(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Social security for migrant workers – Austrian rules on compensatory supplements to retirement pensions – Classification of benefits and lawfulness of the residence requirement under Regulation (EEC) No 1408/71)

Summary of the Judgment

Social security for migrant workers – Special non-contributory benefits – Coordination scheme laid down in Article 10a of Regulation No 1408/71 – Scope – Compensatory supplement to retirement or invalidity pensions granted on the basis of objective criteria and not financed by contributions from insured persons – Benefit mentioned in Annex IIa to that regulation – Included

(Council Regulation No 1408/71, Arts 4(2a) and 10a and Annex IIa)

The provisions of Article 10a of Regulation No 1408/71, as amended and updated by Regulation No 118/97, and those of Annex IIa to that regulation are to be interpreted as meaning that a compensatory supplement, such as the Austrian compensatory supplement, mentioned in Annex IIa, which tops up a retirement pension or an invalidity pension and is intended to ensure a minimum means of subsistence for its recipient where the pension is insufficient, the granting of which is dependent on objective criteria defined by law and which is never financed from contributions made by the insured persons, falls within the scope of that regulation and therefore constitutes a special non-contributory benefit within the meaning of Article 4(2a) of that regulation. Accordingly the situation of a person who, after 1 June 1992, the date of entry into force of Regulation No 1247/92 which inserted Articles 4(2a) and 10a into Regulation No 1408/71, fulfils the conditions for the grant of that benefit is governed with effect from 1 January 1995, the date of the Republic of Austria’s accession to the European Union, solely by the coordinating provisions laid down by Article 10a.

(see paras 26, 29, 31, operative part)

JUDGMENT OF THE COURT (Fourth Chamber) 29 April 2004 (1)

(Social security for migrant workers – Austrian rules on compensatory supplements to retirement pensions – Classification of benefits and lawfulness of the residence requirement under Regulation (EEC) No 1408/71)

In Case C-160/02,

REFERENCE to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

Sozialversicherungsanstalt der gewerblichen Wirtschaft,

on the interpretation of Articles 4(2a) and 10a of, and Annex IIa to, Council Regulation (EEC) No 1408/71 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),

THE COURT (Fourth Chamber),

composed of : J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges,

Advocate General: J. Kokott, Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

– the Sozialversicherungsanstalt der gewerblichen Wirtschaft, by P. Bachmann, Rechtsanwalt,

– the Austrian Government, by H. Dossi, acting as Agent,

– the German Government, by W.-D. Plessing, acting as Agent,

– the Netherlands Government, by H.G. Sevenster, acting as Agent,

– the Finnish Government, by T. Pynnä, acting as Agent,

– the United Kingdom Government, by J.E. Collins, acting as Agent, and E. Sharpston QC,

– the Commission of the European Communities, by G. Braun and H. Michard, acting as Agents,

after hearing the oral observations of the Austrian Government, represented by G. Hesse, acting as Agent, of the United Kingdom Government, represented by C. Jackson, acting as Agent, and by E. Sharpston, and of the Commission, represented by G. Braun, at the hearing on 23 October 2003,

after hearing the Opinion of the Advocate General at the sitting of 25 November 2003,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5 Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

‘Is Article 10a of Regulation … No 1408/71 … , in conjunction with Annex IIa, to be interpreted as meaning that the compensatory supplement provided for under [the GSVG] falls within its scope and therefore constitutes a special non-contributory benefit within the meaning of Article 4(2a) of the regulation, so that only the coordinating provisions laid down by Article 10a of the regulation are applicable to a person who, like the claimant, fulfils after 1 June 1992 the conditions for the granting of that benefit?’

The question referred for a preliminary ruling

By its question the referring court asks essentially whether the compensatory supplement provided for by the GSVG, a benefit included in Annex IIa to Regulation No 1408/71, constitutes a special non-contributory benefit within the meaning of Article 4(2a) of that regulation, so that the situation of a person who, like the claimant in the main proceedings, fulfils after 1 June 1992 the conditions for the granting of that benefit is governed with effect from 1 January 1995, the date of Austria’s accession to the European Union, solely by the coordinating provisions in Article 10a of that regulation and the benefit can therefore be paid only to a person habitually resident in Austria.

The provisions in Article 10a of Regulation No 1408/71 derogating from the principle of the exportability of social security benefits must be interpreted strictly. That provision can apply only to benefits which satisfy the conditions defined in Article 4(2a) of Regulation No 1408/71, that is, benefits which are both special and non-contributory and which are listed in Annex IIa to that regulation (see Case C-215/99 Jauch, cited above, paragraph 21).

