Sulo Rundgren.
Date: 2001-05-10
26 The Court has made clear in that connection that, for the same reasons which led it to hold in Case 182/78 Pierik [1979] ECR 1977, paragraph 4, that the term worker also covered retired workers, the term civil servant, which appears in a provision of general scope defining the persons falling within the scope of Regulation No 1408/71, must be construed as covering retired civil servants who no longer pursue a professional activity where they are, or have been, subject to the legislation of a Member State to which Regulation No 1408/71 applies (Case C-194/96 Kulzer [1998] ECR I-895, paragraph 26).
29 As regards the fact that Mr Rundgren no longer pursues his professional activity and moved from Sweden to Finland before the date on which Regulation No 1408/71 entered into force in Finland, the Court has already pointed out that under Article 94(3) of Regulation No 1408/71 a right is acquired under that Regulation even though it relates to a contingency which materialised prior to the date of application of that Regulation in the territory of the Member State concerned. It has also pointed out that Article 94(2) of Regulation No 1408/71 provides that all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before the date of its application in the territory of that Member State are to be taken into consideration for the determination of rights acquired under the provisions of the Regulation (Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraphs 24 and 25).
32 As to the question whether Regulation No 1612/68 applies in a situation such as Mr Rundgren's, the Court has already held, in particular in its judgment in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32, that in the context of Article 48 of the Treaty and Regulation No 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended (Case C-57/96 Meints [1997] ECR I-6689, paragraph 40) and a person who is genuinely seeking work must also be classified as a worker.
35 The answer to the first question must therefore be that Regulation No 1408/71 applies to a person who, at the time when that Regulation entered into force in a Member State:
- was resident in that State but was not carrying on an occupational activity and was receiving a pension there from another Member State in his capacity as a retired civil servant,
- while being subject in his State of residence to laws relating to the branches of social security referred to in the Regulation.
However, Regulation No 1612/68 does not apply in principle to a person who has moved his place of residence from one Member State, in which he had ceased to be in employment, to another Member State, in which he is not employed and is not seeking employment.
The second question
41 In that regard, it should first be borne in mind that, in the absence of any definition of pension payable, it is necessary, according to settled case-law, when interpreting a provision of Community law to consider its wording, its context and its aims (Case C-84/95 Bosphorus [1996] ECR I-3953, paragraph 11, Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23, and Case C-151/98 P Pharos v Commission [1999] ECR I-8157, paragraph 19).
43 Article 27 of Regulation No 1408/71 deals with the situation of a pensioner who is entitled to draw pensions under the legislation of two or more Member States, including that of the Member State in whose territory he resides, and is also entitled to benefits in that Member State. Article 28 of the Regulation deals with the situation of a pensioner who is entitled to draw a pension or pensions under the legislation of one or more Member States, other than the Member State in whose territory he resides, and who is not entitled to benefits in that Member State. Article 28a of the Regulation governs a situation similar to that covered by Article 28, the difference being that there is an entitlement to benefits in kind in the Member State of residence.
44 The purpose of Articles 27, 28 and 28a is to identify, in the various situations they describe, first, the institution responsible for providing persons entitled to a pension with sickness and maternity benefits and, second, the institution responsible for bearing the cost.
45 Where the State in whose territory the pensioner resides does not subject the right to receive benefits in kind to conditions of insurance or employment, Article 28a of Regulation No 1408/71 imposes the cost of those benefits in principle to the institution of one of the Member States competent in respect of pensions, in order that their cost should not be borne by the Member State in which the person concerned resides, merely by virtue of the fact that he resides there. The provision seeks to ensure that Member States whose legislation confers a right to receive benefits in kind merely by virtue of residence in their territory are not penalised for so doing. It does so by determining which institution will bear the costs of the benefits in kind provided by those States in accordance with rules identical to those which apply, pursuant to Article 28 of the Regulation, in the case of Member States which do not confer such a right. Under those rules, the institution of the place of residence provides the benefits in kind to the pensioners on behalf of the institution of one of the Member States competent in respect of pensions, which bears the costs.
46 Under the system thus established by Articles 27, 28 and 28a of Regulation No 1408/71, the institution which has to bear the cost of the benefits in kind will always be an institution of a Member State competent in respect of pensions, since the pensioner would have a right to those benefits under the legislation of that Member State if he resided in its territory. Where two or more Member States are competent in respect of pensions, the cost of the benefits in kind is attributed to one of them on the basis of specific criteria such as the place of residence of the person concerned or, where none of those Member States is the state of residence of the person concerned, the period of time during which that person was subject to the legislation of each of those Member States.
47 The connection thus established under that system between the competence to provide pensions and the obligation to bear the cost of benefits in kind leads to the conclusion that that obligation is incidental to an actual competence in respect of pensions. Therefore, the cost of benefits in kind cannot be borne by the institution of a Member State which has only a hypothetical competence in respect of pensions. It follows that Articles 27, 28 and 28a of Regulation No 1408/71, when they refer to a pension payable, are concerned with a pension which is actually paid to the person concerned.
49 In that regard, it follows from the provisions of Article 33(1) of Regulation No 1408/71 that, contrary to the Finnish Government's submission, the Regulation does not authorise the Member State in whose territory the pensioner resides to require that person to pay the contributions for sickness insurance prescribed by its domestic legislation, calculated by reference to his income from pensions paid by another Member State. Article 33(1) merely authorises, in the cases in which it applies, the relevant institution of a Member State to make deductions, in order to cover inter alia sickness benefits, from the pension payable by it, that is to say, actually paid by it.
52 In that regard, it must be borne in mind that Article 33(2) of Regulation No 1408/71 concerns the cases referred to in Article 28a of that Regulation, in which the cost of sickness and maternity benefits in kind provided by the institution of the place of residence is borne by an institution of one of the Member States competent in respect of pensions. As the Court has already pointed out, Article 33(2) prohibits the Member State of residence, which operates a general insurance scheme and under whose legislation no pension is payable, from requiring the pensioner, by virtue of his residence in its territory, to pay contributions to cover benefits payable by the institution of another Member State (Case C-140/88 Noij [1991] ECR I-387, paragraph 12).
53 The Court has also held that the rules set out in Article 33 of Regulation No 1408/71 concerning sickness or maternity benefits constitute the application of a more general principle according to which a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State (Noij, paragraph 14).
56 In those circumstances, the general principle mentioned in paragraph 53 of this judgment precludes any contributions, such as the contributions towards the State pension prescribed by Finnish legislation, from being claimed from Mr Rundgren, since he is entitled to benefits having a similar purpose, for which the Kingdom of Sweden assumes responsibility as the Member State competent in his regard in respect of pensions.