Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 1 March 2012 (1)

Case C-522/10

Doris Reichel-Albert

v

Deutsche Rentenversicherung Nordbayern

(Reference for a preliminary ruling from the Sozialgericht Würzburg (Germany))

(Social security for migrant workers - Coordination of social security systems - Article 44(2) of Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 - Examination of entitlement to an old-age pension - Taking into account of child-raising periods - Periods completed in another Member State - Conditions - Article 5 of Regulation (EC) No 883/2004 - Principle of equal treatment of facts)

I - Introduction

1. The Sozialgericht (Social Court) Würzburg (Germany) has referred to the Court questions regarding the interpretation of Article 44(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (2) in a dispute between Mrs Reichel-Albert, a German national who gave birth to and raised her children in Belgium, and the institution responsible for the statutory old-age insurance scheme in Germany, namely the Deutsche Rentenversicherung Nordbayern ('DRN').

2. The questions referred for a preliminary ruling relate more specifically to the conditions under which, in the calculation of a future old-age pension, child-raising periods completed in one Member State must be taken into account by another Member State within whose competence a parent no longer falls pursuant to the conflict rules in Title II 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. (3) It is worth making the point here that, under German legislation, such periods are taken into account only if, during the raising of the child or directly before the birth, the person concerned was pursuing an activity as an employed or self-employed person as a period of compulsory contribution.

3. The questions referred for a preliminary ruling are without precedent, as they are the first concerning the interpretation of the provisions of Regulation No 987/2009, specifically Article 44 thereof. There were no provisions with content equivalent to that of Article 44 in operative part of the previous coordinating legislation, namely Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (4) and its implementing regulation, Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71. (5) The drafting history of Article 44 of Regulation No 987/2009 shows that it was introduced by the European Union legislature in response to the case-law of the Court arising from the judgments in Elsen (6) and Kauer, (7) the scope of which it seemed necessary to define. (8)

4. I would point out at the outset that, in the light of the facts of the dispute in the main proceedings, the Court has identified an issue relating to the temporal application of the provisions of European Union law referred to by the order for reference. (9) After all, the question arises as to whether the main proceedings and the facts at issue should be governed by the current legislation coordinating national social security systems contained in Regulations Nos 883/2004 and 987/2009 or by the earlier legislation contained in Regulations Nos 1408/71 and 574/72.

5. If the Court's ruling on that first issue were that Article 44 of Regulation No 987/2009 is applicable, it would then have to be interpreted in such a way as to make it possible to assess whether the national provisions cited in the order for reference are consistent with it. However, to do this, it is first necessary to determine whether it is indeed the German legislation which should govern the situation of Mrs Reichel-Albert under the relevant conflict-of-law rules and whether she does indeed meet all the substantive conditions laid down by Article 44 of Regulation No 987/2009.

6. I shall set out various scenarios in this Opinion, one by way of principal proposal and others in the alternative, in the event that the Court does not concur with my first suggested reply.

II - Legal context

A - European Union law

1. Regulation No 883/2004

7. The purpose of Regulation No 883/2004 is to coordinate national social security systems. It replaced, as of 1 May 2010, (10) Regulation No 1408/71, which had been amended many times. It seeks to make the previous legislation more succinct and transparent and to take account of the case-law of the Court in this sphere. (11)

8. Article 5 of the regulation, entitled 'Equal treatment of benefits, income, facts or events', provides:

'Unless otherwise provided for by this Regulation ...:

...

(b) where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.'

9. Article 11(1) and (3) of Regulation No 883/2004, which deal with 'General rules' and appear in Title II concerning the 'Determination of the legislation applicable', are worded as follows:

'1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

...

3. Subject to Articles 12 to 16:

(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

...

(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.'

10. Article 87 of the regulation, which lays down 'Transitional provisions', states:

'1. No rights shall be acquired pursuant to this Regulation for the period before its date of application.

2. Any period of insurance and, where appropriate, any period of employment, self-employment or residence completed under the legislation of a Member State prior to the date of application of this Regulation in the Member State concerned shall be taken into consideration for the determination of rights acquired under this Regulation.

3. Subject to paragraph 1, a right shall be acquired under this Regulation even if it relates to a contingency arising before its date of application in the Member State concerned.

...

8. If, as a result of this Regulation, a person is subject to the legislation of a Member State other than the one determined in accordance with Title II of Regulation (EEC) No 1408/71, that legislation shall continue to apply as long as the relevant situation remains unchanged, unless the person concerned requests that he be subject to the legislation applicable under this Regulation. The request shall be submitted within three months after the date of application of this Regulation to the competent institution of the Member State whose legislation is applicable under this Regulation if the person concerned is to be subject to the legislation of that Member State as of the date of application of this Regulation. If the request is made after the time-limit indicated, the changeover shall take place on the first day of the following month. ...'

2. Regulation No 987/2009

11. Regulation No 987/2009 lays down the procedure for implementing the basic regulation, Regulation No 883/2004.

12. Article 44 of Regulation No 987/2009 concerns the 'Taking into account of child-raising periods' and reads as follows:

'1. For the purposes of this Article, "child-raising period" refers to any period which is credited under the pension legislation of a Member State or which provides a supplement to a pension explicitly for the reason that a person has raised a child, irrespective of the method used to calculate those periods and whether they accrue during the time of child-raising or are acknowledged retroactively.

2. Where, under the legislation of the Member State which is competent under Title II of the basic Regulation, no child-raising period is taken into account, the institution of the Member State whose legislation, according to Title II of the basic Regulation, was applicable to the person concerned on the grounds that he or she was pursuing an activity as an employed or self-employed person at the date when, under that legislation, the child-raising period started to be taken into account for the child concerned, shall remain responsible for taking into account that period as a child-raising period under its own legislation, as if such child-raising took place in its own territory. ...'

