C-68/69
ECLI:EU:C:1970:24
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JUDGMENT OF THE COURT 14 APRIL 19701
Bundesknappschaft y Elisabeth Brock2 (Reference for a preliminary ruling by the Bundessozialgericht Kassel)
Case 68/692
Summary
1. Measures adopted by Community institutions — Amendment of an earlier provision — Situations arising under the latter — Future effects — Application of the amending rule
2. Social security for migrant workers. — German legislation — Application to pensions falling due with effect from 1 January 1964 (Regulation No 3, Annex G/I - Β, (1) Regulation EEC No 130/63, Article 6)
3. Social security for migrant workers — Pensions — Automatic review under national law — Permissibility — Procedures (Regulation No 3, Article 53)
1. Amending legislation applies, except 3. Both in its new and previous versions where otherwise provided, to the effects Regulation No 3 provides for a review in the future of situations which have of pensions only at the request of the arisen under the law as it stood before persons concerned. There is, however, amendment. nothing in Community rules to prevent an automatic review under national law, 2. The procedure introduced by paragraph if its provisions are more favourable to (1) of Annex G/I-B to Regulation No 3, insured persons. In such circumstances as amended by Article 6 of Regulation it is for the national legislative system to EEC No 130/63, applies to pensions and determine the effects of this more arrears of pensions which have fallen due favourable treatment without however as from 1 January 1964, even if these adversely affecting the rights which the these pensions are paid in respect of risks insured person derives directly from which materialized before that date. Regulation No 3.
In Case 68/69
Reference to the Court under Article 177 of the EEC Treaty by the Bundessozial gericht, Kassel, for a preliminary ruling in the action pending before that court between
1 — Language of the Case: German. 2 — CMLR.
judgment of 14. 4. 1970 — case 68/69
Bundesknappschaft, Bochum,
and
Elisabeth Brock, 24, Harsefelder Straße, Stade, on the interpretation of certain provisions of Regulation No 3 of the Council of the EEC of 25 September 1968.
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß and J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure injury or other circumstances mentioned in the said Article 57 insurable employment The facts of the case may be summarized as has been interrupted. follows : In order that these interrupted periods may A mine-worker's pension in Germany is be taken into account the person concerned determined according to the number of must however have paid contributions for contribution periods. at least one half of the period from the date To these actual contribution periods other of affiliation to the insurance scheme to the periods may be added which in certain' date of the event giving rise to the pension circumstances are also taken into account (Halbdeckung) (50 per cent cover) and for in determining the amount of the pension. at least 60 months. This is done in the case of 'Ausfallzeiten' It was impossible to decide whether ('interrupted periods') which according to Regulation No 3 of the Council of 25 Articles 56 and 57 of the Reichsknapp September 1958 (OJ of 16.12.1958, p. 561) schaftsgesetz (the Law relating to the before it was amended by Regulation Federal Mineworkers' Association) are No 130/63 of 18 December 1963 (OJ of periods during which as a result of sickness, 28.12.1963, p. 2998) permitted contribution
BUNDESKNAPPSCHAFT ν BROCK
periods completed in another Member State the later stages of the proceedings were to be taken into account in order to comply directed to the question whether the with the condition mentioned above. On amendment of Part Β of Annex G applied, the other hand Article 6 (1) of Regulation as maintained by the Knappschaft (Mine No 130/63 which amends Part Β of Annex G worker's Association), to pensions which to Regulation No 3 provides that: have their origin in a risk which materialized after 1 January 1964 or. whether, as Mrs 'In order to determine whether contri Brock submits, it must apply to pensions bution periods which under German law and arrears of pension payable with effect are treated as interrupted periods (Aus from 1 January 1964 even if the risk fallszeiten) or supplementary periods materialized before that date. (Zurechnungszeiten) must be taken into By its judgment of 16 August 1966 the account as such, contributions paid under Landessozialgericht (the Higher Social the law of another Member State and Court) of Lower Saxony decided that affiliation to a pensions insurance scheme contribution periods completed in the of another Member State shall be Netherlands were to be taken into account assimiliated to contributions paid under with effect from 1 January 1964 in order to German law and to affiliation to a determine whether Mr Brock had complied German pensions insurance scheme'. with the condition that he must have paid contributions during one half of the Paragraph (2) of this article states however insurance period stipulated by paragraph that the amendment of Part Β -takes effect (2) of Article 56 of the Reichsknappschafts on the first day of the month following the gesetz. date when this regulation entered into force, The Bundesknappschaft, the successor in that is to say, 1 January 1964. title to the Knappschaft of Aachen, lodged Mr Brock, whose pension rights pass to his an appeal against this decision with the widow, the respondent in the proceedings Bundessozialgericht. before the Bundessozialgericht (the Federal It maintains that, since the relevant pro Social Court) worked in the Netherlands vision of Regulation No 130/63 of the EEC from 1927 to 1933 and after this date mainly only entered into force on 1 January 1964, in Germany as a mineworker. the insurance periods completed abroad
On 3 December 1959 he was granted an cannot be taken into account in respect of invalidity pension with effect from 1 risks which materialized before that date. December 1958 which was converted into The events which give rise to a right under a an old-age pension when he attained the age new law, but which were concluded before of 65 years. this law entered into force, do not come Between Mrs Brock and the Mineworkers' within the amendment to the previous law, Association of Aachen which was respon unless the new law expressly so provides or sible for the payment of the pension, there it is possible to deduce from the ratio of this arose a dispute which in the first instance new law that the events in question fall was mainly concerned with the question within its field of application.
