C-191/73

JUDGMENT OF THE COURT OF 28 MAY 1974 1

Rudolf Niemann

v Bundesversicherungsanstalt für Angestellte (preliminary ruling requested by the Sozialgericht Freiburg)

Case 191/73

Summary

1. Social Security for migrant workers — Old-age and life insurance — Insurance periods — Aggregation — Apportionment — Benefits — Total amount less than amount of benefit to which insured entitled under legislation of one Member State — Article 28 (3) of Regulation No 3 — Incompatibility with Article 51 of EEC Treaty — Invalidity

1 — Language of the Case: German.

JUDGMENT OF 28. 5. 1974 — CASE 191/73

BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE, Berlin,

on the validity of the first sentence of Article 28 (3) of Regulation No 3 of the Council concerning social security for migrant workers (OJ No 30 of 16 December 1958, p. 561/58) and of Article 13 (1) (b) and (5) of Regulation No 4 of the Council (OJ No 30 of 16 December 1958, p. 597/58) on implementing procedures and supplementary provisions in respect of Regu­ lation No 3 concerning social security for migrant workers,

THE COURT

composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presi­ dents of Chambers, R. Monaco, J. Mertens de Wilmars (Rapporteur), P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges,

1958, p. 561/58) and thus granted for A decision of the BVA of 23 March 1971 the periods completed in Germany only confirmed, in its conclusion and in its a pro rata portion of the pension (76 %). statement of reasons, the decision of 17 Further, in making the aggregation prior August 1970. to this apportionment, it refused to take Mr Niemann, believing that he would account for the aggregation calculation have a higher German pension if his of the periods of voluntary contributions pension rights acquired in France and in paid to it for more than nine years Germany had been calculated separately, whilst Mr Niemann was working in brought an action before the France. On this point it relied on Article Sozialgericht, Freiburg, in which he 13 (1) (b) of Regulation No 4 of the contested the application of Regulations Council on implementing procedures Nos 3 and 4 to his case. and supplementary provisions in respect By order of 15 November 1973 the of Regulation No 3 (OJ No 30 of 16 Sozialgericht, Freiburg, put the following December 1958, p. 597/58), according to question to the Court: which: 'When a completed insurance period, by way of compulsory insurance 'Are the provisions of the first sentence under the legislation of one Member State, of Article 28 (3) of Regulation No 3 of coincides with a completed insurance the Council of the European Economic period by way of voluntary or optional Community of 25 September 1958, continued insurance under the legislation concerning social security for migrant of another Member State, only the workers, and of Article 13 (1) (b) and (5) former shall be taken into account'. of Regulation No 4 of the Council of the These voluntary contributions were European Economic Community of 25 regarded only as contributions towards a September 1958, concerning social supplementary insurance within the security for migrant workers, compatible meaning of paragraph (5) of the same with Article 51 of the Treaty establishing Article. the European Economic Community of 25 March 1957?'

almost without interruption, he made could not therefore have subsequently contributions at the maximum rate to been transformed into a 'supplementary the pension scheme in that State in insurance contribution'. accordance with the laws and provisions In any event Mr Niemann claims the in force there. The result was that up to benefit of the exceptions referred to in 31 December 1958 he was entitled to Article 17 of Regulation No 1408/71 of two separate pensions. The entry into the Council of 14 June 1971 (OJ No force of Regulations Nos 3 and 4 as L 149 of 5 July 1971, p. 10), which has from 1 January 1959 reduced the net taken the place of Regulation No 3, and amount of his pension to a level below the benefit of Article 15 of Regulation that of the German pension alone, No 1408/71, according to which, in although the Treaty in its preamble had particular in the field of pensions, the promised noticeable improvements in the overlapping of voluntary insurance in condition of those covered by social one Member State with compulsory insurance, especially frontier workers. In insurance in another is permissible to the fact the application of Community extent that the first Member State provisions made by the BVA was a explicitly or implicitly admits such violation of the principle of the overlapping. non-retroactive nature of laws, which Similarly with a view to the forbids the application of laws to 'past consolidation of his vested rights he acts', namely in this specific case relies on the saving clause in respect of voluntary insurance contributions paid rights acquired before 1 October 1972, during periods of work in France. contained in Article 118 (1) of Furthermore this application constitutes Regulation No 574/72 of the Council of an infringement of a right comparable 21 March 1972 (OJ No L 74 of 27 with the proprietary right protected by March 1972, p. 40), fixing the procedure Article 14 of the Federal Constitution. for implementing Regulation No Mr Niemann contests the arguments put 1408/71, a saving clause not provided by forward by the BVA in a letter of 26 Regulations Nos 3 and 4. July 1971, in particular the comparison of his situation to that of workers who B — Observations of the Bundesver­ before 1 January 1957 paid sicherungsanstalt fur Angestellte contributions simultaneously to volun­ tary insurance and compulsory The Bundesversicherungsanstalt für insurance, a comparison which resulted, Angestellte concedes that Mr Niemann in his case, in the application of Article 2 could validly claim a pension under (15) of the Angestelltenversicherungs- German insurance without its being Neuregelungsgesetz of 23 February 1957 necessary to aggregate the insurance (BGBl. 1957, p. 119), which specifies that periods on the basis of Article 27 of voluntary contributions are in such a Regulation No 3. The calculation of the case to be considered as contributions to German pension should however be supplementary insurance. According to made on the basis of Article 28 (1) (b) of him his situation is not comparable with Regulation No 3 and consequently that to which it has been likened, in taking Article 13 (1) of Regulation No 4 particular because he was obliged to into account.

