Case C‑576/20

78.In the light of the above considerations, I propose that the Court answer the first question as follows: in a situation where Regulation No987/2009 applies ratione temporis, EU law does not require a Member State on whose territory a person has been employed or self-employed to take into account a child-raising period completed by that same person in another Member State as if the child had been raised in its own territory unless all the conditions laid down in Article44(2) of Regulation No987/2009 are met in the situation at issue.

79.If, contrary to what I propose, the Court were to find that the judicial solution in Reichel-Albert remains applicable in the context of the main proceedings so that Austria must apply its legislation to child-raising periods completed in other Member States even where they do not fall squarely within the ambit of Article44(2) of Regulation No987/2009, I would add that, in my view, that is possible only where two requirements are met.

80.First, as I indicated in the previous sections of this Opinion, there would have to be a ‘sufficiently close’ link between the child-raising periods completed in Member State B and the qualifying periods completed by the applicant for an old-age pension in Member State A. As the Commission rightly suggests, no such link may exist unless the applicant establishes, at a minimum, that Member State A was his or her last Member State of employment before he or she started raising his or her child(ren). Yet, even where that is the case, one must still assess whether such a link is ‘sufficiently close’.

81.On that point, the PVA remarked, in my view correctly, that the Appellant’s situation in the main proceedings and that of MsReichel-Albert in the eponymous case are, to a certain extent, different. In Reichel-Albert, the Court appeared to give significant weight to the fact that MsReichel-Albert had, at the time of the birth of her first child, temporarily stopped working and, solely on family related grounds, established her place of residence in Belgium.(43) In the context of the main proceedings, the Appellant’s departure from Austria in 1987 was motivated by the prospect of pursuing studies in the United Kingdom. Arguably, that transitional period of further education makes the link between the Appellant’s period of insurance in Austria prior to the birth of her children and the disputed child-raising periods in Belgium and Hungary more tenuous than in Reichel-Albert.(44)

82.Second, the applicant for an old-age pension would also need to demonstrate that, had he or she stayed in Member State A (in this instance, Austria), the time dedicated to raising his or her children would have been taken into account. In other words, the applicant would have to show that, because he or she moved and changed residence to another Member State, he or she is now effectively in a worse position than if he or she had simply remained in Member State A.

B.The second question

83.The second question builds upon the answer that the Court is to give to the first question. By that question, the referring court requests guidance on whether Article44(2) of Regulation No987/2009 requires Member State A to apply its legislation only in situations where there is no legislation on child-raising periods completed in Member State B or also in those cases where such legislation does exist in Member State B but the time dedicated to raising children is not taken into account in concreto by that Member State. The referring court asks that question with regard, in particular, to the Opinion of Advocate General Jääskinen in Reichel-Albert.(45)In that case, Advocate General Jääskinen defended the view that Article44(2) will not apply where Member State B provides for the possibility of taking such periods into account. He considered the fact that, in practice, the person concerned does not benefit from that advantage because of his or her personal situation to be immaterial.(46)

84.I do not see any reason why the Court should arrive at a different finding in the present case. As set out in point56above, Article44(2) of Regulation No987/2009 contains a two-fold obligation. First, Member State A must apply its legislation to the child-raising periods completed in Member State B if the conditions listed in that provision are satisfied. Those conditions include the requirement that the child-raising periods are not taken into account under the legislation of Member State B. Second, if the legislation of Member State A is applicable, then that Member State must treat such periods as though they had been completed on its territory.

85.I admit that the terms in Article44(2) of Regulation No987/2009 are somewhat ambiguous since the requirement relating to the taking into account of the disputed child-raising period by Member State B is formulated as follows: ‘where, under the legislation of [Member State B], no child-raising period is taken into account…’. As the referring court explains, this could mean either that such period is not taken into account in principle by Member State B because the latter has no legislation dealing with child-raising periods or in concreto because, in a given case, the person concerned was not able to have such period recognised under the legislation of Member State B.

86.There are, however, t wo reasons that convince me not to follow that second interpretation.

