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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Janina Wencel v Zaklad Ubezpieczen Spolecznych w Bialymstoku [2013] EUECJ C-589/10 (16 May 2013) URL: https://www.bailii.org/eu/cases/EUECJ/2013/C58910.html Cite as: EU:C:2013:303, ECLI:EU:C:2013:303, [2013] EUECJ C-589/10 |
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JUDGMENT OF THE COURT
(
First
Chamber)
16 May 2013 (*)
(Article 45 TFEU – Regulation (EEC) No 1408/71 – Article 10 – Old-age benefits – Habitual residence in two different
Member States – A survivor’s pension received in one of those States and a retirement pension in the other –
Withdrawal
of one of those benefits – Recovery of benefits to
which
it is alleged the recipient
was
not entitled)
REQUEST for
a preliminary ruling under Article 267 TFEU
from
the Są
d
Apelacyjny – Są
d
Pracy i Ubezpieczeń Społecznych
w
Białymstoku
(Poland), made by
decision
of 2
December
2010, received at the
Court
on 14
December
2010, in the proceedings
Janina
Wencel
v
Zakład Ubezpieczeń Społecznych
w
Białymstoku,
composed of A. Tizzano, President of the
Chamber,
M. Ilešič, J.-J. Kasel (Rapporteur), M. Safjan and M. Berger, Judges,
Advocate General: P.
Cruz
Villalón,
Registrar: K. Malacek, Administrator,
having regard to the
written
procedure and
further
to the hearing on 1 March 2012,
after
considering
the observations submitted on behalf of:
– the Zakład Ubezpieczeń Społecznych
w
Białymstoku, by K.M. Kalinowska, U. Kulisiewicz and A. Szybkie, acting as Agents,
– the Polish Government, by M. Szpunar, J.
Faldyga
and A. Siwek, acting as Agents,
– the German Government, by T. Henze and J. Möller, acting as Agents,
– the European
Commission,
by V. Kreuschitz and M. Owsiany-Hornung, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 24 May 2012,
gives the
following
Judgment
1 This request for
a preliminary ruling
concerns
the interpretation of Articles 20(2) TFEU and 21 TFEU and
certain
provisions
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 most recently by Regulation (EC)
No 592/2008 of the European Parliament and of the
Council
of 17 June 2008 (OJ 2008 L 177, p. 1) (‘Regulation No 1408/71’).
2 The request has been made in proceedings between Mrs Wencel
and the Zakład Ubezpieczeń Społecznych
w
Białymstoku (the Białystok
section of the national social security institution) (‘the ZUS’)
concerning
her entitlement to a retirement pension.
Legal context
European Union legislation
3 Article 1(h) of Regulation No 1408/71 defines
‘residence’ as the place of habitual residence.
4 Under Article 6(b) of Regulation No 1408/71, the regulation is to replace, as regards persons and matters which
it
covers,
the provisions of any social security
convention
binding at least two Member States.
5 Article 7 of Regulation No 1408/71, entitled ‘International provisions not affected by this Regulation’, includes, in paragraph
2(c)
thereof, among the provisions
which
it states
will
continue
to apply, ‘
certain
provisions of social security
conventions
entered into by the Member States before the
date
of application of [that] 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 The social security conventions
which
remain applicable under Annex III to Regulation No 1408/71 include, inter alia, the
convention
concluded
by the People’s Republic of Poland and the
Federal
Republic of Germany on pension and accident insurance
(umowa r. mię
dzy
Polską Rzeczpospolitą Ludową a Republiką
Federalną
Niemiec o zaopatrzeniu emerytalnym i
wypadkowym)
on 9
October 1975 (
Dz.
U. of 1976, No 16, item 101), as amended (‘the
Convention
of 9 October 1975’), under the
conditions
and
in accordance
with
the rules laid
down
by Article 27(2) to (4) of the umowa polsko-niemiecka o zabezpieczeniu społecznym (German-Polish
Convention
on social security) of 8
December
1980 (
Dz.
U. of 1991, No 108, item 468).
7 Article 10 of Regulation No 1408/71, headed ‘Waiving
of residence
clauses
– Effect of
compulsory
insurance on reimbursement
of
contributions’,
provides in paragraph 1 thereof as
follows:
‘Save as otherwise provided in this Regulation, invalidity, old-age or survivors’ cash
benefits, pension[s]
for
accidents
at
work
or occupational
diseases
and
death
grants acquired under the legislation of one or more Member States shall not be
subject to any reduction, modification, suspension,
withdrawal
or
confiscation
by reason of the
fact
that the recipient resides
in the territory of a Member State other than that in
which
the institution responsible
for
payment is situated.
