(Reference for a preliminary ruling from the Sąd Najwyższy)

(Social security for migrant workers – Article 45(1) of Regulation (EEC) No 1408/71 – Minimum period required by national law for acquisition of entitlement to a retirement pension – Account to be taken of the period of contribution completed in another Member State – Aggregation – Rules for calculation)

Summary of the Judgment

Social security for migrant workers – Old-age and survivor’s insurance – Periods to be taken into consideration

(Council Regulation No 1408/71, Art. 45(1))

Article 45(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

(see para. 39, operative part)

3 March 2011 (*)

(Social security for migrant workers – Article 45(1) of Regulation (EEC) No 1408/71 – Minimum period required by national law for acquisition of entitlement to a retirement pension – Account to be taken of the period of contribution completed in another Member State – Aggregation – Rules for calculation)

In Case C‑440/09,

REFERENCE for a preliminary ruling under Article 234 EC by the Sąd Najwyższy (Poland), made by decision of 18 August 2009, received at the Court on 11 November 2009, in the proceedings

Stanisława Tomaszewska,

THE COURT (Fifth Chamber),

composed of J.-J. Kasel (Rapporteur), President of the Chamber, A. Borg Barthet and E. Levits, Judges,

Advocate General: J. Kokott,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 17 November 2010,

after considering the observations submitted on behalf of:

– Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu, by D. Karwala-Szot and B. Rębilas, acting as Agents,

– the Polish Government, by J. Faldyga and A. Siwek, acting as Agents,

– the European Commission, by V. Kreuschitz and M. Owsiany-Hornung, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 The present reference for a preliminary ruling concerns the interpretation of Article 45 of 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), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) (‘Regulation No 1408/71’).

2 The reference has been made in the context of proceedings between Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu (Social Security Institution – Nowy Sącz Branch) (‘the Zakład Ubezpieczeń Społecznych’) and Ms Tomaszewska concerning the account to be taken of the period of contribution which she completed in another Member State and the detailed rules for determining the minimum period required under Polish law for acquisition of entitlement to a retirement pension.

Legal context

European Union legislation

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.

ECLI:EU:C:2025:140

(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.’

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.

(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

The Zakład Ubezpieczeń Społecznych takes the view that the order laid down in Article 45(1) of Regulation No 1408/71 should be followed for the purpose of taking account of the different insurance periods. In order to determine whether the insurance period completed in a Member State is sufficient to confer entitlement to a retirement pension, the competent institution of that Member State must first apply only the legislation of that Member State and determine whether the insurance period completed there is capable of conferring entitlement to a retirement pension paid by that institution. If the insurance periods thus determined are insufficient, insurance periods completed in other Member States may then be taken into account.

18That approach, it argues, is supported by the wording of Article 15 of Regulation No 574/72. It also allows aggregation of all insurance periods completed abroad – both contribution periods and non-contribution periods – since any limitation on the account to be taken of certain contribution periods does not apply to periods completed abroad, which has, inter alia, a significant bearing on a situation in which such periods were completed under the legislation of a Member State which does take them into account for the purpose of confirming the entitlement to benefits.

19By contrast, according to the Sąd Apelacyjny w Krakowie, each Member State is required, in order to determine entitlement to social security benefits in accordance with Article 45(1) of Regulation No 1408/71 to treat periods of insurance completed under the legislation of any other Member State of the European Union as equivalent to periods of insurance completed within its own territory.

20Having established that the position of the Sąd Apelacyjny w Krakowie was nevertheless supported by the wording of the first sentence of Article 46(2)(a) of Regulation No 1408/71 concerning the calculation of the theoretical amount of the benefit, the referring court found that the issue in dispute came down to the question of whether or not non-contribution periods can amount to a maximum of one third of the duration of proven contribution periods completed in Poland or to a maximum of one third of all insurance periods completed in the course of the insured person’s professional career, including those completed in other Member States.

