Ts. E. S. v Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut

Contents

Judgment of the Court (Sixth Chamber)23 April 2026^note(Reference for a preliminary ruling — Social security — Migrant workers — Regulation (EC) No 883/2004 — Unemployment benefits — Calculation — Article 62(1) and (2) — Last activity as an employed or self-employed person pursued under the legislation of a Member State — Article 62(3) — Residence of the recipient of unemployment benefits in a Member State other than the competent Member State — Calculation rule which does not take into account exclusively the salary or professional income received by the person concerned in respect of his or her last activity as an employed or self-employed person — National legislation providing for a different calculation rule for persons who carried out their last employment in another Member State)In Case C‑116/25,REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad – Blagoevgrad (Administrative Court, Blagoevgrad, Bulgaria), made by decision of 3 February 2025, received at the Court on 4 February 2025, in the proceedingsTs. E. S.vDirektor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Blagoevgrad,THE COURT (Sixth Chamber),composed of I. Ziemele, President of the Chamber, F. Biltgen (Rapporteur), President of the First Chamber, acting as Judge of the Sixth Chamber, and A. Kumin, Judge,Advocate General: T. Ćapeta,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Ts. E. S., by D. Grozdanova and K. Spiriev, advokati,– the Bulgarian Government, by T. Mitova and T. Tsingileva, acting as Agents,– the European Commission, by B.-R. Killmann and G. Koleva, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 62(1) and (2) 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 (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’).

2The request has been made in proceedings between Ts. E. S., a Bulgarian national, and the Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Blagoevgrad (Director of the Territorial Division of the National Social Security Institute, Blagoevgrad, Bulgaria), concerning the amount of unemployment benefits which the latter granted her pursuant to a new rule introduced in Bulgarian law for the purposes of calculating unemployment benefits acquired under the legislation of another Member State.

Legal context

European Union law

3Recitals 1, 4 and 45 of Regulation No 883/2004 state as follows:(1) The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment.…(4) It is necessary to respect the special characteristics of national social security legislation and to draw up only a system of coordination.…(45) Since the objective of the proposed action, namely the coordination measures to guarantee that the right to free movement of persons can be exercised effectively, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of that action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. …’

4Article 1 of the regulation, entitled ‘Definitions’, provides:‘…(j) “residence” means the place where a person habitually resides;…’

5Article 62 of that regulation, entitled ‘Calculation of benefits’, provides:1. The competent institution of a Member State whose legislation provides for the calculation of benefits on the basis of the amount of the previous salary or professional income shall take into account exclusively the salary or professional income received by the person concerned in respect of his/her last activity as an employed or self-employed person under the said legislation.2. Paragraph 1 shall also apply where the legislation administered by the competent institution provides for a specific reference period for the determination of the salary which serves as a basis for the calculation of benefits and where, for all or part of that period, the person concerned was subject to the legislation of another Member State.3. By way of derogation from paragraphs 1 and 2, as far as the unemployed persons covered by Article 65(5)(a) are concerned, the institution of the place of residence shall take into account the salary or professional income received by the person concerned in the Member State to whose legislation he/she was subject during his/her last activity as an employed or self-employed person, in accordance with the Implementing Regulation.’

6Article 65 of that regulation, entitled ‘Unemployed persons who resided in a Member State other than the competent State’, provides:‘…2. A wholly unemployed person who, during his/her last activity as an employed or self-employed person, resided in a Member State other than the competent Member State and who continues to reside in that Member State or returns to that Member State shall make himself/herself available to the employment services in the Member State of residence. Without prejudice to Article 64, a wholly unemployed person may, as a supplementary step, make himself/herself available to the employment services of the Member State in which he/she pursued his last activity as an employed or self-employed person.An unemployed person, other than a frontier worker, who does not return to his/her Member State of residence, shall make himself/herself available to the employment services in the Member State to whose legislation he/she was last subject.3. The unemployed person referred to in the first sentence of paragraph 2 shall register as a person seeking work with the competent employment services of the Member State in which he/she resides, shall be subject to the control procedure organised there and shall adhere to the conditions laid down under the legislation of that Member State. If he/she chooses also to register as a person seeking work in the Member State in which he/she pursued his/her last activity as an employed or self-employed person, he/she shall comply with the obligations applicable in that State.4. The implementation of the second sentence of paragraph 2 and of the second sentence of paragraph 3, as well as the arrangements for exchanges of information, cooperation and mutual assistance between the institutions and services of the Member State of residence and the Member State in which he/she pursued his/her last occupation, shall be laid down in the Implementing Regulation.5.(a) The unemployed person referred to in the first and second sentences of paragraph 2 shall receive benefits in accordance with the legislation of the Member State of residence as if he/she had been subject to that legislation during his/her last activity as an employed or self-employed person. Those benefits shall be provided by the institution of the place of residence.…’

