Simon J. M. van Munster v Rijksdienst voor Pensioenen.
Date: 1994-10-05
18 As regards freedom of movement for workers, Article 51 of the Treaty leaves in being differences between the Member States' social security systems and, consequently, in the rights of persons working in the Member States. It follows that substantive and procedural differences between the social security systems of individual Member States are unaffected by Article 51 of the Treaty (see the judgment in Case C-227/89 Roenfeldt [1991] ECR I-323, at paragraph 12).
27 While it is true, as pointed out in paragraph 18, that Article 51 of the Treaty leaves in being differences between the Member States' social security systems and hence in the rights of persons working in the Member States, it is not, however, in dispute that the aim of Articles 48 to 51 of the Treaty 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 Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see the judgment in Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 22).
28 As regards retirement pensions such as those in point in the main proceedings, it should be noted that both the migrant worker and the worker whose entire working life has been in only one State ("the non-migrant worker") acquire their pension entitlements progressively throughout their careers.
29 The only difference between them is that the non-migrant worker acquires the entirety of his pension entitlements under a single body of legislation, whereas the migrant worker acquires them in sections corresponding to successive periods of work completed in different Member States under different legislative systems. In such situations, Article 51 of the Treaty aims to create, by coordination rather than by harmonization, a unified career, for social security purposes, for the migrant worker.
30 In the present case, it appears that application of national legislation to a migrant worker in the same way as to a non-migrant worker gives rise to unforeseen consequences, hardly compatible with the aim of Articles 48 to 51 of the Treaty and attributable to the very fact that the migrant worker' s pension entitlements are governed by two different bodies of legislation.
31 Those differences can be traced to the fact that one of the two retirement schemes provides for a higher pension rate for a worker whose spouse is not in receipt of a retirement pension or equivalent benefit, it being assumed that such a pension or benefit increases the couple' s total income and may, in any event, be waived, while the other scheme, in the same circumstances, awards each spouse, on reaching retirement age, a non-renounceable pension of an equal amount, without however implying any increase at all in the couple' s total income.
32 Where such a difference in legislation exists, the principle of cooperation in good faith laid down in Article 5 of the EEC Treaty requires the competent authorities in the Member States to use all the means at their disposal to achieve the aim of Article 48 of the Treaty.
33 That requirement implies that those authorities should ascertain whether their legislation can be applied literally to migrant workers, in exactly the same way as to non-migrant workers, without ultimately causing migrant workers to lose a social security advantage and, consequently, discouraging them from actually exercising their right to freedom of movement.
34 When applying domestic law, the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law (see the judgment in Case 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673, paragraph 11, and to the same effect the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Case C-91/92 Faccini Dori [1994] ECR I-0000, paragraph 26).