Opinion of Advocate General Tanchev delivered on 15 April 2021.

JurisdictionEuropean Union
ECLIECLI:EU:C:2021:301
Date15 April 2021
Celex Number62019CC0866
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 15 April 2021(1)

Case C866/19

SC

v

Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))

(Reference for a preliminary ruling – Social security – Insured person having completed contribution periods in a Member State other than the competent Member State – Right to a retirement pension – Regulation (EC) No 883/2004 – Calculation of pension benefits)






1. This reference for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland) (‘the referring court’) seeks clarification of the Court’s ruling in Tomaszewska (2). The referring court asks essentially whether, in the circumstances of the main proceedings, pension contribution periods completed by an insured person (3) in a Member State other than the competent Member State (4) (‘host state contribution periods’) must be taken into account, as a matter of EU law, in the calculation of the amount of pension benefits to be paid by the competent Member State, in this instance, Poland, to that insured person. The judgment in Tomaszewska answered such a question only with respect to the acquisition of pension benefits. To what extent do the principles elaborated in that case apply to the calculation of benefits payable?

2. The circumstances of the main proceedings are as follows. Under Polish law, the length of Polish non-contribution periods that can be taken into account in the calculation of pension benefits is capped at one third of Polish contribution periods. (5) The question that arises for consideration is whether host state contribution periods undertaken in the Netherlands by an insured person, must be added, as a matter of EU law, to Polish contribution periods, thereby lengthening the duration of Polish non-contribution periods to be taken into account in the calculation of a Polish pension.

3. I have reached the conclusion that, under EU law, host state contribution periods must be taken into account in the calculation of the theoretical amount of the pension benefit payable under Article 52(1)(b)(i) of Regulation No 883/2004. (6) More particularly, the rule of Polish law which provides that non-contribution periods undertaken in Poland can only be relevant to the calculation of the amount of a pension to a cap of one-third of contribution periods completed in Poland, (‘the one-third cap for non-contribution periods’), must be read as including host state contribution periods completed by the insured person concerned in the Netherlands. Any other outcome would be inconsistent with the objectives of Regulation No 883/2004 and the principles on which it is based, (7) and contradict the principle of aggregation, of which Article 52(1)(b)(i) of Regulation No 883/2004 is a specific expression. The outcome prescribed here is also consistent with the purpose of Article 52(1)(b)(i) of Regulation No 883/2004, which is to ameliorate any harm done to insured persons who have exercised their right to work in Member States other than the competent Member State (8) through the method of calculation of the theoretical amount of the pension payable.

4. However, host Member State contribution periods are irrelevant to the calculation of the one-third cap for non-contribution periods with respect to the actual, pro rata pension benefit payable under Article 52(1)(b)(ii) of Regulation No 883/2004. This purpose of Article 52(1)(b)(ii) is different from the purpose of Article 52(1)(b)(i) of Regulation No 883/2004. Article 52(1)(b)(ii) calculates the pro rata benefit payable in an exercise known as apportionment. (9) The provision reflects the status of Regulation No 883/2004 as a measure of coordination of Member State social security systems, rather than one of harmonisation, and which seeks to secure a fair apportionment among the Member States of the amount of pension payable, by calculating it on the basis of the ratio of the length of service completed in each Member State before the materialisation of the insurance risk, (10) in this instance the attainment of retirement age.

I. Legal framework

A. EU law

5. Article 48(a) TFEU states:

‘The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement of workers; to this end, they shall make arrangements to secure for employed and self-employed migrant workers and their dependants: (a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries.’

6. Recital 14 of Regulation No 883/2004 states:

‘These objectives must be attained in particular by aggregating all the periods taken into account under the various national legislation for the purpose of acquiring and retaining the right to benefits and of calculating the amount of benefits, and by providing benefits for the various categories of persons covered by this Regulation.’

7. Article 1(t) of Regulation No 883/2004 states:

‘“ period of insurance” means periods of contribution, 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.’

8. Article 6 of Regulation No 883/2004 entitled ‘Aggregation of periods’ states:

Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes:

– the acquisition, retention, duration or recovery of the right to benefits,

– the coverage by legislation, or

– the access to or the exemption from compulsory, optional continued or voluntary insurance,

conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies.’ (11)

9. Article 52 (1) of Regulation No 883/2004 (12) states:

‘1. The competent institution shall calculate the amount of the benefit that would be due:

(a) under the legislation it applies, only where the conditions for entitlement to benefits have been satisfied exclusively under national law (independent benefit);

b) by calculating a theoretical amount and subsequently an actual amount (pro-rata benefit), as follows:

(i) the theoretical amount of the benefit is equal to the benefit which the person concerned could claim if all the periods of insurance and/or of residence which have been completed under the legislations of the other Member States had been completed under the legislation it applies on the date of the award of the benefit. If, under this legislation, the amount does not depend on the duration of the periods completed, that amount shall be regarded as being the theoretical amount;

(ii) the competent institution shall then establish the actual amount of the pro rata benefit by applying to the theoretical amount the ratio between the duration of the periods completed before materialisation of the risk under the legislation it applies and the total duration of the periods completed before materialisation of the risk under the legislations of all the Member States concerned.’

10. Recital 2 of Decision No H6 of 16 December 2010 concerning the application of certain principles regarding the aggregation of periods under Article 6 of Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2011 C 45, p. 5) ‘Decision No H6’ states:

‘(2) Article 6 of Regulation [No 883/2004] provides for the principle of aggregation of periods. This principle should be applied in a uniform way which includes the aggregation of periods which, under national legislation, count only in terms of qualifying for or in terms of increasing the benefit.’

11. Paragraphs 1 and 2 of Decision No H6 state:

‘1. All periods of insurance – be they contributory periods or periods treated as equivalent to insurance periods under national legislation – fulfil the notion of “periods of insurance” for the purposes of applying Regulations [No 883/2004] and [No 987/2009].

2. All periods for the relevant contingency completed under the legislation of another Member State shall be taken into account solely by applying the principle of aggregation of periods as laid down in [Article 6 of Regulation No 883/2004] and [Article 12 of Regulation No 987/2009]. The principle of aggregation requires that periods communicated by other Member State shall be aggregated without questioning their quality.’

B. Member State law

12. The order for reference mentions Ustawa z dnia 17 grudnia 1998 r. o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Law of 17 December 1998 on retirement and other pensions provided by the Social Insurance Fund (Dz. U. of 2018, item 1270, as amended) (‘the Law on Pensions’). The order for reference indicates that, under Polish law, the maximum amount of non-contribution periods that can be taken into account in calculating the amount of a benefit is one third of Polish contribution periods. (13)

II. The facts and the question referred for preliminary ruling

13. The question referred concerns only the calculation of the pension benefit for an insured person who completed the majority of his or her insurance periods in a Member State (the Netherlands) other than the competent Member State (Poland). No issue arises with respect to the acquisition of such benefits.

14. By a decision dated 24 February 2014, the Zakład Ubezpieczeń Społecznych, I Oddział w Warszawie (Social Insurance Institution, Branch No 1, Warsaw...

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