13. Article 93 of Regulation No 987/2009, entitled 'Transitional provisions', reads:

'Article 87 of the basic Regulation shall apply to the situations covered by the implementing Regulation.'

B - National law

14. Paragraph 56 of Book VI of the German Social Security Code (Sozialgesetzbuch; 'SGB VI'), entitled 'Child-rearing periods', provides:

'(1) A child-rearing period shall be the period spent rearing a child during the first three years of its life. A period spent rearing a child shall be credited to one of the parents of the child (Paragraph 56(1), first sentence, point 3, and Paragraph 56(3), points 2 and 3, of SGB I) if:

1. the period spent rearing the child is to be attributed to that parent;

2. the child-rearing took place in the Federal Republic of Germany or can be treated as having taken place there; and

3. that parent is not barred from being credited with that period.

...

(3) Rearing shall be deemed to have taken place in the Federal Republic of Germany where the child-rearing parent has habitually resided there with the child. A period of child-rearing shall be treated as child-rearing in the Federal Republic of Germany where the child-rearing parent has habitually resided abroad with his or her child and during the period devoted to child-rearing or immediately before the birth of the child has completed periods of compulsory contribution by virtue of an activity carried on there as an employed or self-employed person. Where spouses or partners are resident abroad together, the same shall also apply where the spouse or partner of the child-rearing parent paid such compulsory contributions or did not do so only because he or she was one of the persons referred to in Paragraph 5(1) and (4) or was exempt from compulsory insurance.

...

(5) The period of child-rearing shall begin at the end of the month in which the child is born and shall end 36 calendar months later. ...'

15. Paragraph 57 of SGB VI, which concerns 'Periods to be taken into consideration', reads as follows:

'The period devoted to rearing a child until the end of the child's 10th year shall constitute a period to be taken into consideration for one of the parents if the conditions for attribution of a period of child-rearing are also fulfilled during that period. ...'

16. Paragraph 249(1) of SGB VI, which concerns 'Contribution periods relating to child-rearing', provides that '[f]or children born before 1 January 1992, the child-rearing period shall end 12 calendar months after the end of the month in which the child was born'.

III - The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

17. Mrs Reichel-Albert pursued an activity as an employed person in Germany and lived there until 30 June 1980. She then received unemployment benefit paid by that Member State until 10 October 1980.

18. From 1 July 1980 to 30 June 1986, she was resident in Belgium with her spouse, who pursued an activity as an employed person there. The couple have two children, who were born in Belgium on 25 May 1981 and 29 October 1984 respectively.

19. From 1 January 1984, she made voluntary contributions to the statutory old-age insurance scheme in Germany.

20. On 1 July 1986, Mrs Reichel-Albert, her spouse and their children were officially declared to be resident in Germany.

21. By decisions of 12 August 2008 and 28 October 2008, the DRN rejected Mrs Reichel-Albert's requests to have the child-raising periods and 'periods to be taken into consideration' completed during her stay in Belgium taken into account and credited, on the ground that, during that period, the child-raising took place abroad. Only periods after 1 July 1986, the date on which the family in question was officially resident again in Germany, were credited as periods to be taken into consideration for child-raising purposes. On 1 December 2008, Mrs Reichel-Albert lodged a complaint, which the DRN rejected by decision of 29 January 2009.

22. The decisions of the DRN state that, during her stay in Belgium, the required link with working life in Germany was maintained neither through Mrs Reichel-Albert's own employment nor through her spouse, as more than one full month elapsed between the end of Mrs Reichel-Albert's activity as an employed or self-employed person - the status accorded to her period of unemployment - and the beginning of the child-raising period.

23. By application of 13 February 2009, Mrs Reichel-Albert brought an action before the Sozialgericht Würzburg seeking to have the decision on her complaint given on 29 January 2009 annulled and the DRN ordered to take into account the period from 25 May 1981 to 30 June 1986 in respect of her first child and the period from 29 October 1984 to 30 June 1986 in respect of her second. In support of her action, she made reference to the judgments in Elsen and Kauer and asserted that she had not, at that time, completely left Germany for Belgium.

24. The parties did not act on the referring court's proposal that they agree to credit the child-raising periods occurring after 1 January 1984, the date from which Mrs Reichel-Albert voluntarily contributed to the statutory old-age insurance scheme in Germany.

25. The Sozialgericht Würzburg considered that a combined reading of Paragraph 56(3) of SGB VI and Article 44(2) of Regulation No 987/2009 would not permit Mrs Reichel-Albert to have the child-raising periods at issue credited, either in Germany or in Belgium, in so far as she was not pursuing any activity - as an employed person or otherwise - on the date when those periods had begun to be taken into account for each of the children in question, and that she would thus be penalised for exercising her right under Article 21 TFEU to move and reside freely within the European Union. In that context, the Sozialgericht Würzburg decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1) Is Article 44(2) of Regulation [No 987/2009] to be interpreted as precluding an arrangement in one Member State whereby child-raising periods completed in another Member State of the European Union are to be recognised as such periods completed in the former Member State only if the child-raising parent was habitually resident abroad with the child and paid compulsory contributions during the raising or immediately before the birth of the child because of employment or self-employment there or, where spouses or partners were resident abroad together, if the spouse or partner of the child-raising parent paid such compulsory contributions or did not do so solely because he or she was a person as referred to in Paragraph 5(1) and (4) of SGB VI or was exempted from compulsory insurance pursuant to Paragraph 6 of SGB VI (Paragraphs 56(3), second and third sentences; 57; 249 SGB VI)?