…’
8 Article 12 of Regulation No 1408/71 provides as follows:
‘1. This Regulation can
neither
confer
nor maintain the right to several benefits of the same kind
for
one and the same period
of
compulsory
insurance …
2. Save as otherwise provided in this Regulation, the provisions of the legislations of a Member State governing the reduction,
suspension or withdrawal
of benefits in
cases
of overlapping
with
other social security benefits or any other
form
of income
may be invoked even
where
such benefits
were
acquired under the legislation of another Member State or
where
such income
was
acquired in the territory of another Member State.’
9 Article 13(1) of Regulation No 1408/71 provides that ‘persons to whom
this Regulation applies shall be subject to the legislation
of a single Member State only. That legislation shall be
determined
in accordance
with
the provisions of … Title [II]’.
10 Article 13(2)(f)
of Regulation No 1408/71 provides as
follows:
‘Subject to Articles 14 to 17:
…
(f) a person to whom
the legislation of a Member State
ceases
to be applicable,
without
the legislation of another Member State
becoming applicable to him … shall be subject to the legislation of the Member State in
whose
territory he resides in accordance
with
the provisions of that legislation alone.’
11 Article 46a of Regulation No 1408/71 is worded
as
follows:
‘1. For the purposes of this Chapter,
overlapping of benefits of the same kind shall have the
following
meaning: all overlapping
of benefits in respect of invalidity, old age and survivors
calculated
or provided on the basis of periods of insurance and/or
residence
completed
by one and the same person.
2. For the purposes of this Chapter,
overlapping of benefits of
different
kinds means all overlapping of benefits that
cannot
be regarded as being of the same kind
within
the meaning of paragraph 1.
3. The following
rules shall be applicable
for
the application of provisions on reduction, suspension or
withdrawal
laid
down
by the legislation of a Member State in the
case
of overlapping of a benefit in respect of invalidity, old age or survivors
with
a benefit of the same kind or a benefit of a
different
kind or
with
other income:
…
(d) where provisions on reduction, suspension or withdrawal
are applicable under the legislation of only one Member State on account
of the
fact
that the person
concerned
receives benefits of a similar or
different
kind payable under the legislation of other
Member States or other income acquired
within
the territory of other Member States, the benefit payable under the legislation
of the
first
Member State may be reduced only
within
the limit of the amount of the benefits payable under the legislation
or the income acquired
within
the territory of other Member States.’
The German-Polish Conventions
12 Article 4 of the Convention
of 9 October 1975 provides as
follows:
‘1. Retirement pensions are to be granted by the insurance institution of the State in whose
territory the recipient resides,
in accordance
with
the provisions applicable to such institution.
2. For
the purpose of
calculating
pension entitlements under the rules applicable to the institution referred to in paragraph
1, periods of insurance, periods of employment and other similar periods
completed
in the other State shall be taken into
account by that institution as if they had been
completed
in the territory of the
first
State.
3. The right to a pension as referred to in paragraph 2 exists only during
the period of residence in the territory of the
State
whose
insurance institution established the pension.
During
that period, a person in receipt of a pension shall not
enjoy any rights, vis-à-vis the insurance institutions of the other State, in respect of period of insurance, periods of employment
or other similar periods
completed
in that other State …’
13 Article 27(2) of the German-Polish Social Security Convention
of 8
December
1990 provides that rights acquired up to 1 January
1991 in one of the States party to the
Convention
of 9 October 1975
will
not be
disputed,
provided the recipient resides in
the territory of that State.
Polish legislation
14 In Poland, retirement and other pensions are governed by the ustawa o emeryturach i rentach z Funduszu
Ubezpieczeń Społecznych
(Law on retirement and other pensions provided by the Social Security
Fund)
of 17
December
1998, in its
consolidated
version
(
Dz.
U. of 2009, No 153, item 1227) (‘the Law on retirement pensions’).
15 Article 114(1) of that law provides that the right to benefits and the amount thereof is to be reassessed at the request of
the person concerned
or on the institution’s own initiative
where,
after the
decision
on benefits has become
final,
new evidence
is presented or
circumstances
existing before the
decision
was
issued are
disclosed
which
may affect the right to benefits
or the amount thereof.
16 Under Article 138(1) and (2) of the Law on retirement pensions, any person who
has received benefits to
which
they
were
not
entitled is required to repay them. Benefits paid out in spite of
circumstances
justifying the
cessation
or suspension of
the right to benefits or termination of benefits payments in
full
or in part,
where
the person receiving the benefits has
been advised that they are not entitled to them, are to be regarded as benefits paid
without
entitlement.