In social whether the payment of contributions in insurance law the determinative criterion the Netherlands during Mr Brock's period for deciding whether to apply the old or of employment in that country was to be the new is generally the materialization of assimilated to the payment of contributions the risk and the principle to be applied in in Germany in order to determine whether this case that the rights arising from the he complied with the condition precedent materialization of the risk before the entry for taking these interrupted periods into into force of the new law are governed by account. the provisions applicable at that time.
In As this question had been settled by the the present case, however, the risk the amendment to Part Β of Annex G by materialization of which gave rise to the Regulation No 130/63 which provided that right to an old-age pension materialized in contribution periods completed in the July 1959. Netherlands could be taken into account, The Bundesknappschaft goes on to argue
JUDGMENT OF 14. 4. 1970 — CASE 68/69
that Article 53 (4) of Regulation No 3 Rapporteur and the views of the Advocate- cannot be invoked. This provision can only General, the Court decided that no prepara refer to cases which were settled before the tory inquiry was necessary. entry into force of Regulation No 3, that is The Commission of the European Com to say, before 1 January 1959. However, munities presented oral argument at the the first decision relating to the insured hearing on 3 March 1970. person's pension was only taken on 3 The opinion of the Advocate-General was
December 1959. On the other hand it is delivered on 11 March 1970. clear from the wording of Article 6 (2) of Regulation No 130/63 that the amendment to Part 1 of Head of Annex G to Regulation II — Observations of the parties No 3 only refers to cases subsequent to 1 submitted pursuant to Article January 1964, whereas the other amend 20 of the Protocol ments to Annex G on the other hand have retroactive effect as from 1 January 1959. A — Mrs Brock's observations If the intention of the legislature had been different there would have been no need to Mrs Brock states that she accepts without provide in Article 6 (2) of Regulation No any reservation the decision of the Landes 130/63 (EEC) that the amendment to Part I sozialgericht of Lower Saxony and refers to of Head В of Annex G but not to the other the grounds upon which it is based. provisions would enter into force as from 1 January 1964. В — Observations of the Commission of the The Bundesknappschaft therefore asked European Communities and of the the Bundessozialgericht to annul the Federal Republic of Germany contested judgment and to dismiss Mrs Brock's application. By an order of 30 1 — The first question October 1969 the Bundessozialgericht stayed the proceedings and referred to the Court The Commission takes the view that the under Article 177 of the EEC Treaty the provision in the first paragraph of Head В following questions for a preliminary ruling : of Part I of Annex G to Regulation No 3 to the effect that contributions paid in other
1. Does the procedure adopted by para Member States are to be taken into account graph (1) of Annex G/I-B to Regulation must also apply to pensions payable in No 3 as amended by Article 5 of Regula respect of risks which materialized before tion EEC No 130/63 also apply to 1 January 1964. pensions within the meaning of Regu It makes the following submissions on this lation No 3 paid in respect of risks which point. materialized before this amendment Whereas all the other amendments made entered into force (1 January 1964)? by Regulation No 130/63 to Annex G/I-B took effect from 1 January 1959 (that is to
2. If so, are these pensions to be reviewed say, retroactively from the date when automatically or only at the request of Regulation No 3 entered into force), the person concerned and from what Article 6 (2) of this regulation provides that date? amendments to the first paragraph of Head В shall only take effect on the first day of the The order for reference was lodged at the month following the date when Regulation Court on 24 November 1969. No 130/63 entered into force, that is, on
The Commission of the European Com 1 January 1964. munities, the Federal Republic of Germany This provision, however, does not preclude and Mrs Elisabeth Brock lodged their the application of the amended text to written observations in conformity with events giving rise to the obligation to pay Article 20 of the Protocol on the Statute a pension (invalidity or old-age) which of the Court of Justice. occurred before 1 January 1964. After hearing the report of the Judge- (i) Under the case-law of the Court (OJ of
BUNDESKNAPPSCHAFT ν BROCK
9.12.1965, Case44/65,Hessische Knappschaft the risk materialized before 1 January v Singer [1965] E.C.R. 972) in the absence 1964.
