JUDGMENT OF 31. 3. 1977 - CASE 79/76 FOSSI v BUNDESKNAPPSCHAFT

In Case 79/76 Reference to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht (Federal Social Court) for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocat-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and written procedure

II — Summary of the written observations submitted to the Court

Decision

Costs

I —. Facts and written procedure

II —. Summary of the written observations submitted to the Court

1. By order of 29 June 1976, received at the Court Registry on the following 6 August, the Bundessozialgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 8 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (JO 1958, p. 561) and of Article 3 (1) of Regulation No 1408/71 of the Council 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).

2. The question arose within the context of an action concerning the right of the plaintiff in the main action, an Italian national residing in Italy who worked from 1 June 1942 to 1 July 1943 in a mine in the Sudetenland, which was at that time part of the former German Reich, to a pension payable under German legislation on the ground of total disablement.

3. The question asks whether an Italian national living in Italy who at no time had lived or worked in the territory of the Federal Republic of Germany or of West Berlin, is to be treated, by virtue of Article 8 of Regulation No 3 and of Article 3 (1) of Regulation (EEC) No 1408/71 on the same footing as a German national when applying Paragraph 108 c of the RKG, so far as concerns insurance periods which were completed before 1945 with the Reichsknappschaft (the competent social security institution for mineworkers) under the law of the Reich outside the territory of the Federal Republic of Germany or West Berlin.

4. The reply to be given to the question referred to the Court depends on whether a provision such as Paragraph 108 c of the RKG is covered by Regulation No 3 and Regulation No 1408/71 as legislation on social security.

5. In order to facilitate the economic and social integration of refugees and persons deported who could no longer enjoy their rights to insurance because the competent institutions no longer existed or were situated outside the territory of the Federal Republic of Germany, the Fremdrenten- und Auslandsrentengesetz of 1953 (Law on substitute pensions and pensions awarded to certain categories of persons residing abroad) took responsibility under certain conditions for the rights of the parties concerned, whether or not they were German nationals.

6. The German provision which states that the benefits are not in the nature of social security is not decisive as regards Community law.

7. However, in the light of the facts that the competent insurance institutions to which the persons referred to in the provision in question had been affiliated no longer exist or are situated outside the territory of the Federal Republic of Germany and that the purpose of the German legislation in question is to alleviate certain situations which arose out of events connected with the National Socialist regime and the Second World War and, finally, that the payment of the benefits in question to nationals is of a discretionary nature where such nationals are residing abroad, those benefits are not to be regarded as in the nature of social security.

8. The answer must therefore be that Article 8 of Regulation No 3 and Article 3 (1) of Regulation No 1408/71 do not apply to benefits such as those provided for in Paragraph 108 (c) of the Reichsknappschaftsgesetz in respect of insurance periods completed before 1945 outside the territory of the Federal Republic of Germany and of West Berlin.

9. The costs incurred by the Government of the Federal Republic of Germany, the Government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

On those grounds, THE COURT in answer to the question referred to it by the Bundessozialgericht by order of that court of 29 June 1976, hereby rules: