JUDGMENT OF 5. 5. 1977 —CASE 104/76 JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ
In Case 104/76 Reference to the Court under Article 177 of the EEC Treaty by the Landessozialgericht Nordrhein-Westfalen (Higher Social Court for North Rhine-Westphalia) for a preliminary ruling in the action 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, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
I — Facts and procedure
II — Written observations submitted to the Court
1. Matters covered by Regulation No 3 (First and third questions)
2. Assimilation of insurance periods (Second, fourth and fifth questions)
3. Persons covered by the assimilation of periods (Second, fourth and fifth questions)
III — Oral procedure
1. Matters covered by the Community regulations
2. Persons covered by the Community regulations
3. Assimilation of insurance periods
Decision
First and third questions (application of Regulation No 3 to the repayment of contributions, relationship with Regulation No 1408/71
Second question (taking into consideration of a generalized insurance scheme)
Fourth and fifth questions (objectives of the social regulations of the Community)
Costs
I —. Facts and procedure
1. Was the right to reimbursement of contributions already contained in Regulations Nos 3 and 4 of the EEC or was the position different from that provided by Regulation (EEC) No 1408/71 with effect from 1 October 1972? Did that regulation merely clarify a legal situation which existed already or did it make provision for the first time for the right to reimbursement of contributions?
2. In the domestic German law contained in paragraphs 1303 and 1323a of the Reichsversicherungsordnung was it necessary for an insurance requirement under the Algemene Ouderdomswet and the Algemene Weduwen- en Wezenwet of the Netherlands to be regarded as compulsory insurance within the meaning of paragraph 1303 (1) of the RVO even from May 1970 and is a German pension insurance institution for that reason debarred from reimbursing contributions under the abovementioned provisions if a German national transfers his residence to the Netherlands?
3. Can Article 2 of Regulation No 3 be interpreted to the effect that the domestic German right of reimbursement of contributions is included in the matters covered by that regulation?
4. Are the relevant EEC regulations primarily intended to serve:
5. Is the principle of the maintenance of rights or affiliations already acquired always to take precedence even over the wish of the beneficiary to have his contributions reimbursed even if, as in the case of the AOW, national law provides for the possibility of exemption from the insurance requirement if an application is submitted?
II —. Written observations submitted to the Court
1. Matters covered by Regulation No 3 (First and third questions)
(a). Unlike Regulation No 1408/71, Regulation No 3 does not contain any express reference to national schemes for reimbursement of contributions: the matter is not raised either in Article 2 (1), which lays down the matters covered by the regulation, or in Article 1 (s), which gives a definition of the concepts of benefits and pensions. Therefore the regulation can be considered as covering rights to the reimbursement of contributions only by inference on the basis of interpretation; such a view is confronted prima facie by the objection that the benefits listed in Article 2 (1) all depend upon the materialization of the risk, whereas the reimbursement of contributions is the consequence of the fact that the insurance relationship is retroactively terminated.
(b). However, for the purposes of defining the general ambit of Regulation No 3, the concept of benefits could be given an extensive interpretation.
(c). An extensive interpretation of Article 2 (1) of Regulation No 3 is also justified in the light of Regulation No 1408/71, which has been in force since 1 October 1972. Article 4 (1) thereof, defining the matters covered by the regulation, corresponds, except for some formal amendments, word for word to Article 2 (1) of Regulation No 3, and refers to the same schemes and legal provisions. The right to the reimbursement of contributions is brought within the ambit of Article 4 (1) of Regulation No 1408/71 by express provision in Article 10 (2) of that regulation. This observation is confirmed by the definition of the concept of benefits in Article 1 (t).
(d). At the least, the inclusion of the reimbursement of contributions in the matters covered by Regulation No 3 is not contrary to the wording of Article 2 (1) of that regulation.
2. Assimilation of insurance periods (Second, fourth and fifth questions)
(a). The purpose of the aggregation of the insurance periods completed by a worker under the legislation of several Member States, provided for by Article 27 of Regulation No 3, is to prevent the migrant worker from being treated unfavourably in relation to other workers by virtue of his having exercised his right of freedom of movement; such aggregation applies only in clearly defined cases, when the national legislation alone does not enable the objective of the creation of freedom of movement for workers to be attained.
(b). Nor does the objective of Regulation No 3 of ensuring freedom of movement for workers by the coordination of social security schemes justify the maintenance of rights or guarantees acquired on the basis of the payment of compulsory contributions. The reimbursement of contributions, at the request of an insured person who has ceased to be a member of the insurance scheme, tends rather to favour freedom of movement, even if in the long term it may objectively be contrary to the best interests of the worker. The fact that a migrant worker may be able to derive advantages therefrom which the national legislature did not envisage does not follow from the interpretation of Community law, but from the co-existence of different social insurance schemes. Moreover, it is open to the national legislature to make the repayment of contributions subject to the condition that the insurance requirement in another Member State should also come to an end.
