers to the State in which that person habitually resides and where the habitual centre of his interests is to be found (see, to that effect, Case C‑90/97 Swaddling [1999] ECR I‑1075, paragraph 29 and the case‑law cited).
50. The development in the case‑law of a list of factors to be taken into consideration for the purpose of determining a person’s habitual residence, which is now codified in Article 11(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1), reflects the importance of establishing a single place of residence.
51. Consequently, it must be concluded that Article 10 of Regulation No 1408/71 must be interpreted as meaning that, for the purposes of the application of that regulation, a person cannot have simultaneously two habitual residences in two different Member States.
58. In so far as it transpires, as is apparent from the written observations submitted to the Court, that the Polish retirement pension received by Mrs Wencel in Poland was calculated on the basis of her employment record in that Member State and that the German survivor’s pension is paid to her on account of the employment record of her late husband in Germany, those two benefits cannot be considered to be benefits of the same kind (see, to that effect, Case 197/85 Stefanutti  [1987] ECR 3855, paragraph 13; Case C‑366/96 Cordelle  [1998] ECR I‑583, paragraphs 20 and 21; and van den Booren , paragraphs 32 and 33).
59. Second, it is apparent from Article 12(2) of Regulation No 1408/71 that provisions on reduction laid down in the legislation of a Member State may, unless that regulation provides otherwise, be invoked against persons who receive a benefit from that Member State if they can claim other social security benefits, even when those benefits are acquired under the legislation of another Member State (Case C‑107/00 Insalaca  [2002] ECR I‑2403, paragraph 22).
64. As already pointed out at paragraph 37 above, the interpretation of Regulation No 1408/71 thus arrived at is to be understood without prejudice to the outcome which might result were the provisions of primary law found to be applicable. The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (Case C‑208/07 von Chamier-Glisczinski [2009] ECR I‑6095, paragraph 66 and the case‑law cited, and van den Booren , paragraph 38).
67. To the extent that the case in the main proceedings falls within the scope of that provision, it is not necessary to rule on the interpretation of Articles 20(2) TFEU and 21 TFEU. Those provisions, which set out generally the right of every citizen of the European Union to move and reside freely within the territory of the Member States, find specific expression in Article 45 TFEU in relation to freedom of movement for workers (see, to that effect, Case C‑379/11 Caves Krier Frères [2012] ECR I‑0000, paragraph 30 and the case law cited).
68. In that regard, it is sufficient to note that Article 45 TFEU gives effect to a fundamental principle under which, in particular, the activities of the European Union are to include the abolition, as between Member States, of obstacles to freedom of movement for persons ( van den Booren , paragraph 43 and the case-law cited).
69. As a result, European Union law militates against any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Member State nationals of the fundamental freedoms guaranteed by the Treaty ( van den Booren , paragraph 44 and the case‑law cited).
70. National measures of that kind may be allowed only if they pursue a legitimate objective in the public interest, are appropriate for the purpose of ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued ( van den Booren , paragraph 45 and the case-law cited).
71. Accordingly, it is for the national court to assess the compatibility of the rules of national legislation at issue with the requirements of European Union law by determining whether the rule requiring the withdrawal of a pension entitlement and the repayment of sums to which, it is claimed, the person concerned was not entitled, which applies without distinction to Polish nationals and to nationals of other Member States, does not in fact lead, in respect of the person concerned, to an unfavourable situation in comparison with that of a person whose situation has no cross-border element, and, if such a disadvantage is established in the present case, whether the national rule at issue is justified by objective considerations and is proportionate to the legitimate objective pursued by national law ( van den Booren , paragraph 46).
72. In carrying out that examination, the referring court should also bear in mind that the principle of cooperation in good faith laid down in Article 4 TFEU 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 van Munster , paragraph 32, and Leyman , paragraph 49).