The dispute
in the main proceedings and the questions referred
for
a preliminary ruling
17 Mrs Wencel,
a Polish national born on 25
February
1930, has been registered since 1954 as resident in the
city
of Białystok
(Poland). Her husband, also of Polish nationality, settled, after their marriage in 1975, in
Frankfurt-am-Main
(Germany),
where
he
was
registered as resident and had an established employment relationship entailing the payment of social security
contributions.
As
from
1984, he received an incapacity pension in Germany. Mrs
Wencel
frequently
went
to Germany to see her
husband,
who
spent all his holidays, including public holidays, in Poland.
18 According to a residence registration certificate
issued by the municipality of
Frankfurt-am-Main,
Mrs
Wencel
was
permanently
resident in Germany as
from
1984. She obtained a residence permit in Germany but never
worked
there. On the other hand,
from
1984 to 1990 she
was
employed as a
childminder
by her
daughter-in-law
in Poland. By
decision
of the ZUS of 24 October 1990,
she acquired the right to a Polish retirement pension, by virtue of the insurance periods
completed
in Poland.
Following
the
death
of her husband in 2008, the German insurance institution granted Mrs
Wencel
a survivor’s pension on the basis, inter
alia, of her residence in Germany. She is
currently
living in Poland
with
her son,
daughter-in-law
and grandchildren.
19 In 2009, the ZUS was
informed that Mrs
Wencel
was
registered as resident in both Poland and Germany. Relying on a
declaration
of 24 November 2009, in
which
Mrs
Wencel
stated that she
was
resident in Germany but had spent all holidays, including public
holidays, in Poland, the ZUS issued two
decisions
on the basis of Articles 114 and 138 of the Law on retirement pensions.
20 In its first
decision,
of 26 November 2009, the ZUS reversed the
decision
to grant a retirement pension of 24 October 1990
and suspended payment of that pension. According to the ZUS, under Article 4 of the
Convention
of 9 October 1975, an application
for
a retirement pension may be
considered
solely by the insurance institution of the State in
which
the applicant is resident.
As Mrs
Wencel
had been permanently resident in Germany since 1975, she
was
not entitled to a retirement pension
from
the Polish
insurance scheme. By its second
decision,
of 23
December
2009, the ZUS required Mrs
Wencel
to repay the sums received over
the previous three years, to
which
it
claimed
she
was
not entitled.
21 On 4 January 2010, Mrs Wencel
challenged
both those
decisions
before the Są
d
Okręgowy – Są
d
Pracy i Ubezpieczeń Społecznych
w
Białymstoku (Labour and Social Security
Chamber
of the Regional
Court,
Białystok), alleging breach of provisions of European
Union law on
freedom
of movement and residence. The
fact
that she had two places of habitual residence should not, in Mrs
Wencel’s
view,
deprive
her of the right to a retirement pension in Poland. She also
claimed
that the
declaration
of 24 November
2009 had been
written
in haste under pressure
from
ZUS staff and
does
not therefore reflect the true position.
22 By judgment of 15 September 2010, that court
dismissed
the actions brought by Mrs
Wencel
on the ground that, even though an
individual may be registered as resident in two
different
Member States, such a person is precluded, under Article 4 of the
Convention
of 9 October 1975,
from
having two separate
centres
of interests. The effect of the transfer of Mrs
Wencel’s
centre
of interests to Germany
was
to
confer
competence
on the German insurance institution
for
pension purposes. Moreover, in spite
of the advice
contained
in the
decision
granting her a retirement pension, Mrs
Wencel
omitted to inform the ZUS of her
decision
to leave Poland.
23 Mrs Wencel
appealed against that judgment before the Są
d
Apelacyjny – Są
d
Pracy i Ubezpieczeń Społecznych
w
Białymstoku.
24 According to that court,
it is apparent
from
Article 10 of Regulation No 1408/71 that a person resident in the territory of
one Member State
cannot
be
deprived
of his entitlement to benefits accrued under the legislation of another Member State.
Although that provision
does
not refer to the situation of a person
who
has two simultaneous habitual residences, it should
be acknowledged that such a person is also
covered
by Article 10. After setting out all the
factors
militating in
favour
of
a
finding
that Mrs
Wencel
did
in
fact
have two simultaneous habitual residences and that,
from
1975 to 2008, she spent half
her time in Poland and the other half in Germany, the referring
court
concluded
that Mrs
Wencel’s
situation is atypical and
that the
failure
on her part to submit a
declaration
concerning
the transfer of her
centre
of interests may be explained by
the
fact
that she genuinely
considered
that she had two places of residence of equal status
for
the purposes of Article 1(h)
of Regulation No 1408/71.