87.First, it would be too cumbersome and impractical to oblige the authorities of Member State A to proceed to an assessment of the merits of the person’s claim under the legislation of another Member State (Member State B) in order to determine whether the legislation of Member State A is applicable to that person’s situation. Second, such a reading of the conditions laid down in Article44(2) of Regulation No987/2009 would potentially lead to situations where a person could (i) claim before the authorities of Member State B that he or she is entitled to have the child-raising periods completed in that Member State taken into account pursuant to that Member State’s legislation and (ii) if such a claim fails, bring his or her case before the competent authorities of Member State A and argue that, because his or her claim before the authorities of Member State B was unsuccessful, Article44(2) of that regulation means that the legislation of Member State A may be applicable to his or her situation.

88.In my view, that provision was not adopted so that old-age pension applicants may try their luck before the competent authorities of two different Member States with regard to the taking into account of a single child-raising period. As indicated in point64 above, Article44(2) of Regulation No987/2009 carves out an exception to the rules of competence provided for in TitleII of Regulation No883/2004 to make a Member State that is no longer competent under such rules (Member State A) responsible for taking into account child-raising periods completed in another Member State (Member State B). The aim of that provision is not for the legislation of both Member State A and Member State B to end up being applicable to the same child-raising period, but rather that, in a situation where Member State B has no legislation providing generally for the taking into account of child-raising periods, Member State A may be required to apply its legislation to the particular situation at hand.

89.It follows from the above that Article44(2) of Regulation No987/2009 must, in my view, be interpreted as meaning that Member State A is not required to apply its legislation to a particular child-raising period in circumstances where Member State B (the competent Member State pursuant to TitleII of Regulation No883/2004) provides, in principle, for such period to be taken into account. Thus, if Belgium and Hungary had (in October 2017) a general rule or provision in place allowing for the time devoted to raising children to be taken into account– which is for the referring court to determine– then, in the context of the main proceedings, the PVA would not be required to apply Austrian legislation to the disputed child-raising periods.

V.Conclusion

90.In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria) as follows:

–In a situation where Regulation (EC) No987/2009 of the European Parliament and of the Council of 16September 2009 laying down the procedure for implementing Regulation (EC) No883/2004 on the coordination of social security systems applies ratione temporis, EU law does not require a Member State on whose territory a person has been employed or self-employed to take into account a child-raising period completed by that same person in another Member State as if the child had been raised in its own territory unless all the conditions laid down in Article44(2) of that regulation are met in the situation at issue.

–The fact that such period is taken into account by law but is not taken into account in practice, in the light of the situation at issue, in the Member State which is competent under TitleII of Regulation (EC) No883/2004 of the European Parliament and of the Council of 29April 2009 on the coordination of social security systems, does not in itself affect the interpretation of Article44(2) of Regulation No987/2009.

1Original language: English.

2Regulation of the European Parliament and of the Council of 16September 2009 (OJ 2009 L284, p.1).

3Regulation of the Council of 14June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p.416).

4Regulation of the European Parliament and of the Council of 29April 2004 on the coordination of social security systems (OJ 2004 L166, p.1).

5The PVA explained before the Court that it had included the time spent in the United Kingdom (from 1January 1993 to 8February 1993) in its calculation of the Appellant’s pension rights, since the Appellant had initially indicated that she had been back in Austria as of 31December 1992. That period was thus counted alongside the other child-raising periods completed on the Austrian territory and is not part of the ‘disputed child-raising periods’ defined in point21 of that Opinion.

6Judgment of 19July 2012 (C‑522/10, EU:C:2012:475) (‘Reichel-Albert’).

7Judgment of 23November 2000 (C‑135/99, EU:C:2000:647) (‘Elsen’).

8Judgment of 7February 2002 (C‑28/00, EU:C:2002:82) (‘Kauer’).

9Article44(2) of Regulation No987/2009 reflects the general principle of equal treatment that Article5 of Regulation No883/2004 seeks to codify (see also, to that effect, recital5 of the latter regulation).

10I note, in passing, that Article44(3) of Regulation No987/2009 makes clear that the obligation provided for in paragraph2 of that same article does 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.

11In paragraphs26 and 27 of its judgment.

12In paragraph29 et seq.

13Ibid., paragraph25.

14Ibid., paragraph26.

15See Kauer, paragraph32 et seq.

16It may be interesting to note that, in Kauer, the applicant had in fact stopped working and had become unemployed in Austria some time before she gave birth to her children. In my view, what led the Court to conclude that MsKauer nevertheless remained subject to the legislation of that Member State during the periods in which she raised her children in Belgium was that she did not settle in that Member State until after the birth of her youngest child.

