Language of document : ECLI:EU:C:2017:329

Provisional text

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 3 May 2017 (1)

Case C189/16

Boguslawa Zaniewicz-Dybeck

v

Pensionsmyndigheten

(Request for a preliminary ruling from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden))

(Reference for a preliminary ruling — Social security for migrant workers and their families — Regulation (EEC) No 1408/71 — Article 46(2) — Article 47(1)(d) — Article 50 — Guaranteed pension — Calculation of pension rights — Basis of calculation — Pro-rata calculation — Theoretical amount)






I.      Introduction

1.        This request for a preliminary ruling of 23 March 2016 from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), received at the Court Registry on 4 April 2016, concerns the interpretation of Article 46(2) and Article 47(1)(d) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, (2) as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (3) (‘Regulation No 1408/71’). (4)

2.        The request has been made in the context of a dispute between Ms Zaniewicz-Dybeck and the Pensions Authority concerning the calculation of a retirement pension in the form of a guaranteed pension.

3.        The referring court wishes to know inter alia whether Article 46(2) and Article 47(1)(d) of Regulation No 1408/71 mean that insurance periods completed in another Member State of the European Union can be given a value which corresponds to the average value of the insurance periods completed in Sweden when calculating the Swedish guaranteed pension

II.    Legal context

A.      European Union law

4.        Article 4 of Regulation No 1408/71, entitled ‘Matters covered’, provides as follows:

‘…

2. This Regulation shall apply to all general and special social security schemes, whether contributory or non-contributory …

…’

5.        Under Title III, entitled ‘Special provisions relating to the various categories of benefits’, Chapter 3 of Regulation No 1408/71, which is entitled ‘Old age and death (pensions)’, contains Articles 44 to 51a.

6.        Article 44 of that regulation, entitled ‘General provisions for the award of benefits where an employed or self-employed person has been subject to the legislation of two or more Member States’, is worded as follows:

‘1.      The rights to benefits of an employed or self-employed person who has been subject to the legislation of two or more Member States, or of his survivors, shall be determined in accordance with the provisions of this Chapter.

…’

7.        Article 46 of the regulation, entitled ‘Award of benefits’, provides:

‘…

2.      Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 45 and/or Article 40(3), the following rules shall apply:

(a)      the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim provided all periods of insurance and/or of residence, which have been completed under the legislation of the Member State to which the employed person or self-employed person was subject, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph;

(b)      the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding paragraph in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislation of all the Member States concerned.

…’

8.        Article 47 of Regulation No 1408/71, entitled ‘Additional provisions for the calculation of benefits’, provides in paragraph 1 thereof:

‘1. For the calculation of the theoretical and pro-rata amounts referred to in Article 46(2), the following rules shall apply:

(d)      where, under the legislation of a Member State, benefits are calculated on the basis of the amount of earnings, contributions or increases, the competent institution of the State shall determine the earnings, contributions and 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;

…’

9.        Article 50 of Regulation No 1408/71, entitled ‘Award of a supplement where the total of benefits payable under the legislation of the various Member States does not amount to the minimum laid down by the legislation of the State in whose territory the recipient resides’, provides:

‘A recipient of benefits to whom this Chapter applies may not, in the State in whose territory he resides and under whose legislation a benefit is payable to him, be awarded a benefit which is less than the minimum benefit fixed by that legislation for a period of insurance or residence equal to all the periods of insurance or residence taken into account for the payment in accordance with the preceding Articles. The competent institution of that State shall, if necessary, pay him throughout the period of his residence in its territory a supplement equal to the difference between the total of the benefits payable under this Chapter and the amount of the minimum benefit.’

B.      Swedish law

10.      The Swedish pensions system is made up of various parts. At issue in the present case are State retirement pensions in the form of graduated pensions, supplementary pensions and guaranteed pensions.

11.      A graduated income pension and a supplementary pension are earnings-related pensions. They are essentially contributory employment-based benefits.

12.      The guaranteed pension is a tax-funded, residence-based benefit. Its purpose is to achieve a new level of protection for those who have a low income or no income at all. According to the referring court, that pension, which is determined on the basis of other income from pensions, is in the nature of a social benefit. There is therefore a stepped reduction in the guaranteed pension by reference to the graduated pension, the supplementary pension and receipt of certain other benefits. A person whose income from the aforementioned pensions and benefits exceeds a certain amount does not receive a guaranteed pension.

13.      The national provisions relating to the guaranteed pension which are applicable to this case are those in the lagen (1998:702) om garantipension (Law (1998:702) on the guaranteed pension), which has been replaced by the socialförsakringsbalken (Social Security Code (2010:110); ‘SFB’).

14.      The referring court states that Paragraph 15 of Chapter 67 of the SFB ‘provides that …the income-based retirement pension … to which the insured person is entitled for the same years with those amendments and increases set out in certain paragraphs [paragraphs 16 to 20 of Chapter 67 of the SFB] is to form the basis of calculation of the guaranteed pension (‘the basis of calculation’). (5)

15.      The basic amount of the guaranteed pension is set in Paragraph 7 of Chapter 2 of the SFB. The amount is index-linked to general price levels. During the material year the basic amount was SEK 39 400.

