19.3.2011

Official Journal of the European Union

C 89/5

(Case C-589/10)

2011/C 89/11

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Janina Wencel

Defendant: Zakład Ubezpieczeń Społecznych w Białymstoku

Questions referred

1.Does the principle of freedom of movement and residence in the Member States of the European Union, as expressed in Articles 21 and 20(2) of the Treaty on the Functioning of the European Union, mean that Article 10 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 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 equivalent habitual residences) in the territory of two Member States, including of one other than that in which the institution responsible for payment of the retirement pension is situated?

2.Must Articles 21 and 20(2) of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation (EEC) No 1408/71 be interpreted as precluding the application of national provision Article 114(1) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Polish Law on retirement pensions and other pensions from the Social Security Fund) of 17 December 1998, in conjunction with Article 4 of the Agreement of 9 October 1975 between the People’s Republic of Poland and the Federal Republic of Germany on pension and accident insurance, 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 interest) 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) and 21 of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation No 1408/71 be interpreted as precluding the application of national provision Article 138(1) and (2) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych of 17 December 1998, 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 interest) 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 it was received, been advised by the Polish insurance institution of the need to inform it also 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 of one of those countries as competent to consider applications concerning retirement pensions?

OJ English Special Edition 1971 (II), p. 416.