7 July 2022 (*1)

(Reference for a preliminary ruling – Social security for migrant workers – Regulation (EC) No 987/2009 – Article 44(2) – Scope – Old-age pension – Calculation – Taking into account of child-raising periods completed in other Member States – Article 21 TFEU – Free movement of citizens)

In Case C‑576/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 13 October 2020, received at the Court on 4 November 2020, in the proceedings

Pensionsversicherungsanstalt,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, J. Passer, F. Biltgen (Rapporteur), N. Wahl and M.L. Arastey Sahún, Judges,

Advocate General: N. Emiliou,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 11 November 2021,

after considering the observations submitted on behalf of:

–CC, by G. Schönherr, Rechtsanwalt,

–the Pensionsversicherungsanstalt, by A. Ehm and T. Mödlagl, Rechtsanwälte, and B. Pokorny, Expert,

–the Austrian Government, by C. Leeb, A. Posch, J. Schmoll and B. Spiegel, acting as Agents,

–the Czech Government, by J. Pavliš, M. Smolek and J. Vláčil, acting as Agents,

–the Spanish Government, by I. Herranz Elizalde and S. Jiménez García, acting as Agents,

–the European Commission, by B.‑R. Killmann and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 February 2022,

gives the following

Legal context

European Union law

Regulation (EC) No 883/2004

‘(1) The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment.

…

(3) 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 (OJ 1971 L 149, p. 2) has been amended and updated on numerous occasions in order to take into account not only developments at Community level, including judgments of the Court of Justice, but also changes in legislation at national level. Such factors have played their part in making the Community coordination rules complex and lengthy. Replacing, while modernising and simplifying, these rules is therefore essential to achieve the aim of the free movement of persons.’

‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.’

‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

3. Subject to Articles 12 to 16:

(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

(b) a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject;

(c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State;

(d) a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State;

(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.’

‘1. No rights shall be acquired under this Regulation for the period before its date of application.

3. Subject to paragraph 1, a right shall be acquired under this Regulation even if it relates to a contingency arising before its date of application in the Member State concerned.

…’

Regulation No 987/2009

‘(1) Regulation [No 883/2004] modernises the rules on the coordination of Member States’ social security systems, specifying the measures and procedures for implementing them and simplifying them for all the players involved. Implementing rules should be laid down.

…

(14) Certain specific rules and procedures are required in order to define the legislation applicable for taking account of periods during which an insured person has devoted time to bringing up children in the various Member States.’

‘1. For the purposes of this Article, “child-raising period” refers to any period which is credited under the pension legislation of a Member State or which provides a supplement to a pension explicitly for the reason that a person has raised a child, irrespective of the method used to calculate those periods and whether they accrue during the time of child-raising or are acknowledged retroactively.

3. Paragraph 2 shall not apply if the person concerned is, or becomes, subject to the legislation of another Member State due to the pursuit of an employed or self-employed activity.’

‘Article 87 of [Regulation No 883/2004] shall apply to the situations covered by [Regulation No 987/2009].’

Austrian law

‘An insured person shall be entitled to an old-age pension on attaining the age of 65 years (the normal retirement age) where, by the reference date …, at least 180 insurance months have been completed under this or another federal law, of which at least 84 were obtained by reason of the pursuit of an activity (minimum insurance period).’

‘Periods of insurance shall be understood to mean the contribution periods referred to in Paragraphs 225 and 226 and the substitute qualifying periods referred to in Paragraphs 227, 227a, 228, 228a and 229.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

34. In that context, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 44(2) of Regulation [No 987/2009] to be interpreted as precluding child-raising periods spent in other Member States from being taken into account by a Member State competent to grant an old-age pension – under whose legislation the applicant for a pension has pursued an activity as an employed or self-employed person throughout her working life, with the exception of those child-raising periods – solely on the ground that the applicant for a pension was not pursuing an activity as an employed or self-employed person at the date when, under the legislation of that Member State, the child-raising period started to be taken into account for the child concerned?','prefix':'(1)','indentation':1,'kind':'Paragraph','alignment':'left','bold':false,'italic':false},{

If the first question is answered in the negative:

(2)Is the first clause of Article 44(2) of Regulation [No 987/2009] to be interpreted as meaning that, under its legislation, the Member State which is competent under Title II of Regulation [No 883/2004] does not take child-raising periods into account generally or does not take them into account only in a specific case?’