of an express provision to the contrary, and there is none in this case, a new regulation The Federal Republic of Germany draws must be regarded as taking effect as soon as attention to the fact that, since what is it enters into force, as it determines in the concerned is an interrupted period under present legal consequences of actions in the German law, the periods to be taken into past. consideration should in principle be the It can only be inferred from Article 6 (2) contribution periods for the purpose of of Regulation No 130/63 (EEC) that the German pensions insurance. inclusion of interrupted periods in the However, the effect of the amendment of scheme laid down by paragraph (1) of Regulation No 3 by Regulation No 130/63 Section B of Annex G, I, was unlike the has been that contributions paid in another other amendments, only to take effect on Member State have been assimilated, for the
1 January 1964. If on the other hand it had calculation of the interrupted period, to been intended to set aside the general those paid in Germany. principle laid down in Case 44/65 that the The amendment, which only entered into new law is applicable to the future effects force on 1 January 1964, applies nevertheless of an earlier situation, this intention would to risks which materialized before this date have had to be expressly stated in Regula and for which a pension has already been
tion No 130/63. Neither Regulation No fixed. 130/63 itself nor the discussions which This is borne out by the following facts: preceded its adoption show any sign of any such intention. — On the one hand Article 50 of Regulation (ii) An examination of Articles 50 and 53 No 3 states that both the original and the amended versions of the provisions of of Regulation No 3 leads to the same conclusion. According to Article 50 the Annex G form an integral part of Regulation No 3 ;
provisions of Annex G in their original version or as amended or supplemented — On the other hand implementing pro from an integral part of the regulation. For visions, for example those in Annex G, this reason the transitional and final according to the case-law of the Court provisions of Article 53 are applicable to (OJ of 13.7.1966, Case 4/66, Labots (née paragraph (1) of Section B of Annex G, as Hagenbeek v Raad van Arbeid [1966] amended, provided it is understood however E.C_R_ 431) cannot derogate from the that this amended version takes effect, principal provisions of Regulation No 3, according to the distinctions which it draws, such as Article 53 (4).
This provision partly on 1 January 1959 and partly — in applies therefore without any restriction particular in the case of the disputed to Annex G. provision — on 1 January 1964. This means in particular: — However, according to Article 53 (4) : 'The rights of persons for whom a — that in principle the inclusion of in pension was calculated before this terrupted periods in the procedure set regulation entered into force may be out in paragraph (1) of Head B of Annex reviewed at their request'.
In Article 53 G, I, does not create the right to payment the words 'this regulation' refer to Annex of a higher pension for the period before G as amended and the words 'entered the entry into force of this inclusion, into force' refer to the actual date when that is to say, before 1 January 1964 the amendment entered into force, (Article 53 (1)); namely 1 January 1964. — that, subject to this reservation, the Head B of Annex G as amended must procedure set out in paragraph (1) of therefore be applied to insurance cases Head B of Annex G, I, to Regulation in respect of which an earlier pension No 3 must also be applicable to future has already been fixed if this pension has arrears of pension in respect of which to be reviewed.
JUDGMENT OF 14. 4. 1970 — CASE 68/69
With regard to Article 6 (2) of Regulation pension takes effect, the Commission takes No 130/63 this paragraph offords no the view that contribution periods com ground for saying that risks which have pleted in other Member States are only to materialized before the dates of the entry be taken into account in the case of pensions into force of the provisions of Regulation or arrears of pensions payable with effect No 130/63, are not formed by the from 1 January 1964.
amendments. Therefore the effect of Such an answer is in accordance with the Article 53 (1) and (3) is that the right to provisions of Article 6 (2) of Regulation benefit only arises with effect from the No 130/63 which provides that the amend date mentioned and not that events ments to Annex G, I, which are the subject occurring before the entry into force of matter of this case, do not enter into force the regulation cannot be taken into until 1 January 1964.