(c). This interpretation of Regulation No 3 does not conflict with Article 10 (2) of Regulation No 1408/71. That paragraph brings the legislation of the Member States on the reimbursement of contributions into alignment in so far as that legislation regards the fact of ceasing to be subject to compulsory insurance as the decisive factor in the retroactive termination of the insurance relationship. It gives a Community content to the concept of an insurance requirement laid down by national law, by putting national and foreign compulsory insurance for workers on an equal footing. This equality of treatment is in the best interests of the migrant worker and fulfils the social policy aims of those Member States under whose legislation reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance.
(d). The reimbursement of contributions by a single Member State acting in isolation is not ipso facto contrary to the principle of aggregation laid down by the Community regulations concerning social security and by Article 51 of the Treaty. That might be the case if provisions of internal law provided for the termination, with retroactive effect, of the insurance relationship without the consent of the worker concerned or against his wishes.
3. Persons covered by the assimilation of periods (Second, fourth and fifth questions)
(a). This observation follows both from the general definition of the persons covered by Regulation No 3 laid down in Article 4 (1) thereof, and from the scope and purpose of any arrangements of that kind; it is confirmed by the wording of Article 10 (2) of Regulation No 1408/71.
(b). The same definition of the persons covered by assimilation arrangements may be deduced from the close relationship with the aggregation rule laid down by Article 27 of Regulation No 3. The purpose of that rule is to coordinate social security schemes applicable to employed persons; the regulation does not seek to establish a more extensive coordination, applicable to all inhabitants. Nor does the appellant have the status of assimilated worker which could bring her within any given assimilation arrangements. Article 1 (a) of Regulation No 1408/71, which defines the concept of an employed person as broadly as possible, requires that residents covered as such by compulsory insurance should have the status of employed persons.
4. The questions referred by the national court should be answered as follows:
III —. Oral procedure
1. Matters covered by the Community regulations
(a). According to Article 2 (1) of Regulation No 3, that regulation applies to all legislation governing invalidity, old-age and death benefits, thus to the whole of Book 4 of the German social insurance regulation, which also governs the scheme for reimbursement of contributions. Article 1 (b) of Regulation No 3 confirms that that regulation relates to social security schemes and branches of social security in general and that one specific benefit cannot be isolated therefrom.
(b). This extensive interpretation is in accordance with Regulation No 1408/71. Although Article 4 of that regulation does not add to the matters covered by the regulation, Article 10 (2) thereof includes provisions governing the scheme for reimbursement of contributions.
2. Persons covered by the Community regulations
(a). With regard to Article 4 (1) of Regulation No 3, according to which the regulation applies to employed persons or assimilated workers who are or have been subject to the legislation of one or more of the Member States, it suffices to observe that the appellant in the main action has been subject, as a worker, to the legislation of the Federal Republic of Germany, and that she retains her status of worker, irrespective of whether or not she has, in another State of residence, resumed activities as an employed person which are subject to compulsory contributions, or of whether the previous insurance is continued in the form of a general insurance applying to the whole of the population, or even of whether she is in employment which is exempt from the obligation to pay contributions.
(b). This conclusion is confirmed by Article 9 (1) of Regulation No 3, according to which, for the purposes of admission to compulsory insurance, the insurance periods and assimilated periods completed under the legislation of Member States other than the State of residence are, in so far as is necessary, to be reckoned as insurance periods completed under the legislation of that State. That provision is meaningless unless the status of worker is maintained.
3. Assimilation of insurance periods
(a). In favour of a worker who has been successively or alternately subject to the legislation of two or more Member States, Article 27 of Regulation No 3 provides that the insurance periods and assimilated periods completed under the legislation of each of the Member States are to be aggregated. The purpose of that provision is to prevent the worker from suffering disadvantages with regard to social security, owing to the fact that he has changed his State of residence. In regard to the aggregation rule, the nature of the insurance periods is immaterial; the decisive factor is the fact that they were completed under the legislation of various States. In this instance, aggregation should be carried out in Germany only in respect of old-age or death benefits; however, in that case there would no longer be any justification for a reimbursement of contributions, since there are grounds for such reimbursement only with respect to those insured persons who, for want of compulsory or optional contributions, cannot assert a right to benefits on the basis of insurance periods previously completed.
(b). According to Article 10 (2) of Regulation No 1408/71, where under the legislation of a Member State reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition is not to be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State. In this connexion as well, the status of worker is decisive. This view is in the worker's best interests and corresponds to the social policy objectives of the Member States; nor does it prejudice the principle of freedom of movement. If a worker moves to a Member State in which there is no general insurance which is valid for the whole of the population, no compulsory insurance can stand in the way of an application for the reimbursement of contributions; if, on the contrary, he moves to a State in which such general insurance exists, that fact has no consequences other than those which are linked to the compulsory nature of the insurance to which he is subject as a worker in his own State. Thus the principle of equality of treatment is not put in issue.