16.      In order to determine the definitive amount of the guaranteed pension, the basic amount is subject to the increases and reductions provided for in Paragraphs 23 and 24 of Chapter 67of the SFB.

17.      The guaranteed pension is paid to persons aged 65 years and over who have completed a period of insurance of at least three years. The period of insurance is determined, furthermore, by reference to the time for which a person has been resident in Sweden. Paragraph 25 of Chapter 67 of the SFB states that, for a person who has not completed an insurance period spanning 40 years for the guaranteed pension, all the sums relating to the basic amount set out in Paragraphs 21 to 24 are to be reduced on a pro rata basis by a percentage corresponding to the quotient of the insurance period divided by 40 (pro rata calculation).

18.      The Försäkringskassan (National Insurance Fund, Sweden), which previously dealt with certain questions concerning retirement pensions, stated in its internal instructions (Instructions 2007:2, ‘the instructions’) that ‘for the purposes of the pro-rata calculation of, inter alia, guaranteed pensions in the form of retirement pensions for persons born in or after 1938, the National Insurance Fund, when calculating the theoretical amount, must attribute to each insurance period completed in the other Member States concerned a pensionable value which corresponds to the average pensionable value of the periods of insurance completed in Sweden. As of 1 January 2010, [the Pensions Authority] shall deal with all questions concerning the State retirement pension. The above-mentioned instructions … shall remain a source of guidance as to how the Pensions Authority is to reach its decisions’. (6)

19.      According to the referring court, following the adoption of the instructions, the National Insurance Fund has calculated the guaranteed pension by attributing to each period of insurance completed in another Member State a pensionable value which corresponds to the average pensionable value of the periods of insurance completed in Sweden.

III. The facts in the main proceedings and the questions referred for a preliminary ruling

20.      Ms Zaniewicz-Dybeck, a Polish national, was born in 1940 and in 1980 moved from Poland to Sweden. She worked in Poland for 19 years, lived in Sweden for 24 years and worked there for 23 years.

21.      On 5 August 2008, the National Insurance Fund gave a decision on an application for a State retirement pension submitted by Ms Zaniewicz-Dybeck and, on that occasion, set the amount of the guaranteed pension at zero SEK.

22.      Rejecting Ms Zaniewicz-Dybeck’s objection, by decision of 1 September 2008, the National Insurance Fund, confirmed its decision and justified it by the fact that Ms Zaniewicz-Dybeck had completed insurance periods in both Sweden and Poland. Therefore, the guaranteed pension had been calculated partly on the basis of national Swedish provisions and partly on the basis of the pro rata principle laid down in Article 46(2) of Regulation No 1408/71.

23.      The referring court notes that, on the basis of Ms Zaniewicz-Dybeck’s income of SEK 75 216, the Swedish pension was first given an annual value of SEK 3 134 (SEK 75 216/24) in respect of an insurance period of 24 years in Sweden. That amount was then multiplied by the maximum period for the guaranteed pension, that is to say 40 years (SEK 3 134 x 40 = SEK 125 360). The Swedish authority then found that Ms Zaniewicz-Dybeck’s income was too high for her to be awarded a guaranteed pension.

24.      Ms Zaniewicz-Dybeck contested the National Insurance Fund’s decision before the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm, Sweden), which considered that the calculation made by the National Insurance fund was in accordance with Regulation No 1408/71 and dismissed the application. Ms Zaniewicz-Dybeck appealed against the judgment of the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm) before the Kammarrätten I Stockholm (Administrative Court of Appeal, Stockholm, Sweden), which dismissed the appeal.

25.      Ms Zaniewicz-Dybeck then lodged an appeal with the referring court. She submitted that the theoretical amount of the guaranteed pension should have been calculated in accordance with Regulation No 1408/71 without applying the instructions adopted by the National Insurance Fund. According to Ms Zaniewicz-Dybeck, since the Swedish guaranteed pension is based only on the total length of the insurance periods, after deducting the income-based pension earned in Sweden, Article 47(1)(d) of Regulation No 1408/71 does not apply to the calculation of the guaranteed pension. Ms Zaniewicz-Dybeck observed that the method of calculation under the instructions operated to the disadvantage of a large number of immigrants from other Member States of the European Union with low income-based pensions.

26.      According to the Pensions Authority, periods of insurance completed in another Member State confer entitlement to a pension from that Member State and, as the guaranteed pension is complementary in nature, if the pension were calculated without applying Article 47(1)(d) of Regulation No 1408/71, that would mean that a pension recipient who has completed insurance periods in another Member State would be overcompensated as the guaranteed pension would be higher than that received by a person who has not completed so many periods.

27.      Furthermore, according to that authority, if it were not possible to adjust a pensionable value to take account of the insurance periods completed abroad, that could result in insurance periods completed abroad being given a lower value (de facto no pensionable value at all) than that of corresponding periods completed in Sweden. It considered that it was not reasonable for the guaranteed pension, a basic form of income-based protection, to be paid without reference either to the pensionable value of the insurance years completed abroad or to income-based pensions paid by other EU Member States. The Pensions Authority pointed out that that method would mean that a person entitled to an income-based pension from another EU Member State would receive a Swedish guaranteed pension that was higher than that which would be paid to a pension recipient who had been insured and was entitled only to the income-based pension in Sweden.