25 The appeal court
has
doubts
as to
whether
Mrs
Wencel
may be
deprived
of her entitlement to benefits on the sole ground that
she has two habitual residences. According to that
court,
the
decisions
of the ZUS appear to be at odds
with
the principle
of
freedom
of movement
within
the European Union.
26 Since, following
the accession of the Republic of Poland to the European Union in 2004, the provisions of the
Convention
of
9 October 1975 are applicable, in accordance
with
Article 7(2)(b) of Regulation No 1408/71, only if they are no less
favourable
than the provisions of that regulation, Mrs
Wencel’s
right to benefits should not, pursuant to Articles 20 TFEU and 21 TFEU
and Article 10 of the regulation, be subject to any reduction by reason of the
fact
that,
for
over 30 years, she had two places
of residence of equal status.
27 Moreover, the referring court
asks
whether
a retirement pension may be
withdrawn
retroactively, even though the person
concerned
has not been informed of the requirement to notify the
competent
insurance institution of any
factors
which
might affect that
institution’s
decision
when
considering
retirement pension applications.
28 In those circumstances
the Są
d
Apelacyjny – Są
d
Pracy i Ubezpieczeń Społecznych
w
Białymstoku
decided
to stay the proceedings
and to refer the
following
questions to the
Court
of Justice
for
a preliminary ruling:
‘(1) Does the principle of freedom
of movement and residence in the Member States of the European Union, as expressed in Articles
21 TFEU and 20(2) TFEU, mean that Article 10 of … Regulation … No 1408/71 … must be interpreted as meaning that old-age
cash
benefits acquired under the legislation of one Member State are not to be subject to any reduction, modification, suspension,
withdrawal
or
confiscation
by reason of the
fact
that the recipient lived simultaneously (had two habitual residences of equal
status) in the territory of two Member States, including one other than that in
which
the institution responsible
for
payment
of the retirement pension is situated?
(2) Must Articles 21 TFEU and 20(2) TFEU and Article 10 of … Regulation … No 1408/71 … be interpreted as precluding the application
of national provision Article 114(1) of the [Law on retirement pensions], in conjunction
with
Article 4 of the
Convention
of 9 October 1975 …,
which
entails re-examination of the
case
by the Polish pension institution and removal of the pension
right of a person
who,
for
many years, has had simultaneously two habitual residences (two
centres
of interests) in two
countries
now belonging to the European Union and
who
did
not, prior to 2009, submit an application or
declaration
concerning
the transfer
of residence to one of those
countries?
In the event that the answer is in the negative:
(3) Must Articles 20(2) TFEU and 21 TFEU and Article 10 of … Regulation No 1408/71 … be interpreted as precluding the application
of national provision Article 138(1) and (2) of [the Law on retirement pensions], which
entails the
demanding
by the Polish
pension institution of repayment of a retirement pension in respect of the period of the last three years
from
a person
who,
from
1975 to 2009, had simultaneously two habitual residences (two
centres
of interests) in two
countries
now belonging to
the European Union,
where
that person had not, at the time the application
for
the grant of a retirement pension
was
examined
and after the pension
was
received, been advised by the Polish insurance institution of the need to inform it that he has
two habitual residences in two
countries
and of the need to submit an application or
declaration
concerning
the
choice
of
an insurance institution in one of those
countries
as
competent
for
the purpose of
considering
applications
concerning
retirement
pensions?’
Consideration of the questions referred
Preliminary observations
29 In the light of the particular circumstances
of the present
case
and the need to provide the referring
court
with
a useful
answer, it is necessary, as a preliminary issue, to
determine
whether
and, if so, to
what
extent the provisions of Regulation
No 1408/71 are applicable in a situation such as that in the main proceedings.
30 As regards, first,
the applicability ratione temporis of Regulation No 1408/71, it should be noted that that regulation entered into
force
in Poland upon its accession to the
European Union, namely on 1 May 2004.
31 In the present case,
while
Mrs
Wencel
acquired the right to a retirement pension by virtue of a
decision
of the ZUS of 24
October 1990, the
fact
nevertheless remains that that right
was
removed and Mrs
Wencel
was
required to repay the sums received
during
the three previous years, to
which,
it
was
alleged, she
was
not entitled, as a result of the
decisions
of 26 November
and 23
December
2009.
