Försäkringskassan v Elisabeth Bergström.
Date: 2011-12-15
27. Regarding the scope of the Agreement, it should first be noted that the second sentence in the preamble to the Agreement states that the Contracting Parties are ‘[r]esolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community’.
28. That freedom of movement would be impeded if a national of a Contracting Party were to be placed at a disadvantage in his country of origin solely for having exercised his right of movement.
29. Secondly, it should be borne in mind that Article 8 of the Agreement states that the Contracting Parties are to make provision, in accordance with Annex II to that Agreement, for the coordination of social security systems with the aims specified in that article. That provision does not refer, either directly or indirectly, to any requirement relating either to the place of residence of those persons to whom those social security provisions would apply or to the designation of the Contracting Party which would apply them.
30. One of the aims of Article 8, as set out in point (a) thereof, is ‘equality of treatment’. The general and explicit reference to that principle shows that, within the scope of Article 8 of the Agreement, that principle is to apply independently of Article 2 thereof, which makes application of the principle of non‑discrimination conditional upon the beneficiary being resident in the territory of the other Contracting Party.
31. Thirdly, paragraph 1 of Section A of Annex II to the Agreement provides for the application, as between the Contracting Parties, of Regulation No 1408/71, subject to certain adaptations which are not relevant, however, for analysing the question referred. Article 1(2) of that Annex states that the term ‘Member State(s)’ contained in the acts referred to in Section A of the Annex are to be understood to include Switzerland, in addition to the States covered by the relevant Community acts.
32. Lastly, it should be borne in mind that Regulation No 1408/71 applies not only to family benefits, but also to other benefit categories, including, for example, old-age benefits.
33. It follows that, without the application of the aggregation rule after the return of a worker to his country of origin, the coordination of the social security system in the Swiss Confederation with those of the Member States of the European Union would be precluded in a not insignificant number of situations, inter alia as regards the award of old-age benefits.
34. In those circumstances, it must be held that both the Agreement and Regulation No 1408/71 apply to the situation of a worker such as that described in paragraph 26 above.
The first question
41. The wording both of Article 8(c) of the Agreement and of Article 72 of Regulation No 1408/71 is completely unambiguous. Under Article 8(c) of the Agreement, aggregation includes ‘all periods’ taken into consideration by the national legislation of the countries concerned, while Article 72 of Regulation No 1408/71 requires ‘periods of insurance, employment or self-employment completed in any other Member State’ to be taken into account in the course of aggregation, as if they were periods completed under the legislation of the competent institution.
42. It should be borne in mind that Regulation No 1408/71 was adopted on the basis of Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and, subsequently, after amendment, Article 42 EC), which empowered the Council of the European Union to adopt such measures in the field of social security as were necessary to provide freedom of movement for workers, making arrangements to that end to secure the aggregation for migrant workers and their dependants, for the purposes of acquiring and retaining the right to benefit and of calculating the amount of benefit, of ‘all periods’ taken into account under the laws of the several countries.
43. That interpretation is consistent with the aim of the Agreement, which is to ensure the free movement of persons between the Swiss Confederation and the Community. It is also consistent with the principle of equal treatment laid down in Article 8(a) of the Agreement, given that it is aimed at ensuring that the exercise of the right to freedom of movement does not have the effect of depriving a migrant worker of social security advantages, as compared with other workers who have not exercised that right.
44. Accordingly, the institution of a Member State which is competent to award a family benefit would not be able to demand that an insurance period must have been completed in its own territory in addition to a period of employment or self-employment completed in another State – in the present case, in Switzerland.
53. Consequently, the answer to the second question is that Article 8(a) of the Agreement and Article 3(1), Article 23(1) and (2) and Article 72 of Regulation No 1408/71, and paragraph 1 of point N of Annex VI thereto must be interpreted as meaning that, where the amount of a family benefit, such as that at issue in the case before the referring court, falls to be determined in accordance with the rules governing sickness benefit, that amount – awarded to a person who has completed in full the necessary employment periods for acquiring that right in the territory of the other Contracting Party – must be calculated by taking into account the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit is sought.
Costs