As stated in paragraph 6 above, the compensatory supplement is included in the list of special non-contributory benefits within the meaning of Article 4(2a) of Regulation No 1408/71, to which Annex IIa to that regulation applies.

It therefore remains to be examined whether, firstly, the benefit in question is special in nature and is intended to provide supplementary, substitute or ancillary cover against the risks covered by one or more of the branches of social security referred to in Article 4(1) of Regulation No 1408/71, and secondly whether such benefit is non-contributory.

Special benefit

For the Sozialversicherungsanstalt, all the governments which lodged observations and the Commission, the special benefits which fall under Article 4(2a) are special benefits of a mixed kind. They are characterised by the fact that they are connected partly to social security, in that they benefit as of right persons who fulfil the conditions for the grant of the social security benefits to which they are linked, and partly to social assistance, in the sense that they are not dependent on periods of work or contributions and that they are intended to relieve a clear need.

The Austrian compensatory supplement fulfils the criteria identified by the Court in its judgment in Case 313/86 Lenoir [1988] ECR 5391.

It ensures the provision of an income supplement to those persons receiving insufficient social security benefit by guaranteeing a minimum means of subsistence to those persons whose total income falls below a statutory threshold. As it is intended to guarantee a minimum subsistence income for pensioners, the benefit is by nature social assistance. Such a benefit is always closely linked to the socio-economic situation of the country concerned and its amount, fixed by law, takes account of the standard of living in that country. As a result its purpose would be lost if it were to be granted outside the State of residence.

A special benefit within the meaning of Article 4(2a) of Regulation No 1408/71 is defined by its purpose. It must either replace or supplement a social security benefit and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria (see to that effect Case C-20/96 Snares [1997] ECR I-6057, paragraphs 33, 42 and 43, Case C-297/96 Partridge [1998] ECR I-3467, paragraph 34, and Case C-43/99 Leclère and Deaconescu [2001] ECR I-4265, paragraph 32).

As all the interveners have stated, the Austrian compensatory supplement tops up a retirement pension or an invalidity pension. It is by nature social assistance in so far as it is intended to ensure a minimum means of subsistence for its recipient where the pension is insufficient. Its grant is dependent on objective criteria defined by law. Consequently, it must be classified as a ‘special benefit’ within the meaning of Regulation No 1408/71.

Non-contributory benefit

For the Sozialversicherungsanstalt, all the governments which have lodged observations and the Commission, the Austrian compensatory supplement is non-contributory in nature.

The relevant determining criterion is how the benefit is actually financed (see to that effect Jauch, cited above, paragraphs 32 and 33). The Court must consider whether that financing comes directly or indirectly from social contributions or from public resources.

In the case of the Austrian compensatory supplement, the costs are borne by a social institution which then receives reimbursement in full from the relevant Land, which in turn receives from the Federal budget the sums necessary to finance the benefit. At no time do the contributions of insured persons form part of this financing arrangement.

Consequently, it is established that the Austrian compensatory supplement must be regarded as being non-contributory within the meaning of Article 4(2a) of Regulation No 1408/71.

The answer to the question referred for a preliminary ruling by the Oberster Gerichtshof must therefore be that the provisions of Article 10a of Regulation No 1408/71 and those of Annex IIa thereto must be interpreted as meaning that the compensatory supplement, within the meaning of the GSVG, falls within the scope of that regulation and therefore constitutes a special non-contributory benefit within the meaning of Article 4(2a) of that regulation, so that the situation of a person who, after 1 June 1992, fulfils the conditions for the grant of that benefit is governed with effect from 1 January 1995, the date of the Republic of Austria’s accession to the European Union, solely by the coordinating provisions laid down by Article 10a.

Costs

The costs incurred by the Austrian, German, Netherlands, Finnish and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. 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.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the questions referred to it by the Oberster Gerichtshof by order of 26 March 2002, hereby rules:

The provisions of Article 10a of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, and those of Annex IIa thereto must be interpreted as meaning that the compensatory supplement, within the meaning of the Gewerbliche Sozialversicherungsgesetz (Austrian Federal Law of 11 October 1978 on Social Insurance for self-employed persons engaged in trade and commerce), falls within the scope of that regulation and therefore constitutes a special non-contributory benefit within the meaning of Article 4(2a) of that regulation, so that the situation of a person who, after 1 June 1992, fulfils the conditions for the grant of that benefit is governed with effect from 1 January 1995, the date of the Republic of Austria’s accession to the European Union, solely by the coordinating provisions laid down by Article 10a.

Delivered in open court in Luxembourg on 29 April 2004.

Registrar

President of the Fourth Chamber

ECLI:EU:C:2025:140

Language of the case: German.