32 Consequently,
it is the latter two
decisions,
issued after the accession of the Republic of Poland to the European Union,
which
are the subject of the
dispute
in the main proceedings.
33 Moreover, according to settled case-law,
although Regulation No 1408/71, as new legislation
concerning
social security
for
migrant
workers
applicable in Poland
with
effect
from
1 May 2004,
was,
in principle, valid at that point only
for
the
future,
it may nevertheless apply to the
future
effects of situations
which
came
about
during
the period of validity of the old legislation
(see, to that effect,
Case
C-290/00
Duchon
[2002] ECR I-3567, paragraph 21 and the
case-law
cited).
34 Accordingly, the legality of the decisions
of 26 November and 23
December
2009 must be assessed in the light of Regulation
No 1408/71, in so
far
as the provisions of the
conventions
on social security are not applicable.
35 With
regard, second, to the applicability ratione materiae of Regulation No 1408/71, it should be recalled that, under Article 7(2)(
c)
of that regulation, the provisions of social
security
conventions
set out in Annex III to the regulation
continue
to apply, notwithstanding the provisions of Article 6
of the regulation,
which
provides that the regulation is to replace the provisions of any social security
convention
binding
two or more Member States as regards persons and matters
which
it
covers
(Joined
Cases
C-396/05,
C-419/05
and
C-450/05
Habelt and Others [2007] ECR I-11895, paragraph 87).
36 As the Convention
of 9 October 1975 is listed in Annex III to Regulation No 1408/71, it remains applicable, in principle,
even after the entry into
force
in Poland of Regulation No 1408/71 if one of the two other
conditions
laid
down
in Article
7(2)(
c)
of the regulation is met, namely if the application of the provisions of the
Convention
of 9 October 1975 is more
favourable
to the beneficiaries or if the
convention
arises
from
specific historical
circumstances
and its effect is limited
in time.
37 Accordingly, Regulation No 1408/71 continues
to apply only to the extent that the bilateral
conventions
concluded
before its
entry into
force
do
not impede its application (see, to that effect,
Case
28/68 Torrekens [1969] ECR 125, paragraphs 19 to 21). However, an EU law provision
which,
like Article 7(2) of that regulation, gives precedence
to the application of a bilateral
convention,
cannot
have a purport that
conflicts
with
the principles underlying the legislation
of
which
it is part (see, by analogy,
Case
C-533/08
TNT Express Nederland [2010] ECR I-4107, paragraph 51).
38 It follows
that EU law may be applied not only to all situations
which,
in accordance
with
the requirements set out in Article
7(2) of Regulation No 1408/71,
do
not
fall
within
the scope of the
Convention
of 9 October 1975 but also
where
the provisions
of that
convention
are inconsistent
with
the principles on
which
the regulation is based.
39 Those principles, which
underlie the provisions
for
the
coordination
of national social security legislation, are
closely
connected
with
freedom
of movement
for
persons, the most important principle of
which
is that the activities of the European
Union are to include, in particular, the abolition, as between Member States, of obstacles to
freedom
of movement
for
persons
(see, to that effect,
Case
C-127/11
van
den
Booren [2013] ECR I-0000, paragraph 43 and the
case-law
cited).
40 Moreover, since Mrs Wencel
has exercised her
freedom
of movement, her situation is governed by the principles on
which
Regulation
No 1408/71 is based. Given that the international
convention
in question
was
not adopted
for
the purpose of putting those
principles into effect, it is possible that, in a situation such as that in the main proceedings, it might undermine those
principles.
41 It must therefore be concluded
that Mrs
Wencel’s
situation must be assessed on the basis of Regulation No 1408/71.
Consideration of the questions referred
42 By its questions, which
it is appropriate to
consider
together, the referring
court
asks, in essence,
whether
EU law must
be interpreted as meaning that a social security institution is entitled to
withdraw,
retroactively, the pension right of
an insured person
who,
for
many years, has had two habitual residences simultaneously in two
different
Member States, and
to
demand
repayment of any pension to
which,
it is alleged, the person
concerned
is not entitled, on the ground that the insured
person receives a survivor’s pension in another Member State in the territory of
which
he has also been resident.
43 First,
it is necessary to
determine
whether
a person may legitimately,
for
the purposes of the application of Regulation No 1408/71,
in particular Article 10 thereof,
claim
to have simultaneously two habitual residences in two
different
Member States.
44 Article 10 of Regulation No 1408/71 sets out the provisions concerning
the
waiver
of residence
clauses,
in so
far
as it ensures
that the
competent
State
will
be responsible
for
payment of social security benefits
where
the insured person resides or transfers
his residence to a Member State other than that in
which
the institution responsible
for
payment is situated.
