Ursula Elsen v Bundesversicherungsanstalt für Angestellte.
Date: 2000-11-23
25 In response to that submission, the Court observes that, pursuant to Article 13(2)(a) and (b) of Regulation No 1408/71, a person employed or self-employed in the territory of one Member State is subject to the social security legislation of that Member State even if he resides in the territory of another Member State.
26 Admittedly, in the present case, although the plaintiff had a gainful occupation in Germany until March 1985, when she resided with her family in France, she has not worked since that date. However, it must be pointed out that, as regards the taking into account, for the purposes of old-age insurance, of unbroken periods of child-rearing following the birth of her child, Mrs Elsen worked exclusively in Germany and was subject, as a frontier worker, to the German legislation when the child was born. Thus a close link can be established between the periods of child-rearing concerned and the periods of insurance completed in Germany by virtue of her occupational activity in that State. It is precisely because she had completed the latter periods that Mrs Elsen requested the German institution to take into account the subsequent periods devoted to rearing her child.
27 Consequently, it must be held - and the German Government has not disputed this point - that the German legislation is applicable in the plaintiff's situation.
28 In those circumstances, as regards the attribution of those periods of child-rearing for the purposes of old-age insurance, Mrs Elsen cannot be regarded under Article 13(2)(f) of Regulation No 1408/71 as having ceased all occupational activity and subject for that reason to the legislation of the State in which she resided. That provision specifically provides for the legislation of the State of residence to apply only where the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs. As regards the attribution of periods devoted to rearing a child born at a time when, as here, the parent pursued an occupation in a Member State and was therefore subject to the social security legislation of that State, that legislation remains applicable, in accordance with Article 13(2)(a) of Regulation No 1408/71.
33 In that regard, without its being necessary to consider the scope, the applicability and, if need be, the validity of point 19 of Annex VI, section C, of Regulation No 1408/71, as inserted by Regulation No 2195/91, it is sufficient to point out that, although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, comply with Community law and, in particular, the Treaty provisions on freedom of movement for workers (see, in particular, Case C-120/95 Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831, paragraph 23, and Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931, paragraph 19) or again the freedom of every citizen of the Union to move and reside in the territory of the Member States.
34 Provisions such as those at issue in the main proceedings are disadvantageous to Community nationals who have exercised their right to move and reside freely in the Member States, as guaranteed in Article 8a of the EC Treaty (now, after amendment, Article 18 EC). By transferring his residence to another Member State while continuing to work in Germany, a Community national would (under the legislation of that State) automatically lose credit for periods of child-rearing completed in the State of residence.
35 Furthermore, Regulation No 1408/71 itself, which was adopted on the basis, inter alia, of Article 51 of the EC Treaty (now, after amendment, Article 42 EC), contains a number of provisions designed to ensure that social security benefits are payable by the competent State, even where the insured, who has worked exclusively in his State of origin, resides in or transfers his residence to another Member State. Those provisions undoubtedly help to ensure freedom of movement not only for workers, under Article 48 of the EC Treaty (now, after amendment, Article 39 EC), but also for citizens of the Union, within the Community, under Article 8a of the Treaty.