(2) Is Article 44(2) of Regulation [No 987/2009] to be interpreted, despite its wording, as meaning that, in exceptional cases, child-raising periods must be taken into account even where there has been no employment or self-employment if such a period would not otherwise be taken into account under the appropriate legislation either in the competent Member State or in another Member State in which the person was habitually resident while raising the children?'

26. The reference for a preliminary ruling made by the Sozialgericht Würzburg was lodged at the Court Registry on 9 November 2010.

27. Written observations were provided to the Court by Mrs Reichel-Albert, the claimant in the main proceedings, and the DRN, the defendant in the main proceedings, as well as the Federal Republic of Germany, the Republic of Austria and the European Commission.

28. By letter sent on 27 October 2011, the Court put a question to be answered in writing for the purposes of the hearing:

'The parties to the main proceedings and other interested parties are invited to submit their observations on the applicability of Article 44 of Regulation [No 987/2009] to a situation such as that at issue in the main proceedings concerning a request that account be taken of child-raising periods completed while Regulation No 1408/71 was still in force.

It should be noted in this respect that the Federal Republic of Germany submitted in paragraph 21 of its observations that the provisions of Regulation No 883/2004 - which entered into force on the same date as Regulation No 987/2009 - were not applicable during the period that Mrs Reichel-Albert spent raising her children.'

29. Mrs Reichel-Albert, the DRN, the German Government and the Commission submitted observations in response to the Court's question.

30. Only the German Government and the Commission were represented at the hearing, which took place on 12 January 2012.

IV - Analysis

A - Introductory remarks

31. It should be noted that the relevant German legislation provides for two mechanisms for taking child-raising periods into account under the statutory old-age pension scheme:

- under the first, child-raising periods ('Kindererziehungszeiten') are taken into account as periods of obligatory contribution to the statutory old-age insurance scheme, thereby allowing those periods to count towards the calculation of the qualifying period required in order to receive an old-age pension;

- under the second, periods to be taken into consideration ('Berücksichtigungszeiten') do not give rise to any pension rights, but are used in the calculation of certain qualifying periods, preserve the protection afforded to persons with reduced earning capacity and have a positive impact on the value attributed to periods without contributions.

32. I should say at the outset that I shall not be slavishly following the approach naturally suggested by the two questions referred to the Court for a preliminary ruling when providing answers to them. It seems to me that the referring court has omitted to address an issue connected with the applicability of Regulation No 987/2009 which, in my view, needs to be resolved before attempting to consider the substance of the case.

B - The applicability ratione temporis of Regulation No 987/2009

33. Two successive questions arise in this regard. It is first necessary to determine whether the temporal scope of the regulation is capable of encompassing the main proceedings, and if so, it is then necessary to consider what facts are capable of giving rise to the social security advantage at issue, that is to say, the taking into account of child-raising periods within the meaning of Article 44 of Regulation No 987/2009. (12)

34. I would point out that the Austrian Government observed that the two questions referred to the Court make mention only of Article 44 of Regulation No 987/2009, while the main proceedings arose before that regulation entered into force on 1 May 2010. After all, Mrs Reichel-Albert brought her action against the DRN's decisions refusing her requests, the latest being dated 29 January 2009, on 13 February 2009.

35. For its part, the German Government pointed out that the provisions of Regulation No 883/2004, to which Article 44 of Regulation No 987/2009 refers, did not apply to the period that Mrs Reichel-Albert spent raising her children, the period at issue being from 1981 to 1986, since the basic regulation, Regulation No 883/2004, did not become applicable until 1 May 2010, following the entry into force of its implementing regulation.

36. Case-law regularly refers to the clear separation of functions between the Court and national courts making a reference for a preliminary ruling. That separation of functions precludes the Court from ruling on the practical application of European Union law in a specific case. (13) However, where it emerges that a provision of European Union law was not applicable at the time of the events to which the dispute in the main proceedings pertains, there is no need to respond to a question concerning the interpretation of that provision. (14)

37. In principle, the new legislation introduced by Regulations Nos 883/2004 and 987/2009 is intended to apply immediately as from 1 May 2010, in repeal of Regulations Nos 1408/71 and 574/72, and to do so prospectively and not retroactively. This follows from Article 87 of Regulation No 883/2004 (15) and Article 93 of Regulation No 987/2009, which makes reference to that first article.

38. Despite the fact that Regulation No 883/2004 is now applicable, certain situations continue to be governed by Regulation No 1408/71 under special transitional provisions such as those set out in Article 87(8) of Regulation No 883/2004 concerning the conflict-of-law rules contained in Title II and those laid down in Article 94 of Regulation No 987/2009 concerning the award of pensions. (16) The purpose of those transitional provisions is to allow some account to be taken of past events which will produce long-term effects, bearing in mind that, because the rights attached to benefits such as old-age pensions are deferred, a number of years or even decades may separate the period when the events giving rise to a pension take place from the period when the rights relating to them are actually awarded. These are to some extent 'pending rights', a well-known concept in German welfare legislation ('Anwartschaftsrecht').