45 Since it is not possible, however, to ascertain on the basis of the wording
of Article 10 of Regulation No 1408/71
whether
it is permissible under the regulation to have two habitual residences in two
different
Member States, it must be borne in
mind that the regulation establishes a system
for
the
coordination
of national social security schemes and lays
down,
in Title
II, rules governing the
determination
of the legislation to be applied.
46 The Court
has already held that those provisions are not only intended to ensure that the persons
concerned
are not left
without
social security
cover
because there is no legislation
which
is applicable to them (see, to that effect,
Case
92/63 Nonnenmacher [1964] ECR 281, pp. 281, 287 and 288), but also to ensure that the persons
concerned
are subject to the social security scheme
of only one Member State in order to prevent more than one system of national legislation
from
being applicable and to avoid
the
complications
which
may arise
from
that situation (see, to that effect,
Case
60/85 Luijten [1986] ECR 2365, paragraph 12).
47 The principle that the person concerned
is to be subject to the social security scheme of only one Member State
finds
expression
in particular in Article 13(1) (see, to that effect, inter alia, Luijten, paragraph 13) and Article 13(2)(
f)
of Regulation No 1408/71, as observed by the Advocate General at point 28 of his Opinion,
as
well
as Article 14a(2) of the regulation (
Case
C-493/04
Piatkowski [2006] ECR I-2369, paragraph 12).
48 Since the system introduced by Regulation No 1408/71 uses the residence of the person concerned
as the
connecting
factor
for
the
determination
of the legislation applicable, it
cannot
be accepted,
without
depriving
the provisions referred to in the
preceding paragraph of all practical effectiveness, that a person may have,
for
the purposes of Regulation No 1408/71, a number
of habitual residences in
different
Member States.
49 That finding
is supported by the
Court’s
case-law
on the
concept
of ‘residence’
for
the purposes of European Union legislation
applicable to social security schemes
for
migrant
workers.
Indeed,
where
a
connection
may be established between a person’s
legal position and the legislation of a number of Member States, the
Court
has held that the
concept
of the Member State in
which
a person resides refers to the State in
which
that person habitually resides and
where
the habitual
centre
of his interests
is to be
found
(see, to that effect,
Case
C-90/97
Swaddling [1999] ECR I-1075, paragraph 29 and the
case-law
cited).
50 The development
in the
case-law
of a list of
factors
to be taken into
consideration
for
the purpose of
determining
a person’s
habitual residence,
which
is now
codified
in Article 11(1) of Regulation (EC) No 987/2009 of the European Parliament and of
the
Council
of 16 September 2009 laying
down
the procedure
for
implementing Regulation (EC) No 883/2004 on the
coordination
of social security systems (OJ 2009 L 284, p. 1), reflects the importance of establishing a single place of residence.
51 Consequently,
it must be
concluded
that Article 10 of Regulation No 1408/71 must be interpreted as meaning that,
for
the purposes
of the application of that regulation, a person
cannot
have simultaneously two habitual residences in two
different
Member
States.
52 Second, in order to establish the competent
institution
for
the purpose of
calculating
the pension rights of a person in a
situation such as that of Mrs
Wencel,
it is
for
the national
court
to
determine,
in the light of all the relevant evidence
before it, the Member State in
which
the habitual residence of the person
concerned
is situated,
within
the meaning of the
case-law
cited
above.
53 It should be noted in that regard, first,
that the applicant
worked
in Poland and that her
work
was
connected
with
a
family
relationship she had there.
54 Next, the applicant was
granted,
with
effect
from
1990, a retirement pension on the basis of the
contributions
made by her
for
that purpose in Poland.
55 Lastly, it is for
the national
court
to
determine
whether
the
declaration
made by Mrs
Wencel
in 2009, at the request of the
ZUS, to the effect that she
was
resident in Germany, is at variance
with
the
facts,
in particular in the light of the
fact
that, at the very least since the
death
of her husband in 2008, her
centre
of interests appears to have shifted, now being
located solely in Poland.
56 On the assumption that the competent
institution is located in that Member State on account of the
fact
that the person
concerned
is resident there, it is necessary, thirdly, to ascertain
whether
that institution may legitimately
withdraw,
retroactively,
her pension entitlement and require her to repay any pension to
which
it is alleged she
was
not entitled, on the ground that
she receives a survivor’s pension in another Member State in
whose
territory she had also been resident.
