Solomonic judgement of the ECJ
ECJ clarifies when contribution periods of the host state are to be considered when calculating benefits.
AS/TH – 01/2022
In its judgement (C-866/19) of 21 October 2021, the ECJ ruled that the
respective Member State must take into account all insurance periods relevant
under pension law, including those completed in other European Member States.
However, the pro rata benefit shall be exclusively calculated for the insurance
periods completed under the legislation of the Member State concerned. The same
applies to the determination of the limit of non-contributory periods – in this
form, a special feature of Polish pension insurance law.
The petitioner, who had completed insurance
periods relevant under pension law in both Poland and the Netherlands,
contested the calculation of his retirement pension to be granted by Zakład
Ubezpieczeń Społecznych (ZUS) pursuant to Article 52 para. 1 of Coordination
Regulation (EC) No. 883/04. He appealed against the calculation made, arguing
that the non-contributory periods completed under Polish law should be taken
into greater account when calculating his pension. In this regard, he argued
that the ECJ had already held in the Tomaszewska case (C-440/09) that all
insurance periods, including those in other EU Member States, must be taken
into account when determining the periods required for pension entitlement, in
particular with regard to the limit for non-contributory periods specific to
ZUS filed a cassation appeal against the annulment
of the pension decision to the Polish Supreme Court. It concluded that Article
52 para. 1 sub-para. b of Regulation (EC) No. 883/2004 could be interpreted in
three different ways:
1. Only Polish insurance periods are taken
into account for determining the non-contributory periods to be considered.
2. Contribution periods from other EU
Member States are taken into account and a theoretical pension amount is
calculated for the non-contributory periods. However, the pro rata temporis
principle applies. The non-contributory periods actually included in the
benefit calculation are then calculated as under 1.
3. All national and European contribution
periods are taken into account both for the calculation of the maximum limit of
non-contributory periods to be taken into account and for the actual inclusion
in the calculation of benefits. National and European contribution periods are,
therefore, always to be regarded as fully equivalent.
The proceedings were stayed in order to
refer the matter to the ECJ for a preliminary ruling.
ECJ remains prudent
ECJ stated that the principle of aggregation of all periods must be applied
when calculating the theoretical pension amount to which the person would be
entitled if he or she had completed all insurance periods in Poland. This also
applies to the calculation of the maximum limit of non-contributory periods in
relation to the contribution periods stipulated under Polish law and is aimed
at preventing disadvantages for mobile workers. The principle of aggregation
does not apply to the calculation of the actual pension amount on the basis of
the theoretical pension amount and the ratio of the insurance and residence
period under Polish law to the total insurance period as this would
artificially increase the amount payable by Poland
Therefore, Article 52 para. 1 sub-para. b
of Regulation (EC) No. 883/2004 must be interpreted as meaning that only the
periods completed under national legislation are to be taken into account for
calculating the actual amount. Consequently, the maximum limit for taking into
account non-contributory periods in Poland does not apply.
In the future, national legislation
providing for such a maximum limit for consideration of non-contributory
periods may have to be repealed. However, this is irrelevant for the German
pension insurance since national law does not recognise such maximum limits for
the consideration of non-contributory periods.