39. It follows from Article 87(3) of Regulation No 883/2004 that, if the contingency giving rise to welfare benefits arises during the period of application of that regulation, a right to receive those benefits is also acquired in respect of events occurring before it became applicable. That principle applies by extension to Regulation No 987/2009, pursuant to Article 93 thereof. This also follows from the Court's settled case-law to the effect that the principle of non-retroactivity does not preclude a new rule from applying immediately to the future effects of an existing situation which arose under the old rule. (17) This would mean, in practice, that Mrs Reichel-Albert could have relied on the provisions of Regulation No 987/2009 as from 1 May 2010 in order to request that her periods of child-raising be taken into account in the calculation of her old-age pension rights. If that reasoning were followed, Regulation No 987/2009 would not have a retroactive effect; rather, those events, although having occurred before that regulation entered into force, would be taken into account in the assessment of the future old-age pension rights of the person concerned. (18)

40. This notwithstanding, it is my view that, since Regulations Nos 883/2004 and 987/2009 have only been applicable since 1 May 2010, that is to say, a point in time which not only post-dates the events giving rise to the social advantage being sought but also comes after the dates on which the adverse decisions by the DRN were imposed on Mrs Reichel-Albert and after the date on which she brought an action against those decisions before the referring court, those regulations should not therefore be applicable ratione temporis to the dispute in the main proceedings. (19)

41. If Regulation No 987/2009 is not applicable, the questions referred for a preliminary ruling concerning the interpretation of Article 44 of that regulation seem to me to be hypothetical, since they will not allow the referring court to resolve the dispute before it. I therefore consider that there is no need for the Court to respond to them.

42. I intend, nevertheless, to provide the basis for a response in the alternative, in order to cater for the eventuality that the Court does not concur with my analysis of this preliminary issue and considers that the situation at issue falls within the scope ratione temporis of Regulation No 987/2009.

C - The application or otherwise of Article 44 of Regulation No 987/2009

1. Guiding principles of interpretation

43. It is common ground that Regulations Nos 883/2004 and 987/2009 (20) have as their objective not to harmonise or even to align but merely to coordinate the social security schemes adopted by the Member States, and therefore leave intact the competence of the Member States in this area, provided, however, that the latter act in compliance with European Union law, in particular in accordance with the purpose of those regulations and the provisions of the EC Treaty relating to the free movement of persons. (21)

44. One of the founding principles of the system coordinating national social security schemes is the principle that the legislation of a single Member State should be applicable, as defined in Article 11(1) of Regulation No 883/2004. The purpose of this is to avoid the problems that result from the interaction between the laws of the Member States, be it positive conflicts, where multiple laws are applicable to a given situation, (22) or negative conflicts, where no law is applicable.

45. Moreover, one of the cardinal principles that must inform the interpretation of Regulations Nos 883/2004 and 987/2009 is that, as the Court has consistently held, in the area of social security, insured persons may not claim that their move to another Member State should be without impact on the type or level of benefits for which they were eligible in their Member State of origin. (23) The fact that the effect of exercising the freedom of movement may not be neutral in this sphere, in that it may to varying degrees be advantageous or even disadvantageous, depending on the circumstances, is a direct result of the fact that the difference between the laws of the Member States has been maintained.

46. I would add that Regulations Nos 883/2004 and 987/2009 cannot be interpreted in such a way as to take account of the economic outcome that would follow, in the dispute in the main proceedings, from applying the substantive law designated by a conflict-of-law rule, unless such an examination of the practical impact is envisaged by one of those regulations, in particular by a provision allowing the persons concerned to choose the law applicable to their situation. The law designated as being applicable under those regulations may have a beneficial effect on the person concerned in one set of circumstances but a negative effect on persons whose circumstances are different.

47. In accordance with the approach previously adopted by the Court, particularly in Kauer, the rationale to be applied, which comprises two successive but distinct stages, is as follows. The first stage is to apply the provisions of European Union law relating to the determination of the competent Member State and the legislation applicable, without taking into consideration the outcome of applying the legislation of the various Member States in question. The second stage of the analysis is to examine whether the conditions governing the award of a benefit or advantage, such as the taking into account of a child-raising period, are consistent with European Union law, more specifically the provisions of Regulations Nos 883/2004 and 987/2009 and/or the fundamental freedoms. It is not until the latter stage that the application of Article 5 of Regulation No 883/2004, which establishes the principle of the equal treatment of benefits, income, facts or events, becomes relevant.

48. It follows that, in the present case, the question of whether or not the substance of the German legislation is consistent with European Union law, in particular the regulations concerned, need not be addressed until a later stage, that is to say, after the applicable law has been determined.

2. Determining the competent Member State and the applicable law

49. I would draw attention at the outset to the lack of clarity, not to say consistency, apparent in the order for reference, particularly when the wording of the second question is compared with the reasons given for referring it. After all, the referring court does not specifically indicate whether, in its view, it is Belgian or German legislation that should be applicable, since it starts by saying that, in its opinion, Belgian legislation is applicable under Title II of Regulation No 883/2004, but then bases its second question on the assumption that the Kingdom of Belgium is not the competent Member State under those same provisions.

50. In any event, these are the only two possibilities as regards the applicable legislation, and these are alternatives pursuant to the principle that the law of a single Member State must apply, laid down in Article 11(1) of Regulation No 883/2004.

51. Article 44(2) of Regulation No 987/2009, an interpretation of which is sought in this case, makes reference, as regards the taking into account of child-raising periods, to 'the legislation of the Member State which is competent under Title II of the basic Regulation', that is to say, to Article 11 et seq. of Regulation No 883/2004. The reference which that article thus makes to the conflict-of-law rules contained in Regulation No 883/2004 means that the first thing that must be determined, in the present case, is which legislation, Belgian or German, is to govern the taking into account of the child-raising periods completed in Belgium by Mrs Reichel-Albert, given that she never worked there and had ceased working in Germany several months earlier. (24)

52. I am of the view that, pursuant to Article 11(3)(e) of Regulation No 883/2004, which provides that an inactive person is to be subject to the legislation of his/her State of residence, without prejudice to other provisions of that regulation which would be more favourable to the person concerned, that regulation requires that Belgian legislation should govern the situation of Mrs Reichel-Albert, for the reasons that I shall set out below.