57 As regards overlapping benefits, it should be noted, first,
that under Article 12(1) of Regulation No 1408/71, the regulation
can
neither
confer
nor maintain, in principle, the right to several benefits of the same kind
for
one and the same period
of insurance.
58 In so far
as it transpires, as is apparent
from
the
written
observations submitted to the
Court,
that the Polish retirement
pension received by Mrs
Wencel
in Poland
was
calculated
on the basis of her employment record in that Member State and that
the German survivor’s pension is paid to her on account of the employment record of her late husband in Germany, those two
benefits
cannot
be
considered
to be benefits of the same kind (see, to that effect,
Case
197/85 Stefanutti [1987] ECR 3855, paragraph 13;
Case
C-366/96
Cordelle
[1998] ECR I-583, paragraphs 20 and 21; and van
den
Booren, paragraphs 32 and 33).
59 Second, it is apparent from
Article 12(2) of Regulation No 1408/71 that provisions on reduction laid
down
in the legislation
of a Member State may, unless that regulation provides otherwise, be invoked against persons
who
receive a benefit
from
that
Member State if they
can
claim
other social security benefits, even
when
those benefits are acquired under the legislation
of another Member State (
Case
C-107/00
Insalaca [2002] ECR I-2403, paragraph 22).
60 Consequently,
Regulation No 1408/71
does
not preclude the application of national legislation
which
has the effect of reducing
the amount of the pension
which
the insured person may
claim
on the basis that that person is entitled to old-age benefits
in another Member State, provided the limits imposed by Regulation No 1408/71 are observed.
61 Those limits are imposed, inter alia, by Article 46a(3)(d)
of Regulation No 1408/71,
which
provides that the benefit payable
under the legislation of the
first
Member State may be reduced only
within
the limit of the amount of the benefits payable
under the legislation of the other Member State.
62 It follows
from
the
foregoing
that Mrs
Wencel’s
Polish old-age pension
cannot
be
withdrawn
retroactively on the ground that
she receives a German survivor’s benefit. However, that pension may be reduced, up to the limit of the amount of the German
benefits, on the basis of any Polish rule precluding the
cumulation
of benefits. It is
for
the referring
court
to ascertain
whether
such a rule exists in the present
case.
63 If such a rule exists in the Polish legal system, the application of which
is not precluded by Regulation No 1408/71, it
will
also be necessary to verify
whether
the provisions of the
FEU
Treaty preclude such application.
64 As already pointed out at paragraph 37 above, the interpretation of Regulation No 1408/71 thus arrived at is to be understood
without
prejudice to the outcome
which
might result
were
the provisions of primary law
found
to be applicable. The
finding
that a national measure may be
consistent
with
a provision of a secondary law measure, in this
case
Regulation No 1408/71,
does
not necessarily have the effect of removing that measure
from
the scope of the Treaty’s provisions (
Case
C-208/07
von
Chamier-Glisczinski
[2009] ECR I-6095, paragraph 66 and the
case-law
cited,
and van
den
Booren, paragraph 38).
65 It is in that context
that the national
court
has referred the questions
for
a preliminary ruling in the light of European
Union primary law, in particular Articles 20(2) TFEU and 21 TFEU.
66 It is clear
that Mrs
Wencel’s
situation
falls
within
the scope of Article 45 TFEU.
67 To the extent that the case
in the main proceedings
falls
within
the scope of that provision, it is not necessary to rule
on the interpretation of Articles 20(2) TFEU and 21 TFEU. Those provisions,
which
set out generally the right of every
citizen
of the European Union to move and reside
freely
within
the territory of the Member States,
find
specific expression in Article
45 TFEU in relation to
freedom
of movement
for
workers
(see, to that effect,
Case
C-379/11
Caves
Krier
Frères
[2012] ECR I-0000, paragraph 30 and the
case
law
cited).
68 In that regard, it is sufficient to note that Article 45 TFEU gives effect to a fundamental
principle under
which,
in particular,
the activities of the European Union are to include the abolition, as between Member States, of obstacles to
freedom
of movement
for
persons (van
den
Booren, paragraph 43 and the
case-law
cited).
69 As a result, European Union law militates against any national measure which,
even though applicable
without
discrimination
on grounds of nationality, is
capable
of hindering or rendering less attractive the exercise by Member State nationals of
the
fundamental
freedoms
guaranteed by the Treaty (van
den
Booren, paragraph 44 and the
case-law
cited).
70 National measures of that kind may be allowed only if they pursue a legitimate objective in the public interest, are appropriate
for
the purpose of ensuring the attainment of that objective, and
do
not go beyond
what
is necessary to attain the objective
pursued (van
den
Booren, paragraph 45 and the
case-law
cited).