This argument can account. also be supported by Article 53 (1) of Regulation No 3, since, for the purpose 2 — The second question of its application, the operative date is 1 January 1964 and not 1 January 1959. In According to the Commission the answer to fact when confronted with later substantive the question whether the pensions must be amendments to this regulation — which is reviewed automatically or only at the the position in this case — it is necessary request of the person concerned is to be to take the date of their entry into force in found in Article 53 (4) read in conjunction considering whether to apply the prohibi with Article 50 of Regulation No 3. Article tion on payment of benefits in Article 53 (1). 53 (4) states that pensions are only reviewed This reasoning presupposes that before the at the request of the person concerned. entry into force of Regulation No 130/63 Since under Article 50 of Regulation No 3 there were no procedures corresponding to the above-mentioned provisions are also the present text of paragraph (1) of Head applicable to the procedure set out in Annex В Annex G, I, so that no revision prior to 1 G/I, any review based on the amended January 1964 could therefore be contem version of this Annex could only be carried plated. out at the request of the person concerned. On this point the Commission points out However, according to the Commission an that Articles 27 and 28 of Regulation No 3 automatic review can be carried out if it do not apply in this case and that the complies with national law to the extent question whether there is an 'assimilated to which it leads to an improvement in the period' must be settled solely under the situation of the person concerned. The internal law of the Member State concerned prohibition of an automatic review of (cf OJ of 5 December 1967, Case 14/67, pensions only refers to those cases where Welchner [1967] E.C_R_ 337). the review would be less favourable to him. In the absence of special provisions contri This view emerges, inter alia from the ratio bution periods completed in other Member of Regulation No 3 and in particular of States could not be taken into account and Article 53 (5) under which the more Regulation No 130/63 had to be adopted to favourable provisions of the legislation of a enable them to be reckoned.
It is for this Member State may be applied. reason that these contribution periods can The Federal Republic of Germany calls only be taken into account from 1 January attention to the fact that it is quite clear 1964 and not from 1 January 1959. from the wording of Article 53 (4) that The Federal Republic of Germany points out pensions fixed before 1 January 1964 must that the pension must be recalculated with be reviewed at the request of the person effect from 1 January 1964, the date from concerned and not automatically. which the person concerned is entitled to With regard to the second part of this the new benefits, but goes on to say that by question, namely from what point in time virtue of Article 53 (4) of Regulation No 3 in the case both of an automatic review and the request for a review had to be introduced of a review at the request of the person within two years after Regulation No 130/63 concerned the amended amount of the was brought into force.
BUNDESKNAPPSCHAFT ν BROCK
Grounds of judgment
1 By order of 30 October 1969 the Bundessozialgericht has referred to the Court for a preliminary ruling under Article 177 of the Treaty establishing the EEC two questions relating to the interpretation of certain provisions of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers, as amended by Regulation No 130/63 of the Council of 18 December 1963.
The first question
2 The Court is asked first to rule whether the procedure set forth in paragraph (1) of Head Β of Part I of Annex G to Regulation No 3, as amended by Article 6 of Regulation No 130/63, applies to pensions paid in respect of risks which material ized before 1 January 1964, the date when the amended text entered into force.
3 The object of this amendment is to assimilate to the contributions paid under German law and to affiliation to the German pensions insurance scheme affiliation and contribution to a pensions insurance scheme of another Member State for the purpose of determining whether the insured person fulfils the minimum require ments relating to contributions and affiliation required by German law for taking into account 'interrupted periods' in calculating his pension.
4 According to paragraph (2) of the said Article 6 this amendment took effect on 1 January 1964.
5 The order for reference calls attention to the fact that according to the Bundes knappschaft the law applicable to social security benefits is generally that in force when the risk materializes and that although Article 53 of Regulation No 3 made an exception to this principle in the case of the new procedures introduced on 1 January 1959 it does not make any such exception in the case of later amendments to this regulation. Therefore, it says, pensions in respect of which the risk material ized before 1 January 1964 cannot fall within the provisions brought into force on this date and continue, even as regard the future, to be subject to the former provisions.
6 Under Article 53 (3) of Regulation No 3, 'benefit shall be payable under this regulation even if it relates to an event before the date on which it comes into force'. On the other hand under paragraph (4) of that article the rights of persons
JUDGMENT OF 14. 4. 1970 — CASE 68/69
for whom a pension was calculated before Regulation No 3 entered into force may be reviewed at their request.