Bulgarian law

7Article 54a, entitled ‘Entitlement to unemployment benefits’, of the Kodeks za sotsialno osiguryavane (Social Insurance Code) (DV No 110 of 17 December 1999), as amended (DV No 67 of 9 August 2024), in force from 13 August 2024 (‘the KSO’), provides:‘Persons entitled to unemployment benefit shall be persons in respect of whom insurance contributions to the “Unemployment” Fund have been paid or are due for at least 12 of the last 18 months prior to the termination of the insurance and who:1. are registered as unemployed with the Employment Agency;2. have not acquired entitlement to a pension on the basis of periods of insurance and age in the Republic of Bulgaria or to an old-age pension in another State, or do not receive a pension on the basis of periods of insurance and age in a reduced amount pursuant to Article 68a or an occupational pension pursuant to Article 168;3. do not perform an employment activity which is subject to compulsory insurance under this code or under the legislation of another State, with the exception of the persons referred to in Article 114a(1) of the Kodeks na truda [(Labour Code) (DV No 26 of 1 April 1986 and DV No 27 of 4 April 1986)].’

8Article 54b of the KSO, entitled ‘Amount of the unemployment benefit’, provides, in paragraphs 1, 5 and 8:(1) The daily amount of unemployment benefit shall be 60% of the average daily salary or the average daily income in respect of which insurance contributions have been paid or are due to the “Unemployment” Fund in the last 24 calendar months preceding the month in which the insurance terminated, and may not be less than the minimum or more than the maximum daily amount of unemployment benefit.…(5) The monthly amount of unemployment benefit shall be calculated by multiplying the daily rate determined pursuant to paragraph 1 by the number of working days in the relevant month.…(8)Where the period referred to in paragraph 1, which is decisive for the calculation of the average daily salary or the average daily income subject to compulsory insurance, or the month in which the insurance terminated includes periods of insurance accrued under the legislation of a State to which the European regulations on the coordination of social security systems apply, the following shall be taken into account in the determination of the amount of unemployment benefit:1. the income received by the person during his or her last employment;2. the total income in the Republic of Bulgaria, … and the income in other States to which the European regulations on the coordination of social security systems apply, for the last 24 calendar months preceding the month in which the insurance terminated.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9The applicant in the main proceedings, Ts. E. S., is a Bulgarian national who resides permanently in Bulgaria, where she has her centre of interest.

10Until the end of May 2024, she was employed in Bulgaria. In June 2024, she moved temporarily to Spain where, for a period between 7 June and 13 July 2024, that is to say, a total of 28 days, she was employed as a seasonal worker with a Spanish employer, for which she received a salary of EUR 2 590.80.

11With effect from 14 July 2024, the applicant in the main proceedings was wholly unemployed and returned to Bulgaria, where she submitted, on 2 August 2024, an application for unemployment benefit to the competent Bulgarian authorities.

12By decision of 13 September 2024, the Teritorialno podelenie na Natsionalnia osiguritelen institut – Blagoevgrad (Territorial Division of the National Social Security Institute, Blagoevgrad, Bulgaria) granted that application and granted the applicant in the main proceedings the right to unemployment benefit in the daily amount of 29.71 leva (BGN) (approximately EUR 15) for the period from 25 July 2024 to 22 July 2025.

13That amount was determined on the basis of all the income subject to contribution received by the applicant in the main proceedings during the last 24 calendar months preceding the month in which her contributions ceased, that is to say, for the period from 1 July 2022 to 13 July 2024, namely a total amount of BGN 25 154.03 (approximately EUR 12860), including both the salaries received during the period of employment and contribution in the context of her last employment in Spain and any other income subject to contributions relating to previous periods of employment and contribution completed in Bulgaria during that 24-month period.

