Vasiliki Balazs v Casa Judeţeană de Pensii Cluj (C-401/13) and Casa Judeţeană de Pensii Cluj v Attila Balazs (C-432/13).

• Jurisdiction: European Union
• Celex Number: 62013CC0401
• ECLI: ECLI:EU:C:2014:2161
• Date: 04 September 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-432/13,C-401/13

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 4 September 2014 ( 1 )

Joined Cases C‑401/13 and C‑432/13

Vasiliki Balazs

v

Casa Judeţeană de Pensii Cluj (C‑401/13)

and

Casa Judeţeană de Pensii Cluj

v

Attila Balazs (C‑432/13)

(Requests for a preliminary ruling from the Curtea de Apel Cluj (Romania))

‛Social security for migrant workers — Old-age benefits — Applicability of social security conventions between Member States — Refusal by the authorities of a Member State to grant, on the basis of EU legislation, an old-age benefit for periods of employment completed in its territory to a repatriated person whose country of origin is another Member State’

1. These requests for a preliminary ruling from the Curtea de Apel Cluj (Court of Appeal, Cluj (Romania)) concern the interpretation of Article 7(2)(c) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 ( 2 ) (‘Regulation No 1408/71’).

2. The requests have been made in proceedings between Vasiliki Balazs and the Casa Judeţeană de Pensii Cluj (Area Pensions Office, Cluj; ‘the Casa Judeţeană de Pensii’) and between the latter and Attila Balazs, concerning the grant of old-age pensions to Mr and Mrs Balazs.

I – Legal framework

A – EU law

3. According to the sixth recital in the preamble to Regulation No 1408/71: ‘… the provisions for coordination must guarantee that workers moving within the Community and their dependants and their survivors retain the rights and the advantages acquired and in the course of being acquired’.

4. Article 6 of that regulation provides: ‘Subject to the provisions of Articles 7, 8 and 46(4), this Regulation shall, as regards persons and matters which it covers, replace the provisions of any social security convention binding …: (a) two or more Member States exclusively, … …’

5. In derogation from Article 6, Article 7(2)(c) of Regulation No 1408/71 provides: ‘The provisions of Article 6 notwithstanding, the following shall continue to apply: … (c) certain provisions of social security conventions entered into by the Member States before the date of application of this Regulation provided that they are more favourable to the beneficiaries or if they arise from specific historical circumstances and their effect is limited in time if these provisions are listed in Annex III.’

6. Article 45 of Regulation No 1408/71 governs the consideration of periods of insurance or of residence in relation to pensions (old age and death). In accordance with Article 45(1), ‘[w]here the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraph 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or a self-employed person. For that purpose, it shall take account of these periods as if they had completed under its own legislation’.

7. Article 46 of Regulation No 1408/71 sets out how benefits must be awarded: ‘1. Where the conditions required by the legislation of a Member State for entitlement to benefits have been satisfied without having to apply Article 45 or Article 40(3), the following rules shall apply: (a) the competent institution shall calculate the amount of the benefit that would be due: (i) on the one hand, only under the provisions of the legislation which it administers; (ii) on the other hand, pursuant to paragraph 2; (b) the competent institution may, however, waive the calculation to be carried out in accordance with (a)(ii) if the result of this calculation, apart from differences arising from the use of round figures, is equal to or lower than the result of the calculation carried out in accordance with (a)(i), in so far as that institution does not apply any legislation containing rules against overlapping as referred to in Articles 46b and 46c or if the aforementioned institution applies a legislation containing rules against overlapping in the case referred to in Article 46c, provided that the said legislation lays down that benefits of a different kind shall be taken into consideration only on the basis of the relation of the periods of insurance or of residence completed under that legislation alone to the periods of insurance or of residence required by that legislation in order to qualify for full benefit entitlement. Annex IV, part C, lists for each Member State concerned the cases where the two calculations would lead to a result of this kind. 2. Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 45 and or Article 40(3), the following rules shall apply: (a) the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim provided all periods of insurance and/or of residence, which have been completed under the legislation of the Member States to which the employed person or self-employed person was subject, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph; (b) the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding paragraph in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislations of all the Member States concerned. 3. The person concerned shall be entitled to the highest amount calculated in accordance with paragraphs 1 and 2 from the competent institution of each Member State without prejudice to any application of the provisions concerning reduction, suspension or withdrawal provided for by the legislation under which this benefit is due. Where that is the case, the comparison to be carried out shall relate to the amounts determined after the application of the said provisions. …’

8. Finally, Article 94(1) and (2) of Regulation No 1408/71 provides: ‘1. No right shall be acquired under this Regulation in respect of a period prior to 1 October 1972 or to the date of its application in the territory of the Member State concerned or in a part of the territory of that State. 2. 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 its application in the territory of that Member State or in a part of the territory of that State shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation.’

9. Regulation (EEC) No 574/72 of the Council of 21 March 1972, ( 3 ) as amended, in particular, by Council Regulation (EC) No 1791/2006 of 20 November 2006 ( 4 ) (‘Regulation No 574/72’), lays down the procedure for implementing Regulation No 1408/71.

B – The bilateral agreement

10. The bilateral agreement between the Greek and Romanian Governments concerning final settlement of the compensation in respect of the social security contributions made by Greek political refugees repatriated from Romania, concluded on 23 February 1996 (‘the bilateral agreement’), is not included in Annex III to Regulation No 1408/71.

11. The terms ‘repatriated person’ and ‘period of insurance’ are defined, for the purpose of the bilateral agreement, in Article 1(a) and (e): ‘(a) “repatriated person” shall mean a person of Greek origin, established in Romania after 1 January 1945, having the status of political refugee, and also the members of his family, who have returned or, within six years of the date of entry into force of the present agreement, will return to Greece in order to reside there permanently; … (e) “period of insurance” shall mean the period for which social security contributions were paid in Romania, in accordance with Romanian law.’

12. Article 2 of the bilateral agreement states: ‘1. The contracting parties shall arrange for the compensation in respect of social security contributions made by repatriated persons in accordance with the provisions of paragraphs 2 and 3 of this article and Article 3 of this agreement. 2. The Romanian party undertakes to pay to the Greek party a lump sum by way of compensation for the payment of pensions by the Greek party and the covering by it of the period of insurance completed by repatriated persons. 3. The Greek party...