53. However, it should be noted that Article 87(8) of Regulation No 883/2004, which applies by extension to situations governed by Regulation No 987/2009, (25) contains specific transitional provisions with respect to the conflict-of-law rules contained in Title II of the first of those regulations. That article provides for a transitional period during which any person subject to the legislation of a Member State other than the one that was determined in accordance with Title II of Regulation No 1408/71 is to continue to be subject to that legislation as long as the relevant situation remains unchanged. That principle must be applied to Mrs Reichel-Albert, since she did not submit a request for a derogation, within the prescribed time-limit of three months from 1 May 2010, to the competent institution of the Member State whose legislation is applicable under Regulation No 883/2004. Consequently, her situation is, in my view, governed by the law of the Member State determined in accordance with Title II of Regulation No 1408/71.

54. This notwithstanding, it seems to me that the implementation of the conflict-of-law rules contained in the new basic regulation would lead to the same legislation being designated, namely that of the State where the person who has stopped working was resident at the time of the facts of the case, since the wording of the two provisions which I consider to be relevant, Article 13(2)(f) of Regulation No 1408/71 (26) and Article 11(3)(e) of Regulation No 883/2004 respectively, is essentially the same.

55. The applicability of Article 13(2)(f) of Regulation No 1408/71 in this case is certainly open to question, for reasons of time. After all, subparagraph (f) was not introduced until 1991, (27) while the child-raising periods at issue ended before then, namely on 30 June 1986, the date on which Mrs Reichel-Albert and her family returned to Germany. Paragraph 31 of the aforementioned judgment in Kauer, read in conjunction with the stance adopted by Advocate General Jacobs in that case, (28) might point to the need to apply the version of Regulation No 1408/71 which was in force at the time when the children concerned were raised.

56. Nevertheless, I consider that, by using the form of words '[e]ven if it were necessary to take account of Article 13(2)(f), inserted into Regulation No 1408/71 by Regulation No 2195/91, that is to say many years after completion by Mrs Kauer of child-raising periods in Belgium', bearing in mind that the children in question were born between 1966 and 1969, the Court highlighted the long interval, of some 20 years, which separated the relevant child-raising periods in that case and the introduction of the new conflict-of-law rule. By contrast, in this case, as in Elsen, the dates of the children's births, in 1981 and 1984, are closer to the amendment of Regulation No 1408/71. In Elsen, the Court did not formally rule out the relevance of Article 13(2)(f) of Regulation No 1408/71, but emphasised the fact that the person concerned remained covered by the legislation of the State of employment by way of justification for setting aside that special provision; it had, moreover, employed the same justification for doing so in Kauer in my opinion. It should be noted that the conflict-of-law rule contained in subparagraph (f) is indeed subsidiary, in that it is to be implemented, for the purpose of designating the legislation of the State of residence, only where no other legislation is applicable, in particular that of the State of employment, which applies in principle. The purpose of this arrangement, prompted by the need to prevent the legal void that would result from a negative conflict of laws from leaving the person concerned without social security protection, is to ensure that an insured person who has exercised his freedom of movement within the European Union is covered by the social security scheme of one Member State in the absence of that of another. (29)

57. Article 13(2)(f) of Regulation No 1408/71, in the version, therefore, that was in force in 1991, is, in my view, applicable ratione temporis to Mrs Reichel-Albert's situation, provided that the substantive conditions set out there are met. Mrs Reichel-Albert appears to me to be, within the meaning of that provision, a 'person to whom the legislation of a Member State [has ceased] to be applicable, without the legislation of another Member State becoming applicable to [her] in accordance with one of the rules laid down in the aforegoing subparagraphs [of Article 13] or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 [of Regulation No 1408/71]', contrary to what was the case in Elsen and, less clearly, in Kauer.

58. After all, in those two earlier cases, the persons concerned were in situations that were still governed by the legislation of the State in which they had worked at the time of the birth, and then the raising, of their children. In the case of Mrs Elsen, German legislation continued to be applicable to her as the law of the State of employment, even though she had transferred her residence to France three years before the birth of her child, because she had carried on her occupation in Germany as a frontier worker. In the case of Mrs Kauer, she had indeed stopped working in Austria long before the birth of her three children, but she remained subject to the legislation of that Member State (30) during the periods in which she did not work at all in order to raise her three children because she did not settle in Belgium until after the birth of her last child. The Court found that there was a 'close' link in Elsen (paragraph 26), and even a link that was merely 'sufficiently close' in Kauer (paragraph 32), between the child-raising periods at issue and the periods of insurance completed by virtue of the pursuit of a gainful occupation in the Member State from which the old-age pension supplement was claimed.

59. In the case of Mrs Reichel-Albert, however, there does not appear to me to be a sufficiently close link between, on the one hand, the periods of insurance which she completed in Germany prior to losing her job on 30 June 1980, Mrs Reichel-Albert having drawn unemployment benefit paid by that Member State until October 1980, and, on the other hand, the periods she spent raising her children, who were born on 25 May 1981 and 29 October 1984, bearing in mind that, since 1 July 1980, she and her husband had been settled in Belgium, where the two children were born and her husband paid contributions as an employed person. (31) Since the legislation of the Member State in which she had previously worked, the Federal Republic of Germany, was no longer applicable to her, in my opinion, at the time when she began to raise her children, the legislation of the Member State to which she had transferred her residence, the Kingdom of Belgium, takes over and, therefore, governs any award of the old-age pension supplement at issue.