14Taking account of the fact that, during the last 24 calendar months preceding the month in which her contributions ceased, the applicant in the main proceedings completed periods of employment and contributions under both Bulgarian legislation and under the legislation of another Member State, the Territorial Division of the National Social Security Institute, Blagoevgrad, applied Article 54b(8) of the KSO. That provision, which entered into force on 13 August 2024, derogates from the method of calculating unemployment benefits laid down in Article 54b(1) of the KSO applicable to persons who have pursued, during that 24-month period, activities as employed or self-employed persons only in Bulgaria.

15Following the rejection, by decision of the Director of the Territorial Division of the National Social Security Institute, Blagoevgrad, of 16 October 2024, of her administrative appeal against the decision referred to in paragraph 12 of the present judgment, the applicant in the main proceedings brought an action before the Administrativen sad – Blagoevgrad (Administrative Court, Blagoevgrad, Bulgaria), the referring court, in support of which she submits that Article 62(3) of Regulation No 883/2004, which provides for ‘account to be taken’ of the salary received by the person concerned in the Member State to whose legislation he or she was subject during his or her last activity as an employed person, is not applicable to her. She submits, by contrast, that her situation falls within the scope of Article 62(1) and (2) of that regulation, which requires that, for the purpose of calculating the amount of unemployment benefit, account must be taken ‘exclusively’ of the salary received in respect of the last employment of the person concerned.

16The referring court states that, until the entry into force of the new rule relating to the calculation of unemployment benefits acquired under the legislation of another Member State, set out in Article 54b(8) of the KSO, Article 62(1) and (2) of Regulation No 883/2004 has been interpreted consistently in national case-law according to which the calculation of unemployment benefit must be based exclusively on the salary or income received in respect of the last activity as an employed or self-employed person. However, since the adoption of that new rule, some national courts have departed from previous case-law and have held that, since Regulation No 883/2004 is intended only to coordinate social security schemes without establishing a general social security scheme, the Member States remain competent to set the conditions for entitlement to social security benefits. Consequently, those courts now consider that Article 62(1) and (2) of that regulation does not require Member States to determine the amount of unemployment benefits by taking into account exclusively the salary or income received in respect of the last activity as an employed or self-employed person, irrespective of the legislation of the Member State under which the activity as an employed or self-employed person was carried out.

17The referring court is uncertain as to whether Article 54b(8) of the KSO is compatible with Article 62(1) and (2) of Regulation No 883/2004.

18First, the Court held, in paragraphs 32 to 37 of the judgment of 23 January 2020, Bundesagentur für Arbeit (C‑29/19, EU:C:2020:36), that that provision of Regulation No 883/2004, read in the light of the right to freedom of movement for workers, requires, for the calculation of unemployment benefits, account to be taken exclusively of the salary received in respect of the last activity as an employed person pursued by a worker who has been subject to the legislation of more than one Member State.

19Secondly, by establishing a rule for calculating unemployment benefits which derogates from that laid down in Article 54b(1) of the KSO, where part or all of the reference period has been completed under the legislation of another Member State, Article 54b(8) of the KSO is liable to be incompatible with Article 62(1) and (2) of Regulation No 883/2004.

20In those circumstances, the Administrativen sad Blagoevgrad (Administrative Court, Blagoevgrad) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 62(1) and (2) of [Regulation No 883/2004] be interpreted as allowing the calculation of the amount of unemployment benefit not to be determined exclusively by the salary received in the last period of employment, where the legislation of the Member State administered by the competent institution provides for a specific reference period for the determination of the base (basis) for the calculation of the benefits and where the last period of employment is shorter than the specific reference period but all or part of the periods of employment were completed under the legislation of another Member State?(2) Must Article 62(1) and (2) of [Regulation No 883/2004] be interpreted as allowing legislation of a Member State which provides for different detailed rules for the calculation of the amount of unemployment benefit where the requisite periods of employment pursuant to that legislation have been completed entirely under that legislation and where all or part of the requisite periods of employment have been completed under the legislation of another Member State?’

Consideration of the questions referred

Preliminary observations

21By its two questions, the referring court asks the Court for guidance as to the interpretation of Article 62(1) and (2) of Regulation No 883/2004.

22In that regard, it should be noted that it is apparent from the very wording of that provision that it lays down a rule for calculating unemployment benefits applicable to the situation of a person who has completed his or her last activity as an employed or self-employed person under the legislation of the competent institution of a Member State.

23As regards unemployment benefits to which that person is entitled from the competent institution of that Member State, Article 62(1) and (2) of Regulation No 883/2004 provides that the competent institution of a Member State whose legislation provides that the calculation of benefits is to be based on the amount of the salary or previous professional income is to take into account ‘exclusively the salary or professional income received by the person concerned in respect of his/her last activity as an employed or self-employed person’; that calculation rule also applies where the legislation applied lays down a reference period.

