Snezhana Somova v Glaven direktor na Stolichno upravlenie ‘Sotsialno osiguryavane’.
Date: 2014-11-05
28. That argument cannot be accepted. It must be borne in mind that, according to the Court’s settled case-law, the rules of the FEU Treaty governing freedom of movement for persons and the measures adopted to implement them cannot be applied to situations which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see judgment in Dereci and Others , C‑256/11, EU:C:2011:734, paragraph 60 and the case-law cited).
33. With respect to whether national legislation such as that at issue in the main proceedings is an unlawful restriction on the freedom of movement of workers, it should be pointed out that the Court has consistently held that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist; its sole objective is to ensure the coordination of those schemes. Thus, Member States retain the power to organise their social security schemes (see judgment in Salgado González , C‑282/11, EU:C:2013:86, paragraph 35 and the case-law cited).
34. Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits (judgment in Salgado González , EU:C:2013:86, paragraph 36 and the case-law cited).
35. In exercising those powers, Member States must nonetheless comply with EU law and, in particular, with the provisions of the Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States (judgment in Salgado González , EU:C:2013:86, paragraph 37 and the case-law cited).
36. It should also be recalled that all the provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by European Union nationals of occupational activities of all kinds throughout the European Union and preclude measures which might place such nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, inter alia, judgments in Bosman , C‑415/93, EU:C:1995:463, paragraph 94, and ITC , C‑208/05, EU:C:2007:16, paragraph 31 and the case-law cited).
37. Provisions of national legislation which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute obstacles to that freedom even if they apply without regard to the nationality of the workers concerned (see, inter alia, judgments in Bosman , EU:C:1995:463, paragraph 96; ITC , EU:C:2007:16, paragraph 33, and Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken , C‑514/12, EU:C:2013:799, paragraph 30 and the case-law cited).
38. Consequently, the provisions of the Treaty relating to freedom of movement of persons preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the fundamental freedoms guaranteed by the Treaty (see, to that effect, judgments in Government of the French Community and Walloon Government , C‑212/06, EU:C:2008:178, paragraph 45, and Casteels , C‑379/09, EU:C:2011:131, paragraph 22).
41. With respect to a possible restriction of the fundamental freedoms, it must be noted that that provision requires, in order for an old-age pension to be awarded, a formal discontinuance of the payment of contributions which results in a termination of occupational activities. The Bulgarian Government confirmed, at the hearing, that a very brief discontinuance lasting one day was sufficient to fulfil that condition. Moreover, the insured person was not denied the right to exercise an occupational activity after the award of an old-age pension and could aggregate that pension with a gainful occupational activity.
42. Such a discontinuance in the payment of contributions, as easy as it may be for a worker carrying out his activities in Bulgaria, may be difficult, even impossible, for a worker exercising his freedom of movement or of establishment by carrying out an occupational activity as an employee or as a self-employed worker in another Member State. In particular, the administrative steps liable to flow from that discontinuance in another Member State could lead or even require a worker placed in a situation similar to that of Ms Somova to cease his occupational activity for an unpredictable period of time, longer than the minimum one day required by Bulgarian legislation, in order to be granted an old-age pension pursuant to that legislation.
43. That discontinuance could call into question the pursuit, by a self-employed person, of his occupational activity and make his professional circumstances precarious given that, following the discontinuance, he would have no guarantee of pursuing his employment or finding another.
44. As noted by the Advocate General in point 49 of his opinion, that discontinuance could also have, following that worker’s return to work, negative consequences on pay, career progression and prospects of promotion, such as for example, a loss of the rights to paid leave and a reduction in grade or seniority.
45. It follows that a provision of national law, such as Article 94(1) of the KSO, is liable to prevent or dissuade people who are entitled to an old-age pension under Bulgarian legislation from carrying out an occupational activity in another Member State and therefore constitutes an obstacle to freedom of movement and in particular the freedom of establishment referred to in Article 49 TFEU.
Justification for the restriction
46. A restriction on the fundamental freedom to provide services is warranted only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons in the public interest. However, in such a case, the application of such a measure must also be suitable for securing the attainment of that objective and must not go beyond what is necessary in order to achieve it (see, inter alia, judgments in ITC , EU:C:2007:16, paragraph 37, and Wencel , C‑589/10, EU:C:2013:303, paragraph 70 and the case-law cited).
52. Concerning first of all Article 94(2) of Regulation No 1408/71, it should be noted that it provides that all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before 1 October 1972 or before the date of application of the regulation in the territory of that Member State or in a part of the territory of that State are to be taken into consideration for the determination of the rights acquired under the provisions of that regulation.
54. That literal interpretation of Article 94(2) of the regulation is corroborated by the settled case-law of the Court according to which the provisions of Regulation No 1408/71 determining the applicable legislation form a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as concerns the persons who are subject thereto and the territory within which the national provisions take effect (see, inter alia, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 51 and the case-law cited).
55. Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by the regulation depends solely on the objective situation of the worker concerned (judgment in van Delft and Others , EU:C:2010:610, paragraph 52 and the case-law cited).
56. In this context, the Court has held with reference to migrant workers that neither the FEU Treaty, in particular Article 45 TFEU, nor Regulation No 1408/71 gives those workers the option to waive in advance the benefit of the mechanism introduced inter alia by Article 28(1) of that regulation (judgment in van Delft and Others , EU:C:2010:610, paragraph 53 and the case-law cited).
59. Articles 45 and 46(2) of that regulation are also mandatory, since their wording does not confer any right to choose on an insured person who falls within the scope of those provisions (see, by analogy, judgment in van Delft and Others , EU:C:2010:610, paragraph 57). Consequently, the insured person cannot waive the application of those articles by not declaring, in the application for the award of the old-age pension to which he is entitled under the legislation of a Member State, the periods of insurance completed in another Member State.