It was in those circumstances that the Sąd Najwyższy decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 45(1) of [Regulation No 1408/71], in conjunction with Article 15(1)(a) of [Regulation No 574/72], to be interpreted as meaning that the competent institution of a Member State is required – on establishing that a worker has failed to satisfy the condition of having completed in that Member State a period of insurance which is sufficient under the law of that State for acquisition of entitlement to a retirement pension – to take account of a period of insurance completed in another Member State in such a way that it must recalculate the period of insurance on which acquisition of entitlement depends by applying the rules arising from national law and treating the period completed in the other Member State as a period completed in its own State, or must it add the period completed in the other Member State to the national period calculated previously on the basis of the rules in question?’

The question referred for a preliminary ruling

22It should be noted, as a preliminary point, that the dispute between the Zakład Ubezpieczeń Społecznych and Ms Tomaszewska concerns the acquisition of entitlement to a retirement pension, a question which comes within the scope of Article 45(1) of Regulation No 1408/71, whereas the rules concerning the calculation of the amount of the benefits are laid down in Article 46 et seq. of that regulation (see, to that effect, Joined Cases C‑45/92 and C‑46/92 Lepore and Scamuffa [1993] ECR I‑6497, paragraph 13, and Case C‑251/94 Lafuente Nieto [1996] ECR I‑4187, paragraph 49).

23By its question, the national court asks, essentially, whether Article 45(1) of Regulation No 1408/71 is to be interpreted as meaning that, in the determination of the minimum insurance period required under national law for the acquisition of entitlement to a retirement pension by a migrant worker, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for under that Member State’s legislation, only the contribution periods completed in that Member State or all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

24According to settled case-law, the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between European Union workers (Case C‑12/93 Drake [1994] ECR I‑4337, paragraph 27; Joined Cases C‑88/95, C‑102/95 and C‑103/95 Martínez Losada and Others [1997] ECR I‑869, paragraph 43; and Case C‑306/03 Salgado Alonso [2005] ECR I‑705, paragraph 27).

25The system put in place by Regulation No 1408/71 is merely a system of coordination, concerning, inter alia, the determination of the legislation applicable to employed and self‑employed persons who make use, under various circumstances, of their right to freedom of movement (Case C‑493/04 Piatkowski [2006] ECR I‑2369, paragraph 20; Case C‑50/05 Nikula [2006] ECR I‑7029, paragraph 20; and Case C‑103/06 Derouin [2008] ECR I‑1853, paragraph 20).

26It is inherent in such a system that the conditions governing the constitution of periods of employment or insurance will differ depending on the Member State in which the person concerned has worked. Those conditions are, in accordance with Article 1(r) of Regulation No 1408/71, defined exclusively by the legislation of the Member State under which the periods in question were completed.

27In laying down those conditions, however, the Member States are required to comply with European Union law, in particular with the objective pursued by Regulation No 1408/71 and the principles on which it is based.

28In that regard, it must be borne in mind that the objective of Regulation No 1408/71, as stated in the second and fourth recitals in its preamble, is to ensure free movement of employed and self‑employed persons within the European Union, while respecting the special characteristics of national social security legislation. To that end, as is clear from the fifth, sixth and tenth recitals in its preamble, that regulation upholds the principle of equality of treatment of workers under the various measures of national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right of free movement (Piatkowski, paragraph 19; Nikula, paragraph 20; and Derouin, paragraph 20).

29As regards old-age insurance in particular, Article 45(1) of Regulation No 1408/71 requires the competent institution of the Member State the legislation of which makes the acquisition of entitlement to benefits subject to the completion of a minimum insurance period to take account, where necessary in order for the worker concerned to acquire entitlement to a benefit, of periods of insurance completed under the legislation of any other Member State as if those periods had been completed under the legislation which that competent institution applies.

