Raad van bestuur van de Sociale verzekeringsbank v F. Wieland and H. Rothwangl.
Date: 2016-10-27
45


In that regard, although Member States retain the power to organise the conditions of affiliation to their social security schemes, they must nonetheless, when exercising that power, comply with EU law and, in particular, the Treaty provisions on freedom of movement for workers (judgment of 17 January 2012, Salemink, C‑347/10, EU:C:2012:17, paragraph 39 and the case-law cited).
46


Consequently, those conditions may not have the effect of excluding from the scope of national legislation, such as that at issue in the main proceedings, persons to whom that legislation applies by virtue of Regulation No 1408/71; moreover, the compulsory insurance schemes must be compatible with the provisions of Articles 18 and 45 TFEU (judgment of 17 January 2012, Salemink, C‑347/10, EU:C:2012:17, paragraph 40).
51


In that regard, with respect to Article 94(1) of that regulation, which provides that no right is to be acquired under that regulation in respect of a period prior to 1 October 1972 or the date of its application in the territory of the Member State concerned, or in a part of that territory, it should be borne in mind that, according to the Court’s settled case-law, that provision is fully in line with the principle of legal certainty, which precludes a regulation from being applied retroactively, regardless of whether such application might produce favourable or unfavourable effects for the person concerned, unless a sufficiently clear indication can be found, either in the terms of the regulation or its stated objectives, which allows the conclusion to be drawn that the regulation was not merely providing for the future. Although the new law is thus valid only for the future, it also applies, according to a generally recognised principle, in the absence of a provision to the contrary, to the future effects of situations which came about during the period of validity of the old law (see, to that effect, judgment of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraphs 21 and 22 and the case-law cited).
52


Equally, in order to enable Regulation No 1408/71 to apply to the future effects of situations arising under the period of validity of the old law, Article 94(2) imposes the obligation to take into consideration, for the purposes of determining rights to benefit, all periods of insurance, employment or residence completed under the legislation of any Member State ‘before 1 October 1972 or before the date of its application in the territory of that Member State’. It follows, therefore, from that provision that a Member State is not entitled to refuse to take into account periods of insurance completed in the territory of another Member State, for the purposes of establishing a claimant’s retirement pension, for the sole reason that such periods were completed before the entry into force of that regulation with respect to him (judgments of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraph 23 and the case-law cited, and of 5 November 2014, Somova, C‑103/13, EU:C:2014:2334, paragraph 52).
59


Second, the expression ‘period of insurance’, which appears in Article 94(2) of Regulation No 1408/71 is defined in Article 1(r) of Regulation No 1408/71 as meaning ‘periods of contribution or periods of employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance’ (judgment of 7 February 2002, Kauer, C‑28/00, EU:C:2002:82, paragraph 25).
60


That reference to domestic legislation clearly shows that Regulation No 1408/71, particularly for the purposes of the aggregation of periods of insurance, refers to the conditions to which domestic law subjects the recognition of a specific period as equivalent to periods of insurance properly so called. However, such recognition of periods must be consistent with the provisions of the FEU Treaty on the free movement of persons (judgment of 7 February 2002, Kauer, C‑28/00, EU:C:2002:82, paragraph 26 and the case-law cited).
63


In that regard, it is true that the Court has held that, in order to give effect to the transitional rules in Article 94(1) to (3) of Regulation No 1408/71, it was necessary to take account of periods of insurance completed before that regulation came into effect (see, to that effect, judgments of 7 February 2002, Kauer, C‑28/00, EU:C:2002:82, paragraph 52, and of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraph 23). In the cases giving rise to those two judgments, the parties concerned who had requested that they be granted an Austrian pension had been insured under the relevant national legislation. The Court therefore found it appropriate to assess the legality of the national measures in question in light of the EU law which applied following the accession of the Republic of Austria to the European Union (judgment of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraph 28) and that, consequently, the competent institution had to apply the principles relating to the freedom of movement for workers and the transitional rules in Article 94(1) to (3) of that regulation (see, to that effect, judgments of 7 February 2002, Kauer, C‑28/00, EU:C:2002:82, paragraphs 45 and 50, and of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraph 32).
68


It must be observed, in that regard, that, according to the Court’s settled case-law, the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions (judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 56 and the case-law cited).
71


However, nothing in the Act of Accession requires the existing Member States to treat Austrian nationals in the same way as they treated nationals of the other Member States prior to accession of Austria to the European Union (see, by analogy, judgment of 26 May 1993, Tsiotras, C‑171/91, EU:C:1993:215, paragraph 12, and of 15 June 1999, Andersson and Wåkerås-Andersson, C‑321/97, EU:C:1999:307, paragraph 46).