60. I would point out that, in my view, it is immaterial, for the purposes of the outcome of these conflict-of-law rules, that Mrs Reichel-Albert made voluntary contributions in Germany from 1 January 1984, that is to say, prior to the birth of her second child. Since social security is an area in which the persons concerned do not have the free disposal of their rights and cannot therefore select the national scheme to which they are subject, manifestations by them of their wishes cannot have any bearing on the determination of the law applicable in this respect, (32) unless such an option is, exceptionally, provided for by the regulation. (33)

61. Consequently, I consider that, in the circumstances of the case in the main proceedings, the Kingdom of Belgium is the 'Member State which is competent under Title II of the basic Regulation' within the meaning of Article 44(2) in limine of Regulation No 987/2009.

3. The obligations resulting from Article 44 of Regulation No 987/2009

62. If the Court takes the view that Regulations Nos 883/2004 and 987/2009 are relevant for the purposes of dealing with this case, which, to my mind, they are not, consideration must also be given to the practical effect of the provisions of Article 44(2) of Regulation No 987/2009 on the decisions made by a social security institution of a Member State when presented with a situation such as that put before the DRN. I would point out that this is the first time that the Court has been called upon to interpret those provisions, which is no simple task given their somewhat complex formulation.

63. In my view, what Article 44(2) of Regulation No 987/2009 lays down is not a genuine conflict-of-law rule, since it refers in this regard to conflict-of-law rules contained in Title II of Regulation No 883/2004, but rather a rule of substance intended, as its title indicates, to make it possible to '[take] into account child-raising periods'. That provision was inserted in the new legislation coordinating national social security systems in order to reflect the case-law of the Court arising in particular from the judgments in Elsen and Kauer. The effect of Article 44 is to create a purely subsidiary competence for a Member State that is not competent under the general rules in order to allow child-raising periods to be taken into account, provided that the conditions laid down by that article are met.

64. It should be noted that the first version of the provision in question was worded as follows: (34) '[w]ithout prejudice to the competence of the Member State determined in accordance with the provisions of Title II of Regulation [No 883/2004], the institution of the Member State in which the beneficiary of the pension has resided for the longest period during the 12 months following the birth of the child must take into account the child's periods of [child-raising] 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.' That version thus laid down an obligation to take account of child-raising periods that was incumbent principally on the institution of the State of employment and, in the alternative, on the institution of the State of residence, provided that the person concerned had been resident in that State for a minimum period of time.

65. The application of the current version of Article 44(2) of Regulation No 987/2009 presupposes, first, that child-raising periods are not taken into account pursuant to the legislation of the Member State which is competent under Title II of Regulation No 883/2004. It is only in that event of those periods having produced no legal effects under the legislation applicable in principle that the social security institution of another Member State (35) may be compelled to take them into account.

66. In the case at issue, it is the legislation of the Belgian State which, in my view, should be applicable to the request for an old-age pension supplement submitted by Mrs Reichel-Albert. The documents before the Court do not clearly indicate that Belgian legislation does not confer that advantage on a person in a situation such as that of Mrs Reichel-Albert. The German and Austrian Governments and the Commission argue that Belgian law makes it possible to benefit from child-raising periods, the first two doing so in reliance on the order for reference.

67. After all, the referring court states that 'Belgian legislation provides for the taking into account of child-raising periods, so recognition in Germany of child-raising periods and periods to be taken into consideration cannot be required on the ground that the other Member State does not provide for the taking into account of such periods'. It adds that '[t]he question, in this regard, is not whether, in practice, child-raising periods would indeed be approved; all that matters is that the legislation of the Member State provides, in principle, for child-raising periods to be taken into account when assessing the situation of the individual in question as regards pension rights'. I concur with that latter analysis to the effect that it is sufficient for the Member State which is competent within the meaning of Title II of Regulation No 883/2004, in this case the Kingdom of Belgium, to provide for the possibility of taking such periods into account. The fact that, in practice, the person concerned does not benefit from that advantage because of his/her personal situation is immaterial.

68. Secondly, Article 44 of Regulation No 987/2009 also requires that the legislation of another Member State - potentially German law in this case - was applicable to the person concerned, in accordance with Title II of Regulation No 883/2004, on the ground that he or she was pursuing an activity as an employed or self-employed person at the date when the child-raising period started to be taken into account in respect of the child concerned under that legislation.

69. In the case in the main proceedings, however, during the period at issue, Mrs Reichel-Albert was no longer pursuing an activity as an employed or self-employed person with a link to Germany territory, in accordance with the conditions laid down in Article 44(2) of Regulation No 987/2009. In this regard, Mrs Reichel-Albert's situation is very different from that at issue in Elsen, in which, just before the birth of the child that she raised, the mother concerned pursued an activity as a frontier worker in the Member State from which she claimed a social security advantage intrinsically linked to that child-raising period.

70. It is only if the aforementioned two criteria are met that the institution of the Member State whose legislation was applicable as the law of the place where the person concerned worked has an obligation to take into account, within the terms of its own legislation, the child-raising period completed in the territory of the other Member State as if the child had been raised in its own territory.

71. Consequently, I consider that Article 44(2) of Regulation No 987/2009 is not applicable in the dispute in the main proceedings, not only ratione temporis but also, as the German Government and the Commission have contended, because Mrs Reichel-Albert's personal situation does not meet the conditions laid down in that provision. Article 44 of Regulation No 987/2009 cannot therefore have the effect of compelling the DRN to take into account, in accordance with German legislation as that article requires, the child-raising periods completed by Mrs Reichel-Albert in Belgian territory as if they had been completed in German territory.