1. By order of 14 October 1976, which was received at the Court Registry on 27 October 1976, the Landessozialgericht Nordrhein-Westfalen (Higher Social Court for the Land of North Rhine-Westphalia) submitted for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, several questions relating to the interpretation of certain provisions of the Community regulations concerning social security, namely Regulation No 3 of 25 September 1958 (JO 1958, p. 561) and Regulation No 1408/71 of 14 June 1971 (OJ, English Special Edition 1971 (II), p. 416), with a view to determining their effect, if any, on the reimbursement of social security contributions in the event of the termination of a compulsory insurance relationship.
2. It appears from the file on the case that, following her marriage on 5 March 1965, the appellant in the main action obtained under the German legislation then in force the reimbursement of the contributions which she had previously paid, and thereafter remained a member of the German invalidity and old-age pension insurance scheme for the period from 1 April 1965 to 9 May 1968.
3. By a decision of 17 July 1970, the competent social security institution, the Landesversicherungsanstalt Rheinprovinz, rejected this application on the ground that since the person concerned was henceforward compulsorily subject to the general pension insurance scheme of the Netherlands, pursuant to the Netherlands General Laws on Old-Age Insurance (Algemene Ouderdomswet, hereinafter referred to as the AOW) and on Widows' and Orphans' Insurance (Algemene Weduwen- en Wezenwet, hereinafter referred to as the AWW), she could not be considered to be free from any membership obligation within the meaning of the German legislation.
4. An application by the person concerned was rejected by the court at first instance, but allowed by the Landessozialgericht on appeal, whereupon the social security institution appealed on a point of law to the Bundessozialgericht.
5. In substance, the first question asks whether the system of reimbursement of contributions was already included in the matters covered by Regulation No 3 or whether the position was different from that subsequently provided by Regulation No 1408/71; and whether in this connexion the latter regulation merely clarified the state of the law which existed already or whether it made provision for the first time for the system of reimbursement of contributions.
6. The first thing which must be done in order to answer these questions is to examine, with regard to the reimbursement of social security contributions, the scope of Regulation No 3, which was applicable at the time of the facts which gave rise to this action.
7. The same ideas underlie Regulation No 1408/71, which in the meantime has replaced Regulation No 3.
8. Therefore the answer to the questions referred to the Court should be that the reimbursement of social security contributions came within the ambit of the general provisions of Regulation No 3, by virtue of the determination under Article 2 of the matters covered by that regulation.
9. In substance, the second question asks whether, before Regulation No 1408/71 entered into force, an insurance scheme such as that which exists in the Netherlands in the form of the AOW and the AW had to be taken into consideration for the purpose of deciding the question whether the person concerned had satisfied the condition of ceasing to be in any way subject to compulsory social insurance, as stipulated by German legislation.
10. It follows from the foregoing that prior to the entry into force of Regulation No 1408/71, that is, under the system laid down by Regulation No 3, there was no provision of Community law which would have prevented reimbursement of contributions pursuant to the legislation of a Member State under which such reimbursement is conditional upon the cessation of any obligation to be a member of the social security institution of that State.
11. The fourth question asks whether the relevant EEC regulations are primarily intended to serve:
12. The purpose of the provisions of Article 51 of the EEC Treaty and of the regulations adopted to give it effect is to eliminate any disadvantages which workers might suffer as a result of the fact that their social security record was completed under systems laid down by the national legislation of different States.
13. Therefore the answer to the questions referred to the Court should be that, under the system laid down by Regulation No 3, the objectives pursued by the Treaty and by the regulation itself did not justify the refusal of a reimbursement of social security contributions to a person who could claim the benefit of such reimbursement under a national legislation.
14. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
On those grounds, THE COURT in answer to the questions referred to it by the Landessozialgericht Nordrhein-Westfalen by order of 14 October 1976, hereby rules:
1 The reimbursement of social security contributions comes within the ambit of the general provisions of Regulation No 3, by virtue of the determination under Article 2 of the matters covered by that regulation.
2 The same interpretation must be given to Article 4 of Regulation No 1408/71. The application of the specific rule in Article 10 (2) must, however, remain limited to the period covered by that regulation.
3 Provided that the conditions laid down by the applicable national legislation are satisfied, Regulation No 3 does not prevent the reimbursement of social security contributions by reason of the fact that the person concerned falls within the ambit of another social security scheme following the transfer of his residence to another Member State.
4 Under the system laid down by Regulation No 3, the objectives pursued by the Treaty and by the regulation itself did not justify the refusal of a reimbursement of social security contributions to a person who could claim the benefit of such reimbursement under a national legislation.