71 Accordingly, it is for
the national
court
to assess the
compatibility
of the rules of national legislation at issue
with
the
requirements of European Union law by
determining
whether
the rule requiring the
withdrawal
of a pension entitlement and the
repayment of sums to
which,
it is
claimed,
the person
concerned
was
not entitled,
which
applies
without
distinction
to Polish
nationals and to nationals of other Member States,
does
not in
fact
lead, in respect of the person
concerned,
to an unfavourable
situation in
comparison
with
that of a person
whose
situation has no
cross-border
element, and, if such a
disadvantage
is
established in the present
case,
whether
the national rule at issue is justified by objective
considerations
and is proportionate
to the legitimate objective pursued by national law (van
den
Booren, paragraph 46).
72 In carrying
out that examination, the referring
court
should also bear in mind that the principle of
cooperation
in good
faith
laid
down
in Article 4 TFEU requires the
competent
authorities in the Member States to use all the means at their
disposal
to achieve the aim of Article 45 TFEU (see van Munster, paragraph 32, and Leyman, paragraph 49).
73 In the light of the foregoing
considerations,
the answer to the questions referred is as
follows:
– Article 10 of Regulation No 1408/71 must be interpreted as meaning that, for
the purposes of the application of the regulation,
a person
cannot
have simultaneously two habitual residences in two
different
Member States;
– under the provisions of Regulation No 1408/71, in particular Articles 12(2) and 46a, the competent
institution of a Member
State
cannot,
in
circumstances
such as those in the main proceedings, legitimately
withdraw,
retroactively, the entitlement
to a retirement pension of the person
concerned
and require that person to repay any pension to
which
it is alleged he
was
not entitled on the ground that he receives a survivor’s pension in another Member State in
whose
territory he has also been
resident. However, the amount of the retirement pension paid in the
first
Member State may be reduced, up to the limit of
the amount of the benefits received in the other Member State, by virtue of the application of any national rule precluding
the
cumulation
of benefits;
– Article 45 TFEU must be interpreted as not precluding, in circumstances
such as those in the main proceedings, a
decision
requiring the amount of the retirement pension paid in the
first
Member State to be reduced, up to the limit of benefits received
in the other Member State, by virtue of the application of any rule precluding the
cumulation
of benefits, provided that
decision
does
not lead, in respect of the recipient of those benefits, to an unfavourable situation in
comparison
with
that of a person
whose
situation has no
cross-border
element and,
where
such a
disadvantage
is established, provided that it is justified by
objective
considerations
and is proportionate to the legitimate objective pursued by national law,
which
it
falls
to the national
court
to verify.
Costs
74 Since these proceedings are, for
the parties to the main proceedings, a step in the action pending before the national
court,
the
decision
on
costs
is a matter
for
that
court.
Costs
incurred in submitting observations to the
Court,
other than the
costs
of those parties, are not recoverable.
On those grounds, the Court
(
First
Chamber)
hereby rules:
Article 10 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, as amended most recently by Regulation (EC) No 592/2008
of the European Parliament and of the
Council
of 17 June 2008, must be interpreted as meaning that,
for
the purposes of the
application of the regulation, a person
cannot
have simultaneously two habitual residences in two
different
Member States.
Under the provisions of Regulation No 1408/71, in particular Articles 12(2) and 46a, the competent
institution of a Member
State
cannot,
in
circumstances
such as those in the main proceedings, legitimately
withdraw,
retroactively, the entitlement
to a retirement pension of the person
concerned
and require that person to repay any pension to
which
it is alleged he
was
not entitled on the ground that he receives a survivor’s pension in another Member State in
whose
territory he has also been
resident. However, the amount of the retirement pension paid in the
first
Member State may be reduced, up to the limit of
the amount of the benefits received in the other Member State, by virtue of the application of any national rule precluding
the
cumulation
of benefits.
Article 45 TFEU must be interpreted as not precluding, in circumstances
such as those in the main proceedings, a
decision
requiring the amount of the retirement pension paid in the
first
Member State to be reduced, up to the limit of the benefits
received in the other Member State, by virtue of the application of any rule precluding the
cumulation
of benefits, provided
that
decision
does
not lead, in respect of the recipient of those benefits, to an unfavourable situation in
comparison
with
that of a person
whose
situation has no
cross-border
element and,
where
such a
disadvantage
is established, provided that
it is justified by objective
considerations
and is proportionate to the legitimate objective pursued by national law,
which
it
falls
to the national
court
to verify.
[Signatures]
* Language of the case:
Polish.
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