28.5.2011

EN

Official Journal of the European Union

C 160/12

(Case C-122/11)

2011/C 160/13

Language of the case: French

Parties

Applicant: European Commission (represented by: V. Kreuschitz and G. Rozet, lawyers)

Defendant: Kingdom of Belgium

Form of order sought

—Declare that, by having removed with effect only from 1 August 2004 the condition of residence which precluded the indexation of the pensions of citizens of the European Union and of the EEA residing outside a country having concluded a reciprocal agreement with Belgium, and by not having removed the discrimination which they suffered throughout the period before 1 August 2004, by being deprived of part of their pension, the Kingdom of Belgium has failed to fulfil its obligations under Articles 4 and 7 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (1) and Article 18 and 45 TFEU which lay down the principle of non-discrimination on grounds of nationality;

—Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission claims that the national legislation discriminates between nationals of other Member States to the extent that it imposes only on them a condition of residence on the territory of one of the Member States or of one of the countries which concluded a reciprocal agreement with Belgium in order to benefit from the indexation of their pension for the period up to 1 August 2004.

The Commission pleads, in addition, that the said Regulation (EC) No 883/2004 no longer provides that residence on the territory of a Member State is necessary in order to be able to rely on the principle of equal treatment. The persons covered by that regulation may therefore request the application of that principle even if they reside in a third State. Thus, a State may no longer reserve indexation of pensions for its nationals alone, but must also grant such indexation to retired persons residing in a third State.

Finally, according to the Commission, legitimate expectations, practical difficulties and the financial impact, grounds relied on by the Belgian authorities to justify the impossibility of applying the amended legislation retroactively, cannot be accepted.

(1) OJ 2004 L 166, p. 1, corrigendum OJ 2004 L 200, p. 1.