Judgment of the Court (First Chamber) of 16 May 2013 (request for a preliminary ruling from the Sąd Apelacyjny — Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku (Poland)) — Janina Wencel v Zakład Ubezpieczeń Społecznych w Białymstoku

(Case C-589/10) (1)

(Article 45 TFEU - Regulation (EEC) No 1408/71 - Article 10 - Old-age benefits - Habitual residence in two different Member States - A survivor’s pension received in one of those States and a retirement pension in the other - Withdrawal of one of those benefits - Recovery of benefits to which it is alleged the recipient was not entitled)

2013/C 225/05

Language of the case: Polish

Referring court

Sąd Apelacyjny — Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku

Parties to the main proceedings

Applicant: Janina Wencel

Defendant: Zakład Ubezpieczeń Społecznych w Białymstoku

Re:

Request for a preliminary ruling — Sąd Apelacyjny w Białymstoku — Interpretation of Articles 20(2) TFEU and 21 TFEU, as well as Article 10 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) — Old-age benefits — Waiving of residence clauses — Prohibition on withdrawing a benefit on account of the fact that the recipient resides in a Member State other than that in which the institution responsible for payment is established — European Union citizen who has been resident in two Member States contemporaneously, without opting for a single domicile, and who receives a survivor’s pension in one State and an old-age pension in the other State — National legislation allowing, in such a case, review of the right to the pension and repayment of the pension paid during the last three years

Operative part of the judgment

Article 10 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended most recently by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008, must be interpreted as meaning that, for the purposes of the application of the regulation, a person cannot have simultaneously two habitual residences in two different Member States.

Under the provisions of Regulation No 1408/71, in particular Articles 12(2) and 46a, the competent institution of a Member State cannot, in circumstances such as those in the main proceedings, legitimately withdraw, retroactively, the entitlement to a retirement pension of the person concerned and require that person to repay any pension to which it is alleged he was not entitled on the ground that he receives a survivor’s pension in another Member State in whose territory he has also been resident. However, the amount of the retirement pension paid in the first Member State may be reduced, up to the limit of the amount of the benefits received in the other Member State, by virtue of the application of any national rule precluding the cumulation of benefits.

Article 45 TFEU must be interpreted as not precluding, in circumstances such as those in the main proceedings, a decision requiring the amount of the retirement pension paid in the first Member State to be reduced, up to the limit of the benefits received in the other Member State, by virtue of the application of any rule precluding the cumulation of benefits, provided that decision does not lead, in respect of the recipient of those benefits, to an unfavourable situation in comparison with that of a person whose situation has no cross-border element and, where such a disadvantage is established, provided that it is justified by objective considerations and is proportionate to the legitimate objective pursued by national law, which it falls to the national court to verify.

(1)  OJ C 89, 19.3.2011.