Consideration of the questions referred

The first question

According to the settled case-law of the Court, it is necessary, in order to interpret a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part, while the origins of the provision may also provide information relevant to its interpretation (judgment of 8 May 2019, Inspecteur van de Belastingdienst, C‑631/17, EU:C:2019:381, paragraph 29).

In the present case, the wording of Article 44 of Regulation No 987/2009 does not expressly indicate whether that provision governs exclusively the taking into account of child-raising periods completed in different Member States. However, it should be noted that the rule laid down in Article 44(2), according to which the person concerned is subject to the legislation of the Member State which was competent under Title II of Regulation No 883/2004 as a result of the pursuit by the person concerned of an activity as an employed or self-employed person in that Member State at the time when the child-raising period began to be taken into account under that legislation, constitutes, as the European Commission has argued, a codification of the case-law of the Court derived from the judgments of 23 November 2000, Elsen (C‑135/99, EU:C:2000:647), and of 7 February 2002, Kauer (C‑28/00, EU:C:2002:82).

Although the EU legislature did not expressly reproduce the test established in those judgments of the ‘close link’ or the ‘sufficiently close link’ between the periods of insurance completed as a result of the pursuit of an occupational activity in the Member State in which the person concerned seeks an old-age pension and the child-raising periods completed by that person in another Member State, the fact remains that the application of the rule laid down in Article 44(2) of Regulation No 987/2009 to the persons concerned in the cases that gave rise to those judgments would have led to the same result reached by the Court in those judgments. As is apparent, in essence, from paragraphs 25 to 28 of the judgment of 23 November 2000, Elsen (C‑135/99, EU:C:2000:647), and from paragraphs 31 to 33 of the judgment of 7 February 2002, Kauer (C‑28/00, EU:C:2002:82), the Court held that the fact that those persons, who had worked exclusively in the Member State responsible for payment of their old-age pension, pursued, at the time of the birth of their child, an activity as an employed or self-employed person in the territory of that Member State made it possible to establish the existence of such a close or sufficiently close link and that, accordingly, the legislation of that Member State was applicable as regards the taking into account of child-raising periods completed in another Member State for the purpose of granting such a pension.

It should be added that since, on the date of entry into force of Article 44 of Regulation No 987/2009, the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), had not yet been delivered by the Court, the lessons arising from that judgment could not be taken into account when that regulation was adopted with a view to a possible codification thereof.

It follows that, in the light of its wording, Article 44 of Regulation No 987/2009 must be interpreted as meaning that it does not govern exclusively the taking into consideration of child-raising periods.

That interpretation is supported by the context of that provision.

It should be noted that, having regard to the title and chapter of Regulation No 987/2009 to which Article 44 of that regulation belongs, namely Title III on ‘Special provisions concerning the various categories of benefits’ and Chapter IV, which brings together the provisions concerning ‘invalidity benefits and old-age and survivors’ pensions’, that provision is a specific provision applicable to pensions benefits and which promotes the taking into account of child-raising periods for the purpose of calculating those benefits. In order to do so, that provision introduces – where the legislation of the Member State competent under Title II of Regulation No 883/2004 does not take those periods into account – a mere subsidiary competence on the part of the Member State that is not competent under the general rules but which was previously competent because the person concerned carried on an activity as an employed or self-employed person in that Member State at the time when, under its legislation, those periods may begin to be taken into account.

Consequently, Article 44 of Regulation No 987/2009 establishes an additional rule that makes it possible to increase the likelihood of the persons concerned having their child-raising periods taken fully into account and thus to avoid, as far as possible, such periods not being taken into account. That provision cannot, therefore, be interpreted as being exclusive in nature.

As regards the objectives of the rules of which Article 44 of Regulation No 987/2009 forms part, it should be noted, as is apparent from recital 3 of Regulation No 883/2004 and from recital 1 of Regulation No 987/2009, respectively, that the purpose of Regulation No 883/2004 is to replace the rules for coordination of national social security systems laid down by Regulation No 1408/71 by modernising and simplifying them for the purpose of attaining the objective of free movement of persons, Regulation No 987/2009 being intended to lay down the detailed rules for its application. Recital 1 of Regulation No 883/2004 states, moreover, that the rules for coordination of national social security systems, such as those laid down by Regulation No 883/2004, by Regulation No 987/2009 and, previously, by Regulation No 1408/71, fall within the framework of free movement of persons.