17The judgment in Reichel-Albertcame after the entry into force of Article44(2) of Regulation No987/2009, but the Court found that it was the previous instrument on the coordination of social security systems, namely Regulation No1408/71, rather than Regulations No883/2004 and No987/2009, that applied ratione temporis to the facts at issue.

18See Reichel-Albert, paragraph35.

19Ibid.

20Ibid., paragraphs40 to 42.

21As the Court recalled in Reichel-Albert(in paragraphs25 and 26), by Article97 of Regulation No987/2009, the European Union legislature fixed the entry into force of that regulation at 1May 2010. In the context of the main proceedings, the decision challenged by the Appellant was taken by the PVA on 29December 2017, well after the entry into force of Regulation No987/2009. That same regulation was already applicable when the Appellant applied to the PVA for an old-age pension.

22See, for example, Reichel-Albert, paragraphs27 and 28.

23The PVA explained at the hearing that, pursuant to Paragraph231(3) of the ASVG, child-raising periods begin to be taken into account starting from the first full civil month after the date at which the conditions laid down in Paragraph227a or 228a of the legislation in question are met. It appears from the case file that the Appellant gave birth to her first child in December 1987.

24Certainly, that much is clear from the judgments in Elsen(paragraphs33 to 36), Kauer(paragraphs43 and 44) and Reichel-Albert (paragraphs38 to 44).

25In comparison to the situations which would have been covered under the ‘sufficiently close link’ test which the Court relied upon in the context of the application of Regulation No1408/71.

26In that respect, I fully share the Commission’s view that Regulations No883/2004 and No987/2009 were adopted in order to set out specific rules of competence to further the freedom of movement of EU citizens and not to restrict it. That is certainly true and, in fact, the Court has consistently pointed out that it is in order to ensure the free movement of employed and self-employed persons within the European Union, while upholding the principle of equal treatment of those persons under the various measures of national legislation, that Regulation No1408/71, and then Regulation No883/2004, have established a system of coordination concerning, inter alia, the determination of the legislation applicable to them (see judgment of 23January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph37 and the case-law cited)).

27Of course, that is not to say that the conditions pursuant to which a Member State’s legislation becomes applicable to a particular social security cross-border case can, in and of themselves, impose undue restrictions on the freedom of movement of EU citizens. Nevertheless, one must not lose sight of the fact that Article21TFEU is based on the logic that, as its first paragraph makes clear, ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ (my emphasis). While that provision is not an open invitation for the legislature to interfere with the basic tenets of that right, it is rather clear to me that, in the area of social security, the legislature may very well, among other things, redefine the legal criteria pursuant to which a person who has exercised his or her freedom of movement is entitled to claim that the law of his or her Member State of origin remains applicable to him or her.

28See recitals12 and 14 of Regulation No987/2009. See also recital13 of the Position of the European Parliament adopted at first reading on 9July 2008 with a view to the adoption of the regulation (P6_TC1-COD(2006)0006).

29In the initial Commission Proposal, Article44 seemed to be departing even more from the judicial solution in Elsen and Kauer, as it was drafted in the following terms: ‘without prejudice to the competence of the Member State determined in accordance with the provisions of TitleII of Regulation (EC) No883/2004, the institution of the Member State in which the beneficiary of the pension has resided for the longest period during the twelve months following the birth of the child must take into account the child’s periods of education in another Member State, provided that the legislation of another Member State is not applicable to the person concerned through the pursuit of an activity as an employed or self-employed person’ (my emphasis) (see Proposal for a Regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No883/2004 on the coordination of social security systems (COM(2006)16final).

30See, for example, the reasoning adopted by the Court in its judgment of 11April 2013, Jeltes and Others (C‑443/11, EU:C:2013:224, paragraph32). That case concerned the interpretation of Article65 of Regulation No883/2004 and the question of whether that provision was intended to reflect or depart from the Court’s case-law on the previously applicable provision (namely, Article71 of Regulation No1408/71).

31For a general explanation of the conflict-of-law rules in Regulations No883/2004 and No987/2009, see Lhernould, J.P., ‘New rules on conflicts: regulations 883/2004 and 987/2009’, ERA Forum, Vol.12, 2011, pp.25 to 38.