72. The Commission inferred from that finding as to the inapplicability of Article 44 of Regulation No 987/2009 that the answer to the questions referred for a preliminary ruling should be given not in the light of that regulation but on the basis of primary law, more specifically Articles 21 TFEU and 45 TFEU. I do not share that view.

D - Assessment of the compatibility with European Union law of the national provisions forming the subject of the questions referred for a preliminary ruling

73. If, contrary to my view, the Court considers that German legislation should govern the social security advantage to which the dispute in the main proceedings relates, whether by virtue of a temporal extension of the application of the law of the State of employment, pursuant to Title II of Regulation No 883/2004 in conjunction with Article 44 of Regulation No 987/2009, or by analogy with the judgments in Elsen and Kauer, it will be necessary to examine whether legislative provisions of a Member State such as the provisions of SGB VI cited in the questions referred for a preliminary ruling are consistent with the requirements of European Union law.

74. Two scenarios must be contemplated in this regard, depending on the position which the Court adopts with respect to the issues addressed previously.

75. On the one hand, in the event that the Court considers that Article 44 of Regulation No 987/2009 is applicable in this case, I am of the view, like the Commission, that Article 5 of Regulation No 883/2004 would require the Federal Republic of Germany to take into account the child-raising periods that the person concerned completed in another Member State, and the contributions paid to the social security scheme of another Member State, to the same extent as if those facts or events had taken place in Germany, that is to say, by according them identical legal effects. The German Government has not denied that child-raising periods completed in another Member State are not taken into account, for the purposes of old-age pensions, in the same way with respect to children who have been raised in Germany as they are in a situation such as that of Mrs Reichel-Albert. The same is true of the contributions paid by Mrs Reichel-Albert's husband to the old-age insurance scheme in Belgium.

76. I would point out that, since Article 5 of Regulation No 883/2004 is a codification of the general principle of equal treatment which has no bearing on the determination of the competent Member State and the law applicable, (36) it is not therefore necessary to consider whether there is any incompatibility on the part of the German legislation at issue with the provisions of Articles 21 TFEU and 45 TFEU. (37)

77. On the other hand, in the event that the Court follows my proposal that it should declare Article 44 of Regulation No 987/2009 not to be relevant in this case, implementation of the case-law established in the context of the interpretation of Regulation No 1408/71 would lead to the same result. After all, the Court has developed a principle concerning the equal treatment of facts taking place in another Member State which is equivalent in substance to that now explicitly contained in Article 5 of Regulation No 883/2004. (38)

78. Consequently, whichever of these legal bases is adopted, it should, in my view, be concluded that the provisions of substantive law at issue are not compatible with the requirements of European Union law, in the event that the Court considers that German law is applicable in the dispute in the main proceedings.

V - Conclusion

79. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Sozialgericht Würzburg as follows:

- Principal proposal:

Since Article 44(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems is not applicable ratione temporis to the procedure in the dispute in the main proceedings, nor even to the circumstances of the dispute in the main proceedings, the questions referred for a preliminary ruling are devoid of purpose. There is therefore no need to reply to them on this basis.

- In the alternative, in the event that that regulation is declared to be applicable, I propose that the Court find that:

In a situation where child-raising periods are not taken into account pursuant to the legislation of the Member State which is competent under Title II of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2009 on the coordination of social security systems, Article 44(2) of Regulation No 987/2009 does not preclude the institution of another Member State whose legislation remains applicable to the person concerned on a subsidiary basis, in accordance with the conditions laid down in Article 44, from not taking the period concerned into account as a child-raising period as if the child had been raised in its own territory where the criteria for doing so as laid down in its own legislation are not met in the situation at issue. The fact that such periods are taken into account by law but are not taken into account in practice, in the light of the situation at issue, either in the Member State that is competent in principle or in the other Member State, does not in itself affect the interpretation of Article 44 of Regulation No 987/2009.

- In the further alternative, in the event that the provisions of German law forming the subject of the questions referred for a preliminary ruling must govern a situation such as that at issue in the main proceedings, in accordance with Title II of Regulation No 883/2004 and Article 44 of Regulation No 987/2009, I propose that the Court find that:

Article 5 of Regulation No 883/2004 requires a Member State which is competent under Title II of Regulation No 883/2004 or bound by the obligation laid down in Article 44(2) in fine of Regulation No 987/2009 to afford legal effects to child-raising periods completed and contributions paid in another Member State in the same way as if those facts or events had taken place in its own territory.

1 - Original language: French.

2 - OJ 2009 L 284, p. 1.

3 - OJ 2004 L 166, p. 1.

4 - OJ, English Special Edition 1971(II), p. 416. It should be noted that this initial version has been amended on a number of occasions.

5 - OJ, English Special Edition 1972(I), p. 159.

6 - Case C-135/99 [2000] ECR I-10409.

7 - Case C-28/00 [2002] ECR I-1343.

8 - See recital 14 in the preamble to Regulation No 987/2009 and recital 13 in the preamble to the Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of the regulation (P6_TC1-COD(2006)0006), as well as Jorens, Y. and Van Overmeiren, F., 'General Principles of Coordination in Regulation 883/2004', European Journal of Social Security, Volume 11 (2009), Nos 1-2, p. 67.

9 - See below the questions to be answered in writing which the Court raised for the purposes of the hearing.

10 - The basic regulation, Regulation No 883/2004, entered into force on 20 May 2004, but did not become applicable until 1 May 2010, the date on which the implementing regulation, Regulation No 987/2009, itself entered into force.