28.      In order to explain the need for it to make a reference for a preliminary ruling, the national court stated that, in ‘its judgment of 22 October 1998, Conti (C‑143/97, EU:C:1998:501), the Court established that national provisions for reduction of benefits cannot be rendered exempt from the conditions and limits of application laid down in Regulation No 1408/71 by categorising them as rules for calculating the amount payable. A national rule must be regarded as a provision for reduction of benefit if the calculation which it requires to be made has the effect of reducing the amount of pension which the person concerned may claim because he receives a benefit from another Member State (paragraphs 24 and 25)’. (7) The referring court added that ‘in Sweden the conclusion has been drawn from that decision that the … reduction of the guaranteed pension by reference to the income-based retirement pension is not to be regarded as a rule of calculation but a provision for reduction for the purposes of Regulation No 1408/71 … For that reason, the Swedish authorities found it necessary to apply the rules in such a way that guaranteed pensions were not reduced by the amount of pensions paid by other [EU Member States]. Instead, a pro-rata calculation is made to ascertain whether persons who worked both in Sweden and in other [EU Member States] are entitled to the guaranteed pensions.’ (8)

29.      The referring court points out that, following the adoption of the instructions, (9) the guaranteed pension was calculated by giving each insurance period completed in another Member State a pensionable value which corresponds to the average pensionable value of the periods of insurance completed in Sweden.

30.      According to the referring court, the question that arises in this case is whether Article 47(1)(d) of Regulation No 1408/71 is to apply in this instance and, if so, whether insurance periods completed in another EU Member State may be given a fictitious pensionable value which corresponds to the average value of the periods of insurance completed in Sweden for the purposes of the pro-rata calculation to be carried out under Article 46(2) of that regulation.

31.      In those circumstances, the Högsta förvaltningsdoomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice:

‘1       Do the provisions in Article 47(1)(d) of Regulation No 1408/71 mean that, in calculating the Swedish guaranteed pension, insurance periods completed in another Member State can be given a pensionable value which corresponds to the average value of the periods completed in Sweden where the competent institution undertakes a pro-rata calculation in accordance with Article 46(2) of that regulation?

2       If question 1 is answered in the negative, may the competent institution, in its calculation of the entitlement to a guaranteed pension, take account of pension income which an insured person receives in another Member State, without that running counter to the provisions of Regulation No 1408/71?’

IV.    Procedure before the Court

32.      Written observations have been submitted by the Pensions Authority, the Kingdom of Sweden, the Czech Republic and the European Commission, all of whom, with the exception of the Czech Republic, presented oral argument at the hearing on 9 March 2017.

V.      Analysis

A.      Preliminary observations

33.      The two questions raised by the referring court concern the calculation of whether a person is entitled to the Swedish guaranteed pension and the possible application of the provisions of Regulation No 1408/71.

34.      For the purpose of answering those questions, it should be noted that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national schemes to exist and its sole objective is to ensure the coordination of those schemes. Thus, according to settled case-law, Member States retain the power to organise their own social security schemes. Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits. In exercising those powers, Member States must nonetheless comply with EU law and, in particular, with the provisions of the FEU Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States. (10)

35.      In that regard, it should be pointed out that Regulation No 1408/71 does not require Member States to provide for a minimum old age pension such as the Swedish guaranteed pension. However, it is established case-law that, although Regulation No 1408/71 assumes that ‘not all the systems of legislation necessarily include minimum benefits of the type in question [the Swedish guaranteed pension]’, (11) that regulation applies to such benefits (12) when they are provided for by national legislation.

36.      Moreover, it should be noted that the guaranteed pension is calculated by applying to the basic amount provided for in Paragraph 7 of Chapter 2 of the SFB the increases and reductions provided for in Paragraphs 23 and 24 of Chapter 67 of the SFB. It is apparent from the documents before the Court that those increases and reductions are designed to take into account inter alia the personal circumstances (13) and other pension income of the person concerned. It follows that the guaranteed pension is not a fixed amount and that how it is calculated varies depending on the specific circumstances of the person concerned. Notwithstanding its variable amount, which may be SEK zero if the income of the person concerned is too high, the objective (14) of the guaranteed pension is to ensure a basic income for persons receiving low occupational and supplementary pensions. (15) As it is necessary to characterise the minimum benefit at issue, I consider that it is a non-contributory old-age benefit as referred to in Article 4(2) of Regulation No 1408/71 and that the recipient’s rights must, in that case, as provided for in Article 44 of the regulation, be determined in accordance with the provisions of Chapter 3 in Title III of the regulation, and in particular, in accordance with the provisions of Article 46 and 51a thereof. (16)

37.      I note that at the hearing on 9 March 2017, the Kingdom of Sweden emphasised the fact that the guaranteed pension is part of the general pension scheme. In my view, however, and contrary to what the Kingdom of Sweden appears to maintain, the guaranteed pension is not an old age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71. Since the guaranteed pension is tax-funded, (17) it is not calculated on the basis of the recipient’s own contributions and the period during which contributions were made to the insurance scheme. (18) Furthermore, it is apparent from the provisions relating to the grant of the guaranteed pension that it is not paid only to recipients of an occupational and/or supplementary pension. (19) The guaranteed pension is paid to persons aged 65 or over who have completed a period of insurance of at least three years, which is determined by reference to the length of time the person concerned has lived in Sweden and to any other pension income he receives.