In that regard, it is clear from settled case-law since the entry into force of Regulation No 883/2004 that, first, although, in the absence of harmonisation at EU level, Member States retain the power to organise their social security systems and to determine, in particular, in that context, the conditions for entitlement to benefits, those States must nonetheless comply with EU law in exercising those powers and, in particular, with the provisions of the FEU Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States (see, to that effect, judgment of 14 March 2019, Vester, C‑134/18, EU:C:2019:212, paragraphs 29 to 31 and the case-law cited).

Second, if, through exercising their right to freedom of movement, migrant workers were to lose social security advantages guaranteed to them by the laws of a Member State, such a consequence might discourage EU workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see, to that effect, judgment of 14 March 2019, Vester, C‑134/18, EU:C:2019:212, paragraph 33).

It follows that the objective of ensuring observance of the principle of free movement, as enshrined in Article 21 TFEU, also prevails in the context of Regulations No 883/2004 and No 987/2009.

It must be stated that an interpretation according to which Article 44 of Regulation No 987/2009 governs exclusively the taking into account of child-raising periods completed in different Member States would amount to allowing the Member State responsible for payment of a person’s old-age pension, within which Member State that person, like the applicant in the main proceedings, worked and paid contributions exclusively both before and after the transfer of their place of residence to another Member State where they raised their children, to refuse to take into account, for the purpose of granting that pension, child-raising periods completed by that person in that other Member State and, consequently, placing that person at a disadvantage, solely by reason of having exercised their right to freedom of movement.

Such an interpretation would thus run counter to the objectives pursued by Regulation No 987/2009, in particular as regards the objective of ensuring observance of the principle of freedom of movement and could therefore jeopardise the effectiveness of Article 44 of that regulation.

In that context, it suffices to note that, according to the case-law of the Court, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (judgment of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 51).

Consequently, it must be held that, in the light of its wording, its context and the objectives pursued by the legislation of which it forms part, Article 44 of Regulation No 987/2009 must be interpreted as not governing exclusively the taking into account of child-raising periods completed by the same person in different Member States.

It is necessary, in the second place, to examine whether the case-law resulting from the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), can be applied to a situation such as that at issue in the main proceedings, in which, although Regulation No 987/2009 is applicable ratione temporis, the person concerned does not fulfil the condition of pursuing an activity as an employed or self-employed person imposed by Article 44(2) of that regulation in order, for the purpose of granting an old-age pension, to have taken into account, by the Member State responsible for payment of that pension, other child-raising periods which he or she has completed in other Member States. In the case which gave rise to that judgment, the person concerned had, at the time when her children were born, ceased working in the Member State responsible for payment of her old-age pension and had temporarily established her place of residence in the territory of another Member State, in which she had raised her children and had not pursued an activity as an employed or self-employed person.

Second, as regards the compatibility of the legislation applicable in that case with Article 21 TFEU, the Court observed, in paragraphs 38 to 40 of that judgment, that, although Member States retain their power to organise their social security systems, they must nonetheless, when exercising that power, observe European Union law and, in particular, the provisions of the FEU Treaty on freedom of movement for citizens, as guaranteed in Article 21 TFEU. In addition, the Court noted that, in a situation such as that at issue in the case which gave rise to that judgment, the national provisions led to a result where persons concerned who had not completed periods of compulsory contribution by virtue of an activity carried on as an employed or self-employed person during the raising or immediately before the birth of the child were not entitled to have taken into account, for the purpose of determining the amount of their old-age pension, their child-raising periods solely because they had temporarily established their place of residence in the territory of another Member State, even though they were not employed as an employee or self-employed person in that other Member State.

Finally, the Court held, in paragraphs 41 to 45 of that judgment, that, in those circumstances, such persons were accorded, in the Member State of which they are nationals, treatment less favourable than that which they would have enjoyed had they not availed themselves of the opportunities offered by the FEU Treaty in relation to freedom of movement of persons. National legislation which places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State thereby gives rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the European Union in the exercise of the citizen’s freedom to move. The Court concluded that, in such a situation, first, the fact of precluding child-raising periods completed outside the territory of the competent Member State from being taken into account, provided for by the legislation of that Member State, is contrary to Article 21 TFEU and, second, that provision of European Union law requires the competent institution of that Member State for the granting of an old-age pension to take account of child-raising periods completed by the person concerned in another Member State for the purpose of calculating the amount of that pension.