24By contrast, as regards wholly unemployed persons who, during their last activity as an employed or self-employed person, resided in a Member State other than the competent Member State and continue to reside or return to the same Member State, for the purposes of the first and second sentences of Article 65(2) of Regulation No 883/2004, as referred to in Article 65(5)(a) thereof, it must, accordingly, be specified that Article 62(3) of that regulation provides for a derogation from the calculation rules laid down in paragraphs 1 and 2 of Article 62.

25In the present case, it is apparent from the order for reference, first, that the applicant in the main proceedings completed her last activity as an employed person under legislation other than that under which she receives unemployment benefits. She pursued her last activity as an employed person in Spain, under the legislation of that Member State, whereas she was recognised as being entitled to unemployment benefits in Bulgaria under the legislation of that Member State.

26Second, the referring court specifies that the applicant in the main proceedings is a permanent resident in Bulgaria, where her centre of interest is situated. There is nothing in the file submitted to the Court to suggest that the applicant in the main proceedings transferred her residence from Bulgaria to Spain during the period corresponding to her last activity as an employed person or after the termination of her employment.

27In those circumstances, it appears, subject to the checks which it is for the referring court to carry out, that, when she pursued her last activity as an employed person in Spain, the applicant in the main proceedings resided in Bulgaria and continued to reside in the territory of that Member State after ceasing that activity as an employed person, namely in a Member State other than that of her last employment, with the result that the calculation rule laid down in Article 62(3) of Regulation No 883/2004 is capable of applying to her situation.

28It is settled case-law that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court may also find it necessary to consider provisions of EU law to which the national court has not referred in its questions (judgments of 20 March 1986, Tissier, 35/85, EU:C:1986:143, paragraph 9, and of 11 December 2025, Staatssecretaris Jeugd, Preventie en Sport (Electronic Cigarettes), C‑665/24, EU:C:2025:960, paragraph 37).

29Consequently, the Court holds that, by its two questions, the referring court is asking the Court for an interpretation of Article 62(3) of Regulation No 883/2004.

The first question

30By its first question, the referring court asks, in essence, whether Article 62(3) of Regulation No 883/2004, read in conjunction with the first and second sentences of Article 65(2) and Article 65(5)(a) of that regulation, must be interpreted as precluding legislation of a Member State, as the Member State of residence, under which the amount of unemployment benefits payable to a person who has completed part or all of the reference period provided for by the legislation of that Member State for the purposes of calculating unemployment benefits acquired under the legislation of another Member State, that is to say, the Member State of last employment, is not determined by taking into account ‘exclusively’ the salary or professional income received by that person in respect of his or her last activity as an employed or self-employed person pursued under the legislation of that other Member State.

31In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 6 October 1982, Cilfit, 283/81, EU:C:1982:335, paragraph 20, and of 11 December 2025, GKV-Spitzenverband, C‑743/23, EU:C:2025:954, paragraph 41).

32In the first place, Article 62(3) of Regulation No 883/2004 provides that, for the purposes of calculating unemployment benefits, the institution of the place of residence ‘shall take into account the salary or professional income received by the person concerned in the Member State to whose legislation he/she was subject during his/her last activity as an employed or self-employed person’.

33In the second place, Article 62(1) and (2) of that regulation provide, as recalled in paragraph 23 of the present judgment, that, for the purposes of that calculation, the competent institution of the Member State of last employment is to take into account ‘exclusively the salary or professional income received by the person concerned in respect of his/her last activity as an employed or self-employed person’, and that that calculation rule also applies where the legislation applied by the competent institution lays down a reference period.

34Consequently, while Article 62(1) of that regulation requires the competent institution of the Member State of last employment to take into account exclusively the salary or professional income received by the person concerned in respect of his or her last activity as an employed or self-employed person, the absence of such a clarification in Article 62(3) means that the institution of the place of residence is required to take into account, without being required to do so ‘exclusively’, the salary or professional income received by an unemployed person referred to in Article 65(5)(a) of that regulation in respect of his or her last activity as an employed or self-employed person.