38.      Furthermore, the Kingdom of Sweden referred to another old-age benefit which guarantees a minimum subsistence income. It seems to me, subject to verification by the referring court, that this benefit is not at issue in this case. Moreover, it is covered by Article 4(2a) of Regulation No 1408/71, which concerns ‘special non-contributory benefits which are provided under legislation which … has characteristics both of social security legislation … and of social assistance’ and which are listed in Annex IIa, ‘Financial support for the elderly (Law 2001:853)’. (20)

39.      In any event, it is apparent from the judgments of 22 April 1993, Levatino (C‑65/92, EU:C:1993:149, paragraph 21), and of 24 September 1998, Stinco and Panfilo (C‑132/96, EU:C:1998:427, paragraphs 19 to 21), that Article 46(2) and Article 50 of Regulation No 1408/71 apply to the benefits referred to in Article 4(2) and Article 4(2a) of that regulation.

B.      The questions referred for preliminary ruling

1.      The first question referred

40.      By its first question, the referring court asks, in essence, whether, when the competent institution undertakes a pro-rata calculation of the Swedish guaranteed pension pursuant to Article 46(2) of Regulation No 1408/71, insurance periods completed in another Member State, in this instance Poland, can be given a pensionable value which corresponds to the average value of the insurance periods completed in Sweden, in accordance with Article 47(1)(d) of that regulation.

41.      Since Article 47(1)(d) of Regulation No 1408/71 constitutes an additional rule for the calculation of the theoretical and pro-rata amounts referred to in Article 46(2) of that regulation and must therefore be interpreted in the light of the latter provision, (21) it is first of all necessary to ascertain whether and, if so, how Article 46(2) of Regulation No 1408/71 applies to the calculation of the Swedish guaranteed pension. (22)

42.      Where entitlement to benefits is subject, under the legislation of a Member State, to completion of periods of insurance, Article 45 of Regulation No 1408/71 requires the competent institution of that Member State, whose legislation makes the acquisition, retention or recovery of the right to benefits conditional on the completion of periods of insurance, to take into account periods of insurance completed under the legislation of any Member State as if they had been completed under the legislation which it administers. To put it another way, periods of insurance completed in various Member State must be aggregated. (23)

43.      In such cases, Article 46(2) of Regulation No 1408/71 is to apply. It provides that the competent institution is to calculate the theoretical amount of the benefit to which the person concerned is entitled as if all the periods of work completed in various Member States had been completed in the Member State of the competent institution.

44.      Next, under Article 46(2)(b) of Regulation No 1408/71, the competent institution is required to determine the actual amount of the benefit on the basis of the theoretical amount in accordance with the ratio of the duration of the periods of insurance and/or of residence in the Member State of the competent institution to the total duration of the periods of insurance and/or of residence completed in the various Member States. (24)

45.      It is apparent from the documents before the Court that, in order to establish whether Ms Zaniewicz-Dybeck, who had completed periods of insurance and/or of residence in Poland and in Sweden, was entitled to the Swedish guaranteed pension, the National Insurance Fund applied a methodology based on apportionment (‘pro rata calculation’) (25) to the amount of the Swedish income-based pensions (26) (graduated and supplementary) (namely SEK 75 216), (27) in accordance with Paragraph 25 of Chapter 67 of the SFB and with the instructions. That calculation produced a figure significantly higher than the latter amount (namely, SEK 125 360), (28) which was also too high to confer entitlement to a guaranteed pension.

46.      That methodology (29) is incorrect because, in my view, whether a person is entitled to the Swedish guaranteed pension must be assessed in accordance with Swedish legislation and with Article 50 of Regulation No 1408/71, (30) without applying the apportionment methodology provided for in Paragraph 25 of Chapter 67 of the SFB and the instructions.

47.      Since Regulation No 1408/71 does not require Member States to provide minimum old-age benefits, such as the Swedish guaranteed pension, not all systems of legislation necessarily make provision for a minimum old-age benefit. There is therefore no obvious reason why Article 46(2) of Regulation No 1408/71 should impose specific and detailed rules for calculating that minimum benefit. (31)

48.      On the other hand, the amount of the Swedish guaranteed pension, calculated in accordance with national legislation, (32) must be taken into account under Article 46(2) of Regulation No 1408/71 (33) in order to calculate the Swedish income-based pension, without applying the apportionment methodology laid down in Paragraph 25 of Chapter 67 of the SFB and the instructions.