7 Although these provisions originally governed the situation existing on 1 January 1959, the date when the regulation was brought into force in its original form, they are nevertheless general in scope so that they also apply to the amended version of that regulation and in particular to Annex G, as amended by Regulation No 130/63, with the reservation that the date when their rules take effect is brought forward to 1 Januray 1964, the date when that amendment entered into force. This provision is in fact only an application of the principle that amending legisla tion applies, except where otherwise provided, to the effects in the future of situa tions which have arisen under the law as it stood before amendment.
8 As Regulation No 130/63 does not distinguish between pensions in relation to which the risk materialized before 1 January 1964 and those in relation to which it materialized after that date, it does not constitute an exception to this principle.
9 It therefore has to be accepted that the new rules take effect as from 1 January 1964 for all pensions without distinction. The answer must therefore be that the pro cedure introduced by paragraph (1) Annex G/I—B to Regulation No 3, as amended by Article 6 of Regulation EEC No 130/63, applies to pensions and arrears of pension which fell due as from 1 January 1964, even if those pensions are paid in respect of risks which materialized before that date.
The second question
10 Should the anwer to the first question be in the affirmative, the Bundessozialgericht asks in addition whether the pensions are to be reviewed automatically or only at the request of the individual concerned and with effect from what date.
11 Under Article 53 (4) of Regulation No 3, 'The rights of persons for whom a pension was calculated before this regulation came into force may be reviewed at their request'.
12 This provision applies to cases referred to in Article 6 of Regulation No 130/63 which amends Annex G/I—B and governs therefore the review of pensions arising out of this amendment. Regulation No 3 in its new and previous version therefore provides for a review of pensions only at the request of the persons concerned.
BUNDESKNAPPSCHAFT ν BROCK
13 However Article 53 does not prevent insured persons from taking advantage of solutions under national legislative systems which may be more favourable to them. On the contrary, paragraph (5) of that article secures, at least in certain respects, that insured persons may have the benefit of any such more favourable solutions arising out of national legislative ystems. There is therefore no objection to an automatic review under national law.
14 Finally it is apparent from Article 53 (4) and (5) that a review at the request of the insured person relates back to 1 January 1964, provided that the request has been submitted within two years, and to the date of the request if it is made after this period.
is With regard to any automatic reviews which may be carried out it is for the national legislative system to determine the effects of this more favourable treatment without however adversely affecting the rights which the insured person derives directly from Regulation No 3.
16 The answer to the second question must therefore be that under Community law pensions are to be reviewed at the request of the person concerned and that the review operates retroactively with effect from 1 January 1964 or from the date of the request according to the distinction made in Article 53 (4) and (5) without prejudice to any national provisions which may be more favourable to insured persons.
Costs
17-18 The costs incurred by the Government of the Federal Republic of Germany and by the Commission of the EEC which have submitted their observations to the Court
are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Bundessozialgericht, the decision as to costs is a matter for that Court.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur ; Upon hearing the oral observations of the Commission of the European Com munities;
OPINION OF MR ROEMER — CASE 68/69
Upon hearing the opinion of the Advocate-General ; Having regard to the Treaty establishing the European Economic Community, especially Articles 48, 51 and 177; Having regard to Regulations Nos 3 and 130/63 of the Council; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
in answer to the questions referred to it for a preliminary ruling by the judgment of 30 October 1969 by the Bundessozialgericht hereby rules:
1. The procedure introduced by paragraph (1) of Annex G/I - В to Regulation No 3, as amended by Article 6 of Regulation No 130/63, applies to pensions and arrears of pensions which have fallen due as from 1 January 1964, even if these pensions are paid in respect of risks which materialized before that date;
2. Under Community law pensions are to be reviewed at the request of the person concerned and the review operates retroactively with effect from 1 January 1964 or from the date of the request according to the distinction made in Article 53, without prejudice to any national provisions which may be more favourable to insured persons.
Lecourt Monaco Pescatore
Donner Trabucchi Strauß Mertens de Wilmars
Delivered in open court in Luxembourg on 14 April 1970.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 11 MARCH 19701
Mr President, to be dealt with today is concerned with the Members of the Court, has taking into account of so-called inter rupted periods when determining a pension The problem in the national proceedings under the German Reichsknappschaftsge which has given rise to the question which has setz (theGerman law relationg to the Federal
1 — Translated from the German.