35In the third place, as is apparent from recital 4 of Regulation No 883/2004, that regulation respects the specific characteristics of national social security legislation and is designed solely to develop a system of coordination. That objective does not mean that Article 62(3) of that regulation must be interpreted as requiring account to be taken exclusively of the salary or professional income received by the person concerned in respect of his or her last activity as an employed or self-employed person for the purposes of calculating benefits by the Member State of residence, despite the wording of the provision and the context of which it is part, as set out in paragraphs 32 to 34 of the present judgment.

36In any event, an unemployed person referred to in Article 65(5)(a) of Regulation No 883/2004 cannot rely, before the authorities of his or her State in which he or she resides, on the Court’s interpretation of paragraphs 1 and 2 of Article 62 of that regulation in the judgment of 23 January 2020, Bundesagentur für Arbeit (C‑29/19, EU:C:2020:36), to which the referring court refers in its request for a preliminary ruling. The case which gave rise to that judgment concerned a worker falling within the scope of that regulation who resided in the Member State in which he had last pursued a professional activity and under whose legislation he was receiving unemployment benefit. Such a situation fell within the scope of the calculation rule set out in Article 62(1) and (2) of that regulation and is therefore different from that of the applicant in the main proceedings.

37Having regard to all the foregoing considerations, the answer to the first question is that Article 62(3) of Regulation No 883/2004, read in conjunction with the first and second sentences of Article 65(2) and Article 65(5)(a) of that regulation, must be interpreted as not precluding legislation of a Member State, as the Member State of residence, under which the amount of unemployment benefits payable to a person who has completed part or all of the reference period provided for by the legislation of that Member State for the purposes of calculating unemployment benefits acquired under the legislation of another Member State, that is to say, the Member State of last employment, is not determined by taking into account ‘exclusively’ the salary or professional income received by that person in respect of his or her last activity as an employed or self-employed person pursued under the legislation of that other Member State.

The second question

38By its second question, the referring court asks, in essence, whether Article 62 of Regulation No 883/2004 must be interpreted as precluding national legislation providing, for the purposes of calculating unemployment benefits, for different rules depending on whether unemployed persons have completed the entire reference period under national legislation or have completed part or all of that reference period under the legislation of another Member State.

39In that connection, it is apparent from the order for reference that Article 54b(8) of the KSO provides, first, that the reference period includes both periods of employment and contribution acquired under national legislation and those acquired under the legislation of another Member State and, second, that, where that reference period includes periods of employment and of contribution acquired under the legislation of another Member State, for the purposes of determining the amount of unemployment benefits, account is to be taken of income received in respect of the last employment and income received under Bulgarian legislation and the legislation of any other Member State during the last 24 calendar months preceding the month in which the insurance terminated.

40The specific rules laid down in national legislation, such as that at issue in the main proceedings, in respect of persons who have exercised their right to freedom of movement and whose situation falls within the scope of the calculation rule set out in Article 62(3) of Regulation No 883/2004 take into account both periods of employment completed under national legislation and those completed under the legislation of another Member State, in compliance with the objective flowing from recitals 1 and 45 of that regulation of ensuring the effective exercise of the right to freedom of movement for persons. They also ensure, in accordance with Article 62(3), that account is taken of the salary or professional income received from the last activity as an employed or self-employed person pursued under the legislation of another Member State.

41Having regard to the foregoing, the answer to the second question is that Article 62 of Regulation No 883/2004 must be interpreted as not precluding legislation of a Member State providing, for the purposes of calculating unemployment benefits, for different rules depending on whether unemployed persons have completed the entire reference period under the legislation of that State or have completed part or all of that reference period under the legislation of another Member State.

Costs

42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Sixth Chamber) hereby rules:

1.Article 62(3) 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, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, read in conjunction with the first and second sentences of Article 65(2) and Article 65(5)(a) of Regulation No 883/2004, as amended,must be interpreted as not precluding legislation of a Member State, as the Member State of residence, under which the amount of unemployment benefits payable to a person who has completed part or all of the reference period provided for by the legislation of that Member State for the purposes of calculating unemployment benefits acquired under the legislation of another Member State, that is to say, the Member State of last employment, is not determined by taking into account ‘exclusively’ the salary or professional income received by that person in respect of his or her last activity as an employed or self-employed person pursued under the legislation of that other Member State.

2.Article 62 of Regulation No 883/2004, as amended by Regulation No 988/2009,must be interpreted as not precluding legislation of a Member State providing, for the purposes of calculating unemployment benefits, for different rules depending on whether unemployed persons have completed the entire reference period under the legislation of that State or have completed part or all of that reference period under the legislation of another Member State.