49.      It should be pointed out that, in paragraph 21 of the judgment of 24 September 1998, Stinco and Panfilo (C‑132/96, EU:C:1998:427),(34) the Court held ‘that a statutory minimum benefit set by a Member State must be taken into account in calculating the theoretical amount referred to in Article 46(2)(a) of Regulation No 1408/71’. (35)

50.      It is apparent from the judgments of 24 September 1998, Stinco and Panfilo (C‑132/96, EU:C:1998:427, paragraph 22), and of 21 July 2005, Koschitzki (C‑30/04, EU:C:2005:492, paragraph 23), that, under Article 46(2)(a) of Regulation No 1408/71, the competent institution must take into consideration, in determining the theoretical amount of the pension serving as the basis for calculating the apportioned pension, an additional amount intended to bring the pension to the guaranteed or minimum level provided for by national legislation.

51.      The calculation to be made pursuant to Article 46(2)(a) of Regulation No 1408/71 ‘is intended to give a worker the maximum theoretical amount which he could claim if all periods of insurance had been completed in the State concerned’. (36)

52.      Consequently, if the theoretical amount of the pension serving as a basis for calculating the apportioned pension to which Ms Zaniewicz-Dybeck would the entitled if she had worked in Sweden throughout her working life is lower than the amount of the guaranteed pension calculated in accordance with Swedish law, an extra amount or supplement must be added to the theoretical amount in order to bring it up to the level of the guaranteed pension.

53.      Since the Swedish income-based pension is based on the ‘amount of earnings, contributions or increases’, I consider that it is apparent from the wording of Article 47(1)(d) of Regulation No 1408/71, which is mandatory, that, when calculating the theoretical amount of the pension serving as the basis for the calculation of the pension based on apportionment, pursuant to Article 46(2)(a) of Regulation No 1408/71, the competent institution (37) must determine the amount of the earnings, contributions or increases to be taken into account in respect of the periods of insurance and/or of residence completed under the legislation of other Member States (38) on the basis of the amount of the earnings, contributions or increases, recorded for the periods of insurance and/or of residence completed under the legislation which that institution administers. (39) The application of Article 47(1)(d) of Regulation No 1408/71 ensures that basis of the calculation in question is the same for a migrant worker as if he had not exercised his right to freedom of movement, which the Court has previously held to be consistent with the objective laid down by Article 48 TFEU. (40)

54.      Moreover, it is should be noted that, as a result of the application of the apportionment methodology laid down by Article 46(2)(b) of Regulation No 1408/71, the advantage of the possible inclusion of an extra amount or supplement in the theoretical amount of the pension serving as the basis for the calculation of the pension based on apportionment in order to bring it up to the level of the Swedish guaranteed pension is strictly limited to the periods of insurance completed by Ms Zaniewicz-Dybeck in Sweden, which avoids any of the alleged overcompensation. (41)

55.      In conclusion, I take the view that the right to receive a minimum old-age benefit such as the Swedish guaranteed pension must be assessed by reference to Swedish legislation, without applying the apportionment methodology laid down by Paragraph 25 of Chapter 67 of the SFB and the instructions, and to Article 50 of Regulation No 1408/71. When calculating the theoretical amount of the pension serving as the basis for calculating the pension based on apportionment pursuant to Article 46(2)(a) of Regulation No 1408/71, the competent institution must take into consideration any minimum old-age benefit guaranteed by the legislation of its Member State in order to ensure that the worker has the maximum theoretical amount of the pension serving as the basis for calculating the apportioned pension which he would have been able to claim if all his periods of insurance had been completed in the State in question. Moreover, under Article 47(1)(d) of Regulation No 1408/71, when calculating that theoretical amount, the competent institution must determine the amount of earnings, contributions or increases to be taken into account in respect of the periods of insurance and/or residence completed under the legislation of other Member States on the basis of the amount of earnings, contributions or increases recorded in respect of the periods of insurance and/or residence completed under the legislation which it administers.

2.      The second question

56.      By its second question, the referring court asks whether Regulation No 1408/71 provides that the competent institution may, in its calculation to determine whether an insured person is entitled to a guaranteed pension, take account of pension income which that person receives in another Member State.

57.      For the purpose of answering this question, I consider that it is appropriate to refer to the title and terms of Article 50 of Regulation No 1408/71, which are reproduced in point 9 of this Opinion. (42)

58.      In paragraphs 5 and 6 of the judgment of 30 November 1977, Torri (64/77, EU:C:1977:197), the Court held that Article 50 of Regulation No 1408/71 ‘cover[ed] cases where the periods of employment of the worker under the legislation of the States to which he was subject were relatively short with the result that the total amount of the benefits payable by those States does not provide a reasonable standard of living’. In ‘order to remedy that situation, the article in question provides that where the legislation of the State of residence lays down a minimum benefit, the benefit payable by that State shall be increased by a supplement equal to the difference between the total of the benefits payable by the different Member States to the legislation of which the worker was subject and the minimum benefit. (43)

59.      It follows that, when calculating whether she is entitled to the Swedish guaranteed pension, the National Insurance Fund, if it is not to pay a higher amount, (44) may take into account the pension income which Ms Zaniewicz-Dybeck receives from another Member State, in accordance with Article 50 of Regulation No 1408/71. (45) Furthermore, under that provision, the National Insurance Fund must take into account all the insurance periods and/or of residence of Ms Zaniewicz-Dybeck which are taken into consideration for payment, of inter alia old-age benefits. It follows that the periods of insurance and/or of residence completed by Ms Zaniewicz-Dybeck in Poland and in Sweden must be taken into account. (46)

60.      The fact that the competent institution is able to take into consideration old-age benefits received in another Member States, as well as periods of insurance and/or residence, avoids any of the alleged overcompensation. (47)

61.      In conclusion, I consider that Article 50 of Regulation No 1408/71 is to be interpreted as meaning that the competent institution, when calculating whether an insured person is entitled to a minimum old-age benefit, may take into account pension income which that person receives from another Member State.