30Thus, Article 45 of Regulation No 1408/71 implements the principle of aggregation of insurance, residence or employment periods as laid down in Article 42(a) EC. This is one of the basic principles governing European Union coordination of social security schemes in the Member States, its purpose being to ensure that exercise of the right, conferred by the EC Treaty, to freedom of movement does not have the effect of depriving workers of social security advantages to which they would have been entitled if they had spent their entire working life in only one Member State. Such a consequence might discourage European Union workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (Case C‑481/93 Moscato [1995] ECR I‑3525, paragraph 28, and Salgado Alonso, paragraph 29).

31Consequently, a Member State is entitled to impose a minimum contribution period for the acquisition of entitlement to a pension provided for by national legislation and to define the nature and limits of insurance periods which may be taken into account for that purpose, on condition that, in accordance with Article 45 of Regulation No 1408/71, periods completed under the legislation of any other Member State are also taken into consideration under the same conditions as if they had been completed under national legislation (see, to that effect, Salgado Alonso, paragraph 31).

32In the present case, it is apparent from the case-file submitted to the Court that contribution periods completed in another Member State are recognised by the Zakład Ubezpieczeń Społecznych for the purpose of determining the period required for the acquisition of entitlement to a retirement pension and are added to the total of all the contribution periods completed in Poland. However, those same contribution periods completed in another Member State are not taken into consideration for the purpose of determining the one-third maximum limit for non-contribution periods in relation to contribution periods.

33It is, however, not disputed that a worker such as the one in question in the main proceedings, who has completed contribution periods in Poland and in another Member State, is thereby placed in a less favourable position than a worker who has completed all of his contribution periods in Poland.

34As shown by the calculation made by the Zakład Ubezpieczeń Społecznych, Ms Tomaszewska can rely on a non-contribution period of only 60 months, giving a total contribution period of 346 months, which is insufficient for her to acquire entitlement to a pension. By contrast, if Ms Tomaszewska had completed all of her contribution periods in Poland, instead of exercising her right of free movement and completing contribution periods in another Member State, she would have been able to rely on a non-contribution period of 76 months and would thus have had a total of 362 months of contribution, corresponding to the minimum period of 30 years required to qualify for a pension.

35In those circumstances, an application of national law, such as that effected by the Zakład Ubezpieczeń Społecznych in the main proceedings, which, for the purposes of determining the one-third maximum limit for non-contribution periods in relation to contribution periods, has the effect that European Union workers who have exercised their right of free movement are treated less favourably than those who have not exercised that right, is liable to impede the free movement of workers and undermines the application of the aggregation rules laid down in Article 45 of Regulation No 1408/71.

36It follows from the case-law referred to in paragraph 31 of this judgment that, although Polish law may impose a minimum contribution period for the purpose of acquisition of entitlement to a retirement pension and for determining the nature of and limits on contribution periods which may be taken into account, it may do so solely on condition that contribution periods completed in another Member State are taken into consideration under the same conditions as those completed in Poland, as required by Article 45 of Regulation No 1408/71.

37Consequently, the contribution periods completed by Ms Tomaszewska in any other Member State must be treated in the same way as the contribution periods completed in Poland and must, therefore, be included in the calculation for determining the one-third limit which non-contribution periods may not exceed in relation to contribution periods.

38As regards the argument put forward by the Polish Government, to the effect that the non-inclusion of contribution periods completed in other Member States for the purpose of determining the one-third limit which non-contribution periods may not exceed in relation to contribution periods is justified on grounds of administrative difficulties and other practical problems, suffice it to note that Article 39(3) EC allows for limitations on the exercise of the right of free movement of workers only in so far as such limitations can be justified on grounds of public policy, public security or public health. Accordingly, apart from those cases expressly referred to in the Treaty, no impediments to the free movement of workers may be justified (see, to that effect, Case C‑10/90 Masgio [1991] ECR I‑1119, paragraph 24, and Case C‑400/02 Merida [2004] ECR I‑8471, paragraph 30).

39In the light of the foregoing, the answer to the question referred is that Article 45(1) of Regulation No 1408/71 must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

Costs

40Since 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 (Fifth Chamber) hereby rules:

Article 45(1) of 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, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

[Signatures]

*

Language of the case: Polish.