Instituto Nacional de la Seguridad Social v Jesús Crespo Rey.
Date: 2018-06-28
34


In that regard, it should be recalled that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and tribunals and the Court of Justice, any assessment of the facts in the case is a matter for the national court or tribunal. Similarly it is solely for the national court before which the dispute has been brought and which must assume responsibility for the forthcoming 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 EU law, the Court is, in principle, bound to give a ruling (see, inter alia, judgments of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 41, and of 22 October 2009, Zurita García and Choque Cabrera, C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 34 and the case-law cited).
35


The Court may refuse to rule on a question referred 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 (judgments of 5 December 2006, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25, and of 22 September 2016, Breitsamer und Ulrich, C‑113/15, EU:C:2016:718, paragraph 33).
36


That presumption of relevance cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject matter of those proceedings depends (judgments of 5 December 2006, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 26, and of 22 September 2016, Breitsamer und Ulrich, C‑113/15, EU:C:2016:718, paragraph 34).
40


It should be observed that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 39 and the case-law cited).
41


Consequently, even if, formally, the referring court has limited its questions to the interpretation of paragraph 2 of the section ‘Spain’ in Annex XI to Regulation No 883/2004, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute (see, by analogy, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 40 and the case-law cited).
45


As a preliminary point, it should be noted that Regulation No 883/2004 does not set up a common scheme of social security, but allows different national schemes to exist and its sole objective is to ensure the coordination of those schemes. Thus, according to the Court’s settled case-law, Member States retain the power to organise their own social security schemes (see, inter alia, judgment 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).
46


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).
47


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).
48


As is apparent from the preamble to and Articles 1 and 16(2) of the Agreement on the free movement of persons, the objective of the Agreement is to bring about, for the benefit of nationals of the European Union and of the Swiss Confederation, the free movement of persons in the territory of the contracting parties to that agreement based on the rules applying in the European Union, the terms of which must be interpreted in accordance with the case-law of the Court of Justice (judgments of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 40, and of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraph 36).
49


In that context, it should be noted that that objective includes, pursuant to Article 1(a) and (d) of the Agreement, the objective of granting to those nationals, inter alia, a right of entry, residence, access to work as employed persons and the same living, employment and working conditions as those accorded to nationals of the individual States in question (judgment of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraph 37).
51


Article 9 of Annex I to the Agreement on the free movement of persons, entitled ‘Equal treatment’, ensures the application of the principle of non-discrimination laid down in Article 2 of the Agreement in connection with the free movement of workers (judgments of 19 November 2015, Bukovansky, C‑241/14, EU:C:2015:766, paragraph 36 and the case-law cited, and of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraph 40).
70


To the extent that the referring court is uncertain as to what consequences it must draw from a possible incompatibility of national legislation with EU law, it must be borne in mind that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 43 and the case-law cited).
71


It is true that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem (judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 44 and the case-law cited).
72


If an interpretation of national law in conformity with EU law is not possible, the national court must fully apply EU law and protect rights which the latter confers on individuals, disapplying, if necessary, any provision in so far as its application would, in the circumstances of the case, lead to a result contrary to EU law (judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 45 and the case-law cited).
73


Where national law, in breach of EU law, provides for different treatment between a number of groups of persons, 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 (judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 46 and the case-law cited).