Edgard Mulders v Rijksdienst voor Pensioenen.
Date: 2013-04-18
27. It is settled case-law that questions on the interpretation of European Union law referred by a national court in the factual and legal context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance.  The Court may refuse to rule on a request made by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C-188/10 and C‑189/10 Melki and Abdeli  [2010] I-5667, paragraph 27 and the case‑law cited).
28. It is also settled case-law that the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of European Union law and considers it necessary to refer a question to the Court for a preliminary ruling (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 40).
33. It is true that, at the time when Mr Mulders definitively ceased working, that is, on 10 February 1982, Article 13(2)(f) of Regulation No 1408/71, which determines inter alia the legislation applicable to persons who have definitively ceased all activity (Case C‑345/09 van Delft and Others  [2010] ECR I‑9879, paragraph 46 and the case‑law cited), was not yet in force, as that provision was inserted in that regulation with effect from 29 July 1991, as a result of the adoption of Regulation No 2195/91.
34. However, before that date, the Court had already held, as is apparent from the third recital in the preamble to Regulation No 2195/91, that even though Article 13(2)(a) of Regulation No 1408/71 did not expressly refer to the case of a worker who was  not employed when he applied for sickness insurance benefit, that provision referred, where necessary, to the legislation of the State in whose territory the worker was last employed, so that a worker who ceased to be employed in the territory of one Member State and did not go to work in the territory of another Member State continued to be subject to the legislation of the Member State in which he was last employed (see, to that effect, Case 150/82 Coppola  [1983] ECR 43, paragraph 11, and Ten Holder , paragraphs 13 to 15).
37. It should be recalled that Article 1(r) of Regulation No 1408/71 provides that the conditions governing the constitution of periods of insurance are defined exclusively by the legislation of the Member State under which the periods in question were completed (see, inter alia, Case C‑322/95 Iurlaro  [1997] ECR I‑4881, paragraph 28, and Case C‑440/09 Tomaszewska  [2011] ECR I‑1033, paragraph 26).
38. However, it is established case-law that, in establishing those conditions, Member States are required to comply with European Union law, in particular the objective pursued by Regulation No 1408/71 and the principles on which that regulation is based ( Tomaszewska , paragraph 27), as well as Articles 45 TFEU and 48 TFEU enshrining the principle of freedom of movement for workers (see, to that effect, Iurlaro , paragraph 28, and Case C‑347/00 Barreira Pérez  [2002] ECR I‑8191, paragraph 23).
39. It should be recalled in that connection that it is settled case‑law that the purpose of the provisions of Regulation No 1408/71 determining the legislation applicable, which include Article 13 thereof, is not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them (Case C‑275/ 96 Kuusijärvi  [1998] ECR I‑3419, paragraph 28; Case C‑227/03 van Pommeren‑Bourgondiën  [2005] ECR I‑6101, paragraph 34; and Case C‑619/11 Dumont de Chassart  [2013] ECR I‑0000, paragraph 38).
40. Those provisions of Regulation No 1408/71 thus 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 the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned ( van Delft and Others , paragraph 51).
41. It follows that the conditions to which Member States subject the constitution of periods of insurance may not in any case have the effect of excluding from the scope of national legislation persons to whom that legislation applies under Regulation No 1408/71 (see, to that effect, Case C‑347/10 Salemink  [2012] ECR I‑0000, paragraph 40 and the case‑law cited).
44. That provision would not be complied with if the residence condition laid down by the legislation of the Member State on whose territory the person concerned ceased all employment for affiliation to the retirement pension insurance scheme provided for by that legislation could be relied on against the persons referred to in Article 13(2)(a) of Regulation No 1408/71. With regard to those persons, the effect of that provision is to replace the residence condition with a condition based on employment in the territory of the Member State concerned ( Salemink , paragraph 41).
45. Moreover, it should be noted that, while European Union primary law can offer no guarantee to an insured person that moving to another Member State will be neutral in terms of social security, in particular where sickness and old-age pension insurance are concerned, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be to the advantage of the person concerned in terms of social security, or not, depending on the circumstances, it is settled case‑law that, where its application is less favourable, national legislation is consistent with European Union law only to the extent that, in particular, such legislation does not place the worker at a disadvantage compared to those who pursue all their activities in the Member State where it applies and does not purely and simply result in the payment of social security contributions on which there is no return (see, to that effect, Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829, paragraph 51; Case C‑493/04 Piatkowski [2006] ECR I‑2369, paragraph 34; van Delft and Others , paragraphs 100 and 101; and Case C‑388/09 da Silva Martins  [2011] ECR I‑0000, paragraphs 72 and 73).
46. As the Court has repeatedly held, the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the social security advantages afforded them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid (see, inter alia, case 24/75 Petroni [1975] ECR 1149, paragraph 13, and da Silva Martins , paragraph 74 and the case‑law cited).