> View Case
The reference was made in the context of proceedings between Mrs Reichel-Albert and the Deutsche Rentenversicherung Nordbayern (‘the DRN’) concerning the refusal by the latter to take into account and credit, for the purposes of calculating Mrs Reichel-Albert’s future old age pension, ‘child-raising periods’ and ‘periods to be taken into consideration’ completed by her in Belgium.
Mrs Reichel-Albert, a German national, 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. From July 1980 to June 1986, she was resident in Belgium with her spouse, who pursued an activity as an employed person there. The couple has two children, who were born in Belgium on in 1981 and 1984. On 1 July 1986, Mrs Reichel-Albert, her spouse and their children were officially returned to reside in Germany. By decisions in 2008, the DRN rejected Mrs Reichel-Albert’s request 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.
When the Sozialgericht Würzburg was confronted with this case, it decided to stay the proceeding and ask the ECJ, in essence, whether, in a situation such as that at issue in the main proceedings, Article 21 TFEU must be interpreted as requiring the competent institution of a first Member State, for the purposes of granting an old age pension, to take account of child-raising periods completed in a second Member State as though those periods had been completed on its national territory by a person who, at the time of the birth of his of her child, had ceased being in employment in that first Member State and had temporarily established his or her residence in the territory of the second Member State, although without being employed as an employee or self-employed person.
Article 21 TFEU was decisive in this case, as the ECJ held that it is t is apparent from Article 87(1) of Regulation 883/2004, which applies to situations governed by Regulation 987/2009 pursuant to Article 93 of that regulation, that it does not give rise to any entitlement for the period prior to the date of its application, namely 1 May 2010. Consequently, Article 44 of Regulation No 987/2009 is not applicable ratione temporis to the facts at issue in the main proceedings. As Regulation 1408/71 does not lay down specific rules for child-raising periods either, the ECJ only referred to the Treaty.
As to the applicable legislation to the situation of Mrs Reichel-Albert, the Court decided German legislation was applicable and, as regards the crediting of those periods of child-rearing for the purposes of old age insurance, Mrs Reichel-Albert cannot be regarded as coming under the jurisdiction of her Member State of residence during the periods concerned. The fact that she worked and contributed in only one Member State, both before and after temporarily transferring her place of residence, solely on family-related grounds, to another Member State where she never worked or contributed, allows a sufficiently close link to be established between those child-raising periods and the periods of insurance completed by virtue of the pursuit of a gainful occupation in the first Member State under consideration.
As to the German procedure for taking into account the child-raising periods, the Court assessed its compatibility in the light of Article 21 TFEU. According to German law, for the purposes of the granting of an old age pension by the competent institution of a Member State, child-raising periods completed outside the territory of that Member State, unlike those completed in the national territory, are not taken into account unless, inter alia, the child-raising parent has habitually resided abroad with his or her child and during the period devoted to child-raising or immediately before the birth of the child has completed periods of contribution by virtue of an activity carried on there as an employed or self-employed person.
In a situation such as Mrs Reichel-Albert’s, the provisions in question lead to a result where child-raising persons who have not completed periods of compulsory contribution by virtue of an activity carried on as an employed or self-employed person during the raising or immediately before the birth of the child is not entitled to have taken into account, for the purpose of determining the amount of their pension, their child-raising periods solely because they temporarily established their residence in the territory of another Member State, even though they were not employed as an employee or self-employed person in that second Member State.
National legislation which places some of its nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State thereby gives rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move. As no justification was put forward, it must be held that, in a context such as that at issue in the main proceedings, the fact of precluding child-raising periods completed outside the national territory from being taken into account, is contrary to Article 21 TFEU.