Doris Reichel-Albert v Deutsche Rentenversicherung Nordbayern.
Date: 2012-07-19
25. It is settled case-law in that regard that, in general, the principle of legal certainty precludes a European Union measure from taking effect from a point in time before that measure was published, although it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected and, in so far as it follows clearly from the terms, objectives or general scheme of the rules of law concerned, that such effect must be given to them (see, to that effect, Case C-256/07 Mitsui & Co. Deutschland  [2009] ECR I-1951, paragraph 32 and the case-law cited).
34. In those circumstances, 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 Reichel-Albert of child-raising periods in Belgium, that provision would still not be relevant in the circumstances of the main proceedings as regards taking into account child-raising periods for the purposes of old-age insurance (see, to that effect, Kauer , paragraph 31).
35. The fact that a person like Mrs Reichel-Albert worked and contributed in only one Member State, both before and after temporarily transferring her place of residence, solely on family-related grounds, to another Member State where she never worked or contributed, 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 first Member State under consideration (see, to that effect, Elsen , paragraphs 25 to 28, and Kauer , paragraph 32). It was indeed on account of completion of those latter periods that Mrs Reichel-Albert requested the DRN to take account of periods spent in raising her children during a break in her working career.
36. Consequently, the German legislation is applicable in a situation such as Mrs Reichel-Albert’s and, as regards the crediting of those periods of child-rearing for the purposes of old-age insurance, Mrs Reichel-Albert cannot be regarded as coming under the jurisdiction of her Member State of residence during the periods concerned (see, to that effect, Elsen , paragraph 28).
38. In this respect it is important to bear in mind that, although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, observe European Union law and, in particular, the provisions of the Treaty on freedom of movement for citizens as guaranteed by Article 21 TFEU (see, to that effect, Elsen , paragraph 33, and Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I-1683, paragraph 43).
39. More specifically, the Court, in paragraph 34 of Elsen , took the opportunity to state, in respect of an earlier version of the provisions at issue in the main proceedings, that such provisions are disadvantageous to European Union nationals who have exercised their right to move and reside freely in the Member States, as guaranteed by Article 21 TFEU.
41. In so doing, such persons are accorded, in the Member State of which they are nationals, treatment less favourable than that which they would have enjoyed had they not availed themselves of the opportunities offered by the Treaty in relation to freedom of movement (see Case C-503/09 Stewart  [2011] ECR I-6497, paragraph 83 and the case-law cited).
42. National legislation which places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State thereby gives rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move (Case C-520/04 Turpeinen  [2006] ECR I-10685, paragraph 22).
43. Moreover, it has not been established or even argued by the Member State concerned that legislation such as that at issue in the main proceedings can be justified where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions (see, to that effect, Case C-391/09 Runevič-Vardyn and Wardyn  [2011] ECR I-3787, paragraph 83 and the case-law cited).