VI.    Conclusion

62.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) as follows:

1.      Whether a person is entitled to receive a minimum old-age benefit must be assessed in accordance with the applicable national legislation and with Article 50 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, without applying the apportionment methodology laid down by Paragraph 25 of Chapter 67 of the lagen (1998:702) om garantipension (Law (1998:702) on the guaranteed pension), which was replaced by the socialförsakringsbalken (Law (2010:110) on the Social Security Code) or Instructions 2007:2 of the Försäkringskassan (National Insurance Fund, Sweden).

When calculating the theoretical amount of the pension serving as the basis for calculating the pension based on apportionment pursuant to Article 46(2)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, the competent institution must take into consideration any minimum old-age benefit guaranteed by the legislation of its Member State in order to ensure that the worker receives the maximum theoretical amount of the pension serving as the basis for the calculation of the pension based on apportionment which he would have been able to claim if all his periods of insurance had been completed in the State in question.

Article 47(1)(d) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, is to be interpreted as meaning that, when calculating that theoretical amount, the competent institution must determine the amount of earnings, contributions or increases to be taken into account in respect of the periods of insurance and/or residence completed under the legislation of other Member States on the basis of the amount of earnings, contributions or increases recorded in respect of the periods of insurance and/or residence completed under the legislation which it administers.

2.      Article 50 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, is to be interpreted as meaning that the competent institution, when calculating whether an insured persons is entitled to a minimum old-age benefit, may take into account pension income which that person receives from another Member State.


1      Original language: French.


2      OJ 1997 L 28, p.1.


3       OJ 2006 L 392, p. 1.


4       Regulation No 1408/71 was replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43, ‘Regulation No 883/2004’). The latter regulation has been applicable, in accordance with Article 91 thereof, from the date on which its implementing regulation entered into force. Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation 883/2004 (OJ 2009 L 284, p. 43) came into force on 1 May 2010. Since the Pensionsmyndigheten (Pensions Authority, Sweden) handled the application for a State retirement pension submitted by Ms Boguslawa Zaniewicz-Dybeck on 5 August 2008 and calculated her guaranteed pension at zero Swedish Krone (SEK) on that occasion, I consider that Regulation No 1408/71 is applicable ratione temporis to the dispute in the main proceedings. In any event, Article 46(2), Article 47(1)(d) and Article 50 of Regulation No 1408/71 broadly correspond to Article 52(1), Article 56(1)(c) and Article 58 of Regulation No 883/2004.


5       See paragraph 18 of the order for reference.


6       See paragraph 22 of the request for a preliminary ruling.


7       See paragraph 29 of the order for reference.


8       See paragraph 30 of the order for reference.


9       See point 18 of this Opinion.


10       See the judgment of 21 February 2013, Salgado González (C‑282/11, EU:C:2013:86, paragraphs 35 to 37 and the case-law cited).


11       Judgment of 30 November 1977, Torri (64/77, EU:C:1977:197, paragraph 7).


12       See, to that effect, judgment of 17 December 1981, Browning (22/81, EU:C:1981:316, paragraph 10).


13       For example, his or her civil status.


14       According to the referring court, ‘the objective [of the guaranteed pension is] to achieve a new level of protection for those in receipt of little or no income ... That pension is therefore in the nature of a social benefit. The guaranteed pension is determined on the basis of other pension income. There is therefore a stepped reduction in that pension by reference to any graduated pension, supplementary pension and certain other benefits. A person whose income as derived from the pension and benefits referred to above exceeds a certain amount does not receive a guaranteed pension’. See paragraph 3 of the order for reference.


15       In its written observations, the Kingdom of Sweden maintained that ‘the basis of the Swedish pension paid under the general scheme is that a person acquires the right to his own pension as a consequence of working and paying contributions. For various reasons, not everybody is able to do that and that is why there is a bridging guaranteed pension, defined as being part of the pension paid under the general scheme, for those who have acquired the right to a low income-based Swedish pension or who have not acquired one at all. That bridging guaranteed pension is specifically a guaranteed amount which is only paid to a person who has been unable to acquire the right to his own Swedish pension. Consequently, the benefit depends on the income of the person in that it is deducted from the amount of his own acquired pension. … If a person already has adequate pension income, no guaranteed pension is to be paid’. See paragraph 7 of the Kingdom of Sweden’s observations.


16       See the judgment of 22 April 1993, Levatino (C‑65/92, EU:C:1993:149, paragraph 21).


17       It follows that it does not have the same sources of financing as those which finance occupational and supplementary pensions. See, a contrario, the judgment of 20 January 2005, Noteboom (C‑101/04, EU:C:2005:51, paragraph 27).


