Maija T. I. Nikula.
Date: 2006-07-18
20. The objective of Regulation No 1408/71, as stated in the second and fourth recitals in the preamble, is to ensure free movement of employed and self-employed persons within the European Community, while respecting the special characteristics of national social security legislation.  To that end, as is clear from the 5th, 6th and 10th recitals, that regulation upholds the principle of equality of treatment of workers under the various national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right to free movement.  The system put in place by Regulation No 1408/71 is merely a system of coordination, concerning inter alia the determination of the legislation applicable to employed and self-employed workers who make use, under various circumstances, of their right to freedom of movement (Case C‑493/04 Piatkowski  [2006] ECR I‑0000, paragraphs 19 and 20).
22. Pursuant to Article 27 of Regulation No 1408/71, a pensioner who is entitled to draw pensions or annuities under the legislation of two or more Member States, including that of the Member State in whose territory he resides, is entitled to benefits in kind under the legislation of the Member State in whose territory he resides, as though he were a pensioner whose pension or annuity was payable solely under the legislation of the latter State.
23. Accordingly, it is for the Republic of Finland, as the Member State of residence of Ms Nikula, to ensure payment of the benefits in kind.  That State is authorised, by virtue of Article 33(1) of the regulation, to make deductions of contributions in accordance with the rules laid down in its legislation.
24. In the absence of harmonisation at Community level it is for the legislation of the Member State concerned to determine the income to be taken into account when calculating social security contributions (Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 51).  This is a fortiori the case where Community legislation specifically refers to the law of the Member State which it designates as the State competent to deduct sickness insurance contributions.  It is necessary, when the Member State concerned exercises that power, that it comply with Community law (see, in particular, Terhoeve , paragraph 34, and Case C‑227/03 Van Pommeren-Bourgondiën   [2005] ECR I‑6101, paragraph 39).
29. Secondly, by application of the principle that 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 (Case C‑140/88 Noij  [1991] ECR I‑387, paragraph 14), the Republic of Finland could not claim payment from Mr Rundgren of contributions such as those prescribed by Finnish legislation, since he was entitled to benefits having a similar purpose, for which the Kingdom of Sweden assumed responsibility as the Member State competent in his regard in respect of pensions ( Rundgren , paragraph 56).
30. Although it is true that it would be contrary to the principle of free movement of persons for the legislation of a Member State to require pensioners to contribute to an additional social security scheme without offering corresponding social protection (Case C‑53/95 Kemmler  [1996] ECR I‑703 and Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829), that is, however, not the case in the main proceedings, since Finnish legislation must apply as the legislation of the State of residence, to the exclusion of any other legislation, to all pensioners resident in Finnish territory.
31. Thus, in a case such as that of the main proceedings, in which an institution of the Member State of residence pays a pension and an institution of the same Member State is responsible for payment of sickness insurance expenses, there is no provision of Regulation No 1408/71 which prohibits that State from calculating the amount of the social contributions of a resident on the basis of his total income, whether it comes from pensions paid by the Member State of residence or from pensions paid by another Member State.
32. However, whatever the calculation method adopted, the amount of the contributions may not exceed that of the pensions paid by the institutions of the Member State of residence since, as stated in paragraph 28 of this judgment, by application of Article 33(1) of Regulation No 1408/71, the sickness insurance contributions may be deducted only from the pensions or annuities paid by the Member State of residence (see, to that effect, Rundgren , paragraph 49).
34. The Court has held that Article 39 EC precludes a Member State from calculating the sickness insurance contributions of a retired worker subject to its legislation on the basis of the gross amount of the supplementary retirement pension payable under an agreement which that worker draws in another Member State, without taking account of the fact that a part of the gross amount of that pension has already been deducted by way of sickness insurance contributions in the latter State (Case C‑302/98 Sehrer  [2000] ECR I‑4585, paragraph 36).