11 - See recital 3 in the preamble to Regulation No 883/2004.

12 - Article 44(1) of Regulation No 987/2009 defines those periods for the purposes of that article, a definition made all the more useful by the fact that the understanding of that term varies from one Member State to another.

13 - See, for example, Case 13/68 Salgoil [1968] ECR 453 and Case C-54/07 Feryn [2008] ECR I-5187, paragraph 19, and the case-law cited.

14 - Case C-97/95 Pascoal & Filhos [1997] ECR I-4209, paragraph 22 et seq.

15 - Article 87(1) of Regulation No 883/2004 provides: 'No rights shall be acquired under this Regulation for the period before its date of application.'

16 - That provision does not seem to me to be relevant to this case, which concerns not the award of an old-age pension but an assessment of pension rights made by decisions of the DRN, which, although they have the potential to create law and are binding, as emerged from the exchange of argument and evidence at the hearing, will none the less take effect in the future, seemingly in 12 years' time, according to the documents before the national court.

17 - See Case 270/84 Licata v ESC [1986] ECR 2305, paragraph 31; Case C-512/99 Germany v Commission [2003] ECR I-845, paragraph 46, and the case-law cited; and point 65 et seq. of the Opinion of Advocate General Jacobs in Kauer.

18 - This does not answer the question as to the extent to which Regulation No 987/2009 might affect the legal validity of the decisions of the DRN, which were taken well before it entered into force.

19 - I cannot rule out the possibility that there are national provisions that would permit a different approach, but the question of the applicability ratione temporis of Regulation No 987/2009 and its effects in time is, in my view, governed entirely by the transitional provisions contained in it.

20 - The relationship between those two pieces of legislation, which are complementary, is such that evidence of an understanding of the basic regulation, Regulation No 883/2004, can be found in the implementing regulation, Regulation No 987/2009, and vice versa.

21 - See, by analogy, Kauer, paragraph 26, as regards the conditions to which the laws of the Member States subject recognition of a specific period as being equivalent to periods of insurance properly so called, and Case C-440/09 Tomaszewska [2011] ECR I-0000, paragraphs 26 and 27, as regards the conditions governing the constitution of periods of employment or insurance under those laws.

22 - The simultaneous application of multiple national laws to a single benefit must be precluded if the complications capable of arising from such a situation are to be avoided (Case 302/84 Ten Holder [1986] ECR 1821, paragraph 21), but a person insured under a social security scheme may draw multiple benefits of a different nature, such as a retirement pension and family allowance, to which the laws of different Member States are applicable (Case C-352/06 Bosmann [2008] ECR I-3827, paragraph 31).

23 - See, in particular, Case C-493/04 Piatkowski [2006] ECR I-2369, paragraph 34; Case C-345/09 van Delft and Others [2010] ECR I-0000, paragraph 100, and the case-law cited; and point 72 of my Opinion in the latter case.

24 - Article 44(3) of Regulation No 987/2009, which provides that Article 44(2) is not to 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, is not relevant to the case in the main proceedings.

25 - Pursuant to Article 93 of Regulation No 987/2009.

26 - That provision is worded as follows: 'a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17, shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone'.

27 - By means of Council Regulation No 2195/91 of 25 June 1991 amending Regulation No 1408/71 and Regulation No 574/72 (OJ 1991 L 206, p. 2).

28 - See point 49 of the Opinion in Kauer.

29 - See Case C-227/03 van Pommeren-Bourgondiën [2005] ECR I-6101, paragraphs 34 and 35, and the case-law cited.

30 - The judgment in Kauer makes reference in this respect to the judgments in Ten Holder, paragraph 14, and Case C-215/90 Twomey [1992] ECR I-1823, paragraph 10.

31 - According to the order for reference, it was for this reason that the DRN considered there to be a link with the Kingdom of Belgium, not the Federal Republic of Germany, for the purposes of sickness insurance.

32 - The choice of applicable law is precluded here, since the provisions of Title II of Regulation No 883/2004 form a complete and uniform system of conflict rules (see, as regards Regulation No 1408/71, Case C-196/90 De Paep [1991] ECR I-4815, paragraph 18). It further follows that Member States are not empowered to determine the extent to which their own legislation, or that of another Member State, is applicable (Case 276/81 Kuijpers [1982] ECR 3027, paragraph 14).

33 - See, for example, Article 14(2) of Regulation No 883/2004.

34 - Article 44 of the Proposal for a regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation No 883/2004 (COM(2006) 16 final).

35 - Recital 10 in the preamble to that regulation states that 'the competent institution [is] the one whose legislation applies or which is liable for the payment of certain benefits'.

36 - See recital 11 in the preamble to Regulation No 883/2004.

37 - The introduction of Article 5 means that, where Regulation No 883/2004 is applicable, it is no longer helpful to refer to the principle of the prohibition of discrimination on the ground of nationality, as the case-law in matters of social security often does. See Dern, S., 'Kommentar', in Schreiber, F. et al., VO (EG) Nr. 883/2004 - Verordnung zur Koordinierung der Systeme der sozialen Sicherheit, C. H. Beck, Munich, 2012, p. 69.

38 - See, in particular, the judgments cited in point 41 et seq. of the Opinion in Case C-373/02 Öztürk [2004] ECR I-3605, in which Advocate General Ruiz-Jarabo Colomer pointed out that case-law 'now states that the principle of equal treatment requires that, for the purpose of recognising the right of migrant workers to social security or other benefits, each Member State should take into account certain facts arising in the others, in order to equate them with those which arise in their own territory'.

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