18       In paragraph 14 of the judgment of 5 July 1983, Valentini (171/82, EU:C:1983:189), the Court held that ‘the essential characteristic of the old-age benefits referred to in Articles 4(1)(c) and 46 of Regulation No 1408/71 lies in the fact that they are intended to safeguard the means of subsistence of persons who, when they reach a certain age, leave their employment and are no longer required to hold themselves available for work at the employment office. Moreover, the system of aggregation and apportionment of the benefits provided for in Article 46 is based on the assumption that the benefits are normally financed and acquired on the basis of the recipient’s own contributions and calculated by reference to the length of time during which he has been affiliated to the insurance scheme’. Emphasis added. See also the judgment of 18 December 2007, Habelt and Others (C‑396/05, EU:C:2007:810, paragraphs 66 to 69) on contribution periods.


19       It follows that the guaranteed pension is not necessarily received by the same persons as occupational and supplementary pensions. See, a contrario, the judgment of 20 January 2005, Noteboom (C‑101/04, EU:C:2005:51, paragraph 27). The guaranteed pension may be paid to persons who receive no income at all, in particular no retirement pension. See, to that effect, point 12 of this Opinion.


20       See the judgment of 29 April 2004, Skalka (C‑160/62, EU:C:2004:269, paragraphs 25 and 26). Under Article 10a of Regulation No 1408/71, the persons to whom the regulation applies are to receive the special non-contributory cash benefits referred to in Article 4(2)(a), exclusively in the territory of the Member State in which they reside. It follows that those benefits are not ‘exportable’.


21       See, by analogy, the judgments of 9 October 1997, Naranjo Arjona and Others (C‑31/96, EU:C:1997:475, paragraph 20, and of 21 February 2013), Salgado González (C‑282/11, EU:C:2013:86, paragraph 42).


22       In paragraph 43 of the judgment of 21 February 2013, Salgado González (C‑282/11, EU:C:2013:86), the Court held that ‘Articles 46(2) and 47(1) of Regulation No 1408/71 must be interpreted in the light of the objectives laid down by Article 48 TFEU, which implies in particular that migrant workers must not suffer a reduction in the amount of their Social Security benefits as a result of having availed themselves of their right of free movement’. Emphasis added.


23       It follows that, under Article 45 of Regulation no 1408/71, Ms Zaniewicz-Dybeck may ask for the periods of insurance she completed in Poland and Sweden to be aggregated, inter alia, in order to receive a graduated pension and a supplementary pension.


24       A specific example of that methodology was given in point 5 of the Opinion of Advocate General Jacobs in Stinco and Panfilo (C‑132/96, EU:C:1997:436), which states: ‘thus, if a person works in Member State A for 10 years and in Member State B for 20 years, then even if under the legislation of Member State A he would not be entitled to a pension for an insurance period of 10 years (for example because that State require applicants to have worked there for 15 years), by virtue of Article 46(2) he would be entitled in Member State A to one-third of the benefit he could claim if he had worked there for 30 years. The first step of the procedure thus described (i.e. the calculation of the theoretical amount under Article 46(2)(a)) is known as aggregation and the second step (i.e. the calculation of the pro rata benefit under Article 46(2)(b)) as apportionment’.


25       See point 17 of this Opinion.


26       See point 23 of this Opinion. In other words, when calculating whether Ms Zaniewicz-Dybeck’s was entitled to the guaranteed pension, the National Insurance Fund did not take into account the amount of the retirement pension she had been granted in respect of the periods of insurance she had completed in Poland.


27       See points 17 and 18 of this Opinion. See also point 23 of this Opinion.


28       See point 23 of this Opinion. It seems to me that, subject to verification by the referring court, the National Insurance Fund, by using that methodology, has, as it were, simulated a theoretical amount for the guaranteed pension of Ms Zaniewicz-Dybeck. That brings to mind the aggregation and apportionment methodology provided for in Article 46(2)(a) and (b) of Regulation No 1408/71.


29       Supposing that the guaranteed pension is EUR 100 for an insurance period of 40 years in Member State A and that X has an old-age pension of EUR 70 in Member State A (for an insurance period of 20 years) and EUR 10 in State B (for an insurance period of 20 years), according to the methodology laid down by Paragraph 25 of Chapter 67 of the SFB and the instructions, for his 40 years of insurance periods in Member States A and B, X will not be entitled to a supplement in order to reach the amount of the guaranteed pension. According to that methodology, the annual value of his pension in Member State A will be EUR 3.5 (70/20). When that amount is multiplied by the maximum period of 40 years for the guaranteed pension, the resulting amount is higher than the guaranteed pension (that is, 3.5 x 40 = EUR 140). For the application of that methodology in the main proceedings, see point 23 of this Opinion.


30       See points 56 to 60 of this Opinion, in so far as concerns Article 50 Regulation No 1408/71. That provision lays down specific rules for assessing whether a person is entitled to a pension and, if so, calculating a supplement to ensure that a recipient of benefits, inter alia old-age benefits, receives an amount equal to the amount of the minimum benefit fixed by the State in which he resides, such as the Swedish guaranteed pension. Moreover, that provision provides for benefits payable by other Member States and the duration of a recipient’s periods of insurance or residence in those other Member States to be taken into consideration. See, a contrario, the observations of the Pensions Authority in points 26 and 27 of this Opinion, in which it is claimed that there would be a risk of overcompensation if it were not possible, when calculating the Swedish guaranteed pension, to take into account, on the one hand, the pensionable value of the years of insurance completed in another Member State and, on the other hand, the income-based pensions paid by another Member State.


