Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska.
Date: 2011-03-03
22. It should be noted, as a preliminary point, that the dispute between the Zakład Ubezpieczeń Społecznych and Ms Tomaszewska concerns the acquisition of entitlement to a retirement pension, a question which comes within the scope of Article 45(1) of Regulation No 1408/71, whereas the rules concerning the calculation of the amount of the benefits are laid down in Article 46 et seq. of that regulation (see, to that effect, Joined Cases C‑45/92 and C‑46/92 Lepore and Scamuffa  [1993] ECR I‑6497, paragraph 13, and Case C‑251/94 Lafuente Nieto  [1996] ECR I‑4187, paragraph 49).
24. According to settled case-law, the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between European Union workers (Case C‑12/93 Drake  [1994] ECR I‑4337, paragraph 27; Joined Cases C‑88/95, C‑102/95 and C‑103/95 Martínez Losada and Others  [1997] ECR I‑869, paragraph 43; and Case C‑306/03 Salgado Alonso  [2005] ECR I‑705, paragraph 27).
25. The system put in place by Regulation No 1408/71 is merely a system of coordination, concerning, inter alia, the determination of the legislation applicable to employed and self‑employed persons who make use, under various circumstances, of their right to freedom of movement (Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraph 20; Case C‑50/05 Nikula  [2006] ECR I‑7029, paragraph 20; and Case C‑103/06 Derouin  [2008] ECR I‑1853, paragraph 20).
26. It is inherent in such a system that the conditions governing the constitution of periods of employment or insurance will differ depending on the Member State in which the person concerned has worked. Those conditions are, in accordance with Article 1(r) of Regulation No 1408/71, defined exclusively by the legislation of the Member State under which the periods in question were completed.
27. In laying down those conditions, however, the Member States are required to comply with European Union law, in particular with the objective pursued by Regulation No 1408/71 and the principles on which it is based.
28. In that regard, it must be borne in mind that the objective of Regulation No 1408/71, as stated in the second and fourth recitals in its preamble, is to ensure free movement of employed and self‑employed persons within the European Union, while respecting the special characteristics of national social security legislation. To that end, as is clear from the fifth, sixth and tenth recitals in its preamble, that regulation upholds the principle of equality of treatment of workers under the various measures of national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right of free movement ( Piatkowski , paragraph 19; Nikula , paragraph 20; and Derouin , paragraph 20).
30. Thus, Article 45 of Regulation No 1408/71 implements the principle of aggregation of insurance, residence or employment periods as laid down in Article 42(a) EC. This is one of the basic principles governing European Union coordination of social security schemes in the Member States, its purpose being to ensure that exercise of the right, conferred by the EC Treaty, to freedom of movement does not have the effect of depriving workers of social security advantages to which they would have been entitled if they had spent their entire working life in only one 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 (Case C‑481/93 Moscato  [1995] ECR I‑3525, paragraph 28, and Salgado Alonso , paragraph 29).
31. Consequently, a Member State is entitled to impose a minimum contribution period for the acquisition of entitlement to a pension provided for by national legislation and to define the nature and limits of insurance periods which may be taken into account for that purpose, on condition that, in accordance with Article 45 of Regulation No 1408/71, periods completed under the legislation of any other Member State are also taken into consideration under the same conditions as if they had been completed under national legislation (see, to that effect, Salgado Alonso , paragraph 31).
38. As regards the argument put forward by the Polish Government, to the effect that the non-inclusion of contribution periods completed in other Member States for the purpose of determining the one-third limit which non-contribution periods may not exceed in relation to contribution periods is justified on grounds of administrative difficulties and other practical problems, suffice it to note that Article 39(3) EC allows for limitations on the exercise of the right of free movement of workers only in so far as such limitations can be justified on grounds of public policy, public security or public health.. Accordingly, apart from those cases expressly referred to in the Treaty, no impediments to the free movement of workers may be justified (see, to that effect, Case C‑10/90 Masgio  [1991] ECR I‑1119, paragraph 24, and Case C‑400/02 Merida  [2004] ECR I‑8471, paragraph 30).