32See Jorens, Y., and Van Overmeiren, F., ‘General Principles of Coordination in Regulation 883/2004’, European Journal of Social Security, Vol.11, 2009, p.66.

33See, in that sense, judgment of 5March 2020, Pensionsversicherungsanstalt (Rehabilitation benefit) (C‑135/19, EU:C:2020:177, paragraph46). It has been argued that the coordination system in TitleII of Regulation No883/2004 has an exclusive effect since no legislation can be applicable other than the one indicated therein. In that regard, see Jorens, Y., and Van Overmeiren, F., ‘General Principles of Coordination in Regulation 883/2004’, European Journal of Social Security, Vol.11, 2009, p.72.

34See judgment of 23January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph45, and the case-law cited).

35See recital1 of Regulation No883/2004. The system of conflict rules established therein has the effect of divesting the legislature of each Member State only of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (see judgment of 23January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph38 and the case-law cited)). In accordance with Article48TFEU, it otherwise leaves intact the competence of the Member States in this area, provided that the latter act in compliance with EU law, and in particular in accordance with the purpose of those regulations and the TFEU provisions relating to the free movement of persons.

36See, similarly, Opinion of Advocate General Jääskinen in Reichel-Albert (C‑522/10, EU:C:2012:114, points43, 45 and 46).

37OJ 1994 C241, p.9, and OJ 1995L1, p.1.

38See Kauer, paragraph45. I recall that, in that case, the Court concluded that the national legislation at issue did introduce a difference in treatment because it made the taking into account of child-raising periods spent in another Member State (Belgium) subject to receipt of cash maternity allowance or equivalent allowances under federal Austrian legislation. As Advocate General Sharpston argued in another case, the Court was implicitly prepared to regard MsKauer as having exercised EU rights to free movement, even though the ‘movement’ in question took place before Austria’s accession to the European Union (see Opinion in Wieland and Rothwangl (C‑465/14, EU:C:2016:77, points50 and 51)).

39See, by analogy, judgment of 30November 2000, Österreichischer Gewerkschaftsbund(C‑195/98, EU:C:2000:655, paragraphs53 and 54). In his Opinion in that case (EU:C:2000:50, point147), Advocate General Jacobs observed, in my view rightfully, that a different finding would put migrant workers who want to work in a ‘new Member State’ or to leave that State in order to work in an ‘old Member State’ at an illogical disadvantage compared to workers moving within the area composed of the ‘old Member States’.

40See, for example, judgments of 16May 1979, Tomadini (84/78, EU:C:1979:129, paragraph21), and of 6October 2015, Commission v Andersen (C‑303/13P, EU:C:2015:647, paragraph49 and the case-law cited).

41See judgment of 6October 2015, Commission v Andersen (C‑303/13P, EU:C:2015:647, paragraph50). See also the summary of that case-law by Advocate General Bobek in his Opinion in E.B. (C‑258/17, EU:C:2018:663, point47). I note, in passing, that, in point48 of his Opinion, he found that the same approach is also reflected in the context of an accession of a new Member State to the European Union, with regard to the national application of (new) EU rules: past facts (that is, facts pre-dating accession) may be taken into account if they are relevant and need to be (freshly) assessed in the process of the application of the new law(s) post-accession.

42On the other hand, Article87(5) of Regulation No883/2004 provides that ‘the rights of a person to whom a pension was provided prior to the date of application of this Regulation in a Member State may, at the request of the person concerned, be reviewed, taking into account this Regulation’ (my emphasis).

43See Reichel-Albert, paragraphs35 and 45, as well as the operative part of the judgment.

44I find that argument to be more convincing than the one defended by the Spanish Government. According to that government, the distinguishing factor between Reichel-Albertand the present case is that, unlike the Appellant in the main proceedings, MsReichel-Albert continued to receive unemployment benefits after she stopped working in Germany. I do not think that that fact alone ought to make a difference in how the two situations relate to one another. It is true that, in Reichel-Albert, the applicant was unemployed as of 30June 1980 and drew unemployment benefit from Germany until October 1980, whereas she settled in Belgium in July 1980 (while she was still receiving that benefit). Nonetheless, that does not change the fact that she did not start raising her family until 25May 1981, several months after she had stopped receiving that benefit.

45C‑522/10, EU:C:2012:114.

46See point67 of that Opinion.