It must be stated that, since, as follows from paragraph 55 of the present judgment, Article 44 of Regulation No 987/2009 does not govern exclusively the taking into account of child-raising periods abroad and, as is apparent from paragraph 51 of the present judgment, the objective of ensuring observance of the principle of freedom of movement, as enshrined in Article 21 TFEU, also prevails in the context of Regulations No 883/2004 and No 987/2009, the lessons from the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), are applicable to a situation such as that at issue in the main proceedings, in which Regulation No 987/2009 is applicable ratione temporis, but where the person concerned does not fulfil the condition of pursuing an activity as an employed or self-employed person imposed by Article 44(2) of that regulation in order, for the purpose of granting an old-age pension, to have taken into account, by the Member State responsible for payment of that pension, other child-raising periods which that person has completed in other Member States.

Furthermore, as is apparent from paragraphs 22 to 25 of the present judgment, the underlying facts of the case in the main proceedings are comparable to those of the case which gave rise to the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), referred to in paragraph 56 of this judgment, since, first, in the present case, the applicant in the main proceedings worked and paid contributions exclusively in the Member State responsible for payment of her old-age pension, namely in Austria, both before and after her move to Hungary and then to Belgium, where she raised her children and, second, she did not pursue an activity as an employed or self-employed person in Austria at the relevant date for the child-raising periods to be taken into account for the purpose of granting an old-age pension in that Member State. Thus, as in the situation at issue in the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), there is a sufficient link between the child-raising periods completed by the applicant in the main proceedings abroad and the periods of insurance completed as a result of the pursuit of an occupational activity in Austria. Therefore, it must be held that the legislation of that Member State must be applied for the purpose of taking into account and crediting those periods, with a view to granting an old-age pension by that Member State.

It is also common ground that, if the applicant in the main proceedings had not left Austria, her child-raising periods would have been taken into account for the purpose of calculating her Austrian old-age pension. Accordingly, there is no doubt that, like the applicant in the case which gave rise to the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), the applicant in the main proceedings is disadvantaged solely on the ground that she exercised her right to freedom of movement, which is contrary to Article 21 TFEU.

It follows that, in a situation such as that at issue in the main proceedings, in which the person concerned worked and paid contributions exclusively in the Member State responsible for payment of his or her old-age pension, both before and after the transfer of his or her place of residence to the other Member States in which he or she completed his or her child-raising periods, that Member State is required, in accordance with the case-law resulting from the judgment of 19 July 2012, Reichel-Albert (C‑522/10, EU:C:2012:475), to take into account, for the purpose of granting of an old-age pension, those periods pursuant to Article 21 TFEU.

In the light of the foregoing considerations, the answer to the first question is that Article 44(2) of Regulation No 987/2009 must be interpreted as meaning that, where, for the purpose of granting an old-age pension, the person concerned does not fulfil the condition of pursuing an activity as an employed or self-employed person imposed by that provision in order to have taken into account, by the Member State responsible for payment of that pension, child-raising periods completed by that person in other Member States, that Member State is required to take account of those periods pursuant to Article 21 TFEU, provided that that person worked and paid contributions exclusively in that Member State, both before and after transferring that person’s place of residence to another Member State where the person carried out those child-raising periods.

The second question

Since that question arises only if the Court were led to consider that Article 44(2) of Regulation No 987/2009 applies to a situation such as that at issue in the main proceedings and, in the present case, the conditions for the application of that provision are not met, there is no need to answer it.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Second Chamber) hereby rules:

Article 44(2) 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 must be interpreted as meaning that, where, for the purpose of granting an old-age pension, the person concerned does not fulfil the condition of pursuing an activity as an employed or self-employed person imposed by that provision in order to have taken into account, by the Member State responsible for payment of that pension, child-raising periods completed by that person in other Member States, that Member State is required to take account of those periods pursuant to Article 21 TFEU, provided that that person worked and paid contributions exclusively in that Member State, both before and after transferring that person’s place of residence to another Member State where the person carried out those child-raising periods.

[Signatures]

*1 Language of the case: German.