Overview of recent cases before the Court of Justice of the European Union (October−December 2017)
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| DOI | 10.1177/1388262718760907 |
| Subject Matter | Commentaries |
EJSS
Commentary
European Journal of Social Security
2018, Vol. 20(1) 49–55
Overview of recent cases
ª The Author(s) 2018
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before the Court of Justice
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DOI: 10.1177/1388262718760907
of the European Union
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(October December 2017)
Anne Pieter van der Mei
Maastricht Centre for European Law, University of Maastricht, Maastricht, The Netherlands
In the relatively short reporting period October
December 2017, the Court of Justice delivered
four rulings of particular significance for social security and social benefit systems. The only case
that directly concerns coordination of social security as regulated by Regulations 1408/71 and 883/
2004 is Zaniewicz-Dybeck,1 in which the Court was, once again, asked to clarify the rules for
calculating entitlement to old-age pensions. The remaining three cases involve questions regarding
the right to retain the status of being self-employed for purposes of lawful residence and, indirectly,
for access to social benefits (Gusa);2 the compatibility with EU free movement law of ‘home
coming requirements’ for entitlement to portable bursaries (Simma Federspiel);3 and the rights of
‘vertical’ part-time workers to unemployment benefits (Espadas Recio).4
Calculation of Pensions: Zaniewicz-Dybeck
Regulation 1408/71 and Regulation 883/2004 contain quite detailed rules for the calculation of
old-age pensions. These can be sketched as follows. The rules rest on aggregation. Where a
Member State that makes the acquisition, retention or recovery of the right to benefits subject
to the completion of periods of insurance, the competent institution of that Member State must take
account of the periods of insurance completed under the legislation of any other Member State as if
they had been completed under the legislation which it administers (Art. 45 Reg. 1408/71).5
Specifically, that institution must do two things. First, it must calculate the so-called theoretical
amount of the benefit to which the person concerned is entitled as if all the periods of work which
1. Boguslawa Zaniewicz-Dybeck v Pensionsmyndigheten, Case C-189/16, ECLI: EU: C:2017:946.
2. Florea Gusa v Minister for Social Protection and Others, Case C-442/16, ECLI: EU: C:2017:1004.
3. Sabine Simma Federspiel v Provincia autonoma di Bolzano and Equitalia Nord SpA, Case C-419/16, ECLI: EU:
C:2017:997.
4. Mar´ıa Begon˜a Espadas Recio v Servicio P ´
ublico de Empleo Estatal (SPEE), Case C-98/15, ECLI: EU: C:2017:833.
5. Art. 50 Reg. 883/2004.
Corresponding author:
Anne-Pieter van der Mei, Maastricht Centre for European Law, University of Maastricht, 6200 Maastricht, the Netherlands.
E-mail: ap.vandermei@maastrichtuniversity.nl
50
European Journal of Social Security 20(1)
that person completed in various Member States had been completed in their ‘own’ Member State
(Art. 46(2)(a) Reg. 1408/71).6 Second, and following on from that, the institution is required to
apply a pro rata method of calculation: it must determine the actual amount of the benefit by
establishing the ratio of the periods completed under its own legislation to the total duration
completed in all Member States (Art. 46(2)(b) Reg. 1408/71).7 The person concerned will thus
receive a partial pension, which may be supplemented by pension entitlement(s) in other Member
States. Additionally, where benefits are calculated on the basis of the amount of earnings, contri-
butions or increases, the competent institution of the State must determine the earnings, contribu-
tions or increases to be taken into account in respect of the periods of insurance or residence
completed under the legislation of other Member States on the basis of the average earnings,
contributions or increases recorded in respect of the periods of insurance completed under the
legislation which it administers (Art. 47(1)(d) Reg. 1408/71).8 Where the legislation of a Member
State includes a specific guarantee that seeks to ensure that recipients of pensions ought to be
entitled to a minimum income, that Member State shall pay the person concerned a supplement
equal to the difference between the benefits payable to him or her and calculated in accordance
with the above described rules and the amount of the minimum benefit (Art. 50 Reg. 1408/71).9
In Zaniewicz-Dybeck the Court was essentially asked whether the pro rata calculation method
also applies to ‘minimum benefits’ falling under Article 50 of Regulation 1408/71. The case
concerned Mrs Zaniewicz-Dybeck, a Polish national, who had first worked in Poland for 19 years
and, thereafter, had lived in Sweden for 24 years and worked there for 23 years. She applied in
Sweden for a so-called ‘guaranteed pension’, which was meant to provide basic protection for
persons with little or no income. This pension was a tax-funded and residence-based benefit. The
amount payable depended, inter alia, on the amount the person concerned received under other
retirement pensions. Mrs Zaniewicz-Dybeck’s application for the guaranteed pension was rejected
on the ground that the amount of the other pensions she was entitled to was higher than the amount
fixed for...
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