31       See, by analogy, the judgment of 21 July 2005, Koschitzki (C‑30/04, EU:C:2005:492, paragraphs 31 and 32).


32       See point 16 of this Opinion.


33       See paragraph 31 of the judgment of 21 July 2005, Koschitzki (C‑30/04, EU:C:2005:492), in which the Court held that ‘the duty to take account of the supplement does not imply that a meaning must be attributed to it which it does not have under national law’.


34       See also, to that effect, paragraph 23 of the judgement of 21 July 2005 Koschitzki (C‑30/04, EU:C:2005:492). It should be noted that the Court held in paragraph 27 of the judgment of 22 April 1993, Levatino (C‑65/92, EU:C:1993:149) that where a Member State provides for benefits such as a guaranteed pension and a minimum pension, Article 46 is applicable to payment of those benefits. The Court considered that the provisions of Regulation No 1408/71 ‘disclose an intention on the part of the [EU] legislator to include non-contributory old-age benefits, such as guaranteed income, within the scope of Article 46’. ‘First, Article 4(2) of the Regulation expressly provides that it is to apply to contributory and non-contributory schemes relating to old-age benefits.’ ‘Secondly, Article 46(2)(a) contains specific provisions for determining the so-called “theoretical” amount of non-contributory benefits’. See the judgment of 22 April 1993, Levatino (C‑65/92, EU:C:1993:149, paragraphs 24 to 26).


35       Article 4(2a) of Regulation No 1408/71 applied to the benefit at issue in that case.


36       Judgment of 21 July 2005, Koschitzki (C‑30/04, EU:C:2005:492, paragraph 28).


37       In this case, the National Insurance Fund.


38       In this case, Poland.


39       In this case, the Swedish legislation administered by the National Insurance Fund.


40       See, by analogy, the judgment of 9 October 1997, Naranjo Arjona and Others (C‑31/96 to C-33/96, EU:C:1997:475, paragraphs 20 and 21).


41       See points 26 and 27 of this Opinion.


42       I would observe that, in paragraph 20 of the judgment of 24 September 1998, Stinco and Panfilo (C‑132/96, EU:C:1998:427), the Court held that ‘the method of calculation referred to in Article 46(2)(a) of Regulation No 1408/71, which relates to the determination of the theoretical amount of pension, is distinct from the situation referred to in Article 50, which relates to the award of a supplementary payment in excess of the minimum payable in application of the normal rules under a particular national legal system’. See, also, the judgment of 17 December 1981, Browning (22/81, EU:C:1981:316, paragraphs 30 and 14). It follows that the possible inclusion of an additional amount or a supplement to the theoretical amount of the pension serving as the basis for the calculation of the pension based on apportionment in order to bring it up to the level of a minimum benefit, pursuant to Article 46(2)(b) of Regulation No 1408/71, is independent of the application of Article 50 of that regulation. The amount of a minimum benefit, such as the Swedish guaranteed pension, is relevant for the purposes of the application of Article 46(2)(b) of Regulation No 1408/71 and of Article 50 of that regulation.


43       Emphasis added.


44       Supposing the guaranteed pension is EUR 100 for a period of insurance of 40 years in Member State A and X has an old age pension of EUR 70 in Member State A (for a period of insurance of 20 years) and of EUR 10 in State B (for a period of insurance of 20 years), X is entitled to a supplement of EUR 20 in Member State A [that is, EUR 100 — (EUR 70 + 10)] in accordance with Article 50 Regulation No 1408/71. If the periods of insurance in Member State B are not taken into account, the supplement is 30.


45      Since Article 50 of Regulation No 1408/71 specifically provides that such income may be taken into account, it is not a provision for reduction of benefit laid down by the national legislation within the meaning of the judgment of 22 October 1998, Conti (C‑143/97, EU:C:1998:501). See point 28 of this Opinion.


46       I would point out that Ms Zaniewicz-Dybeck has periods of insurance totalling 19 years in Poland and 24 years in Sweden. Therefore, the sum of her periods of insurance in the two Member States in question is above the 40 year period laid down by the national legislation at issue concerning the guaranteed pension. It should be noted that the supplement for which Article 50 of Regulation No 1408/71 makes provision is to be paid by the Member State concerned throughout the period of residence of the person concerned in the territory of that State. It follows that Article 50 of Regulation No 1408/71 does not require that any supplement paid pursuant to that provision should be exportable. At the hearing on 9 March 2017, the Kingdom of Sweden stated that the Swedish guaranteed pension was exportable under Swedish law. In my view, the ‘exportability’ of the guaranteed pension under national law does not preclude the application of Article 50 of Regulation No 1408/71 or payment, if appropriate, of a supplement in the territory of that State.


47       See points 26 and 27 of this Opinion.