acquisition of the entitlement. The only Nor can Mr Niemann maintain that exception to the general obligation to Regulation Nos 3 and 4 have reduced aggregate is found in Article 28 (1) (f), the rights to a pension which he had according to which the amount of the acquired up to 31 December 1958. On pension is calculated solely in the one hand he had no right to a accordance with national legislation in pension at the time of the entry into the case — but only in the case — where force of Regulations Nos 3 and 4 and on the conditions for entitlement to a the other hand the Franco-German pension are fulfilled without need of social security Convention which applied recourse to Article 27 of Regulation No to the applicant until 31 December 1958 3 and where, furthermore, there exists could no longer be applied to the risk no right to a pension in any other pertaining to age, which materialized on Member State under national legislation. 22 May 1970. The Judgment of the The apportionment provided for in Court of 7 June 1973 (Case 82/72, Walder v Bestuur der Sociale Article 28 (1) (b) is warranted by the concern to avoid the unjustified Verzekeringsbank, Rec. 1973 p. 599) in duplication of pensions. It was with good fact made it clear that: 'Regulations Nos reason that the Court of Justice 3 and 1408/71 of the Council replace, in approved the application of Article 28 respect of persons covered by them, the (1) (b) of Regulation No 3, at least in social security Conventions concluded between Member States which are not cases where the insurance periods mentioned in Articles 6 and 7 or in completed in several Member States Annexes D and II of the said overlap (Judgments of 5 July 1967, Case Regulations respectively, even if the 1/67, Ciechelski v Caisse régionale de sécurité sociale du centre d'Orléans, Rec. application of the Convention is more advantageous to persons entitled to 1967, p. 235; Case 2/67, De Moor v benefits than the said Regulations'. Caisse de pension des employés privés, Rec. 1967, p. 255). Article 46 (3) of Regulation No 1408/71 C — Observations of the Commission confirms the possibility and conformity with the Treaty of the reduction of According to the Commission it is first of all necessary to examine whether the rights, even when they are acquired interpretation of Articles 27 and 28 of without there being any need for Regulation No 3 requires apportionment recourse to aggregation. This Article in cases such as the one under provides, in fact, for a reduction of consideration. national benefits, to the extent to which the combined amount of those benefits is Both the BVA and Mr Niemann start greater than the highest theoretical from the premise that the answer is amount calculated by means of applying affirmative, the former believing this one system of legislation only to all the interpretation to be not only accurate periods completed. but in accordance with Article 51 of the

which the rule evolved in the case-law of Court of Justice has nowhere said that the Court of Justice, to the effect that recourse must be had automatically to apportionment can be effected only if it apportionment in all cases of has previously been necessary to make concurrence. It has simply said that the an' aggregation, is incompatible with duplication of benefits which may result Article 28, cannot be upheld. Similarly it from its case-law is unjustified to the is necessary to reject its claim that, at the extent to which concurrent insurance very least, by virtue of the Judgments of periods are taken into consideration as the Court of 5 July 1967 in Cases 1/67 the basis for rights in several Member (Ciechelski, Rec. 1967, p. 236) and 2/67 States. If, on the other hand, periods (De Moor, Rec. 1957, p. 256), the rule simultaneously completed in one referred to above is not applicable where Member State are not taken into periods completed in one Member State consideration as the basis for a right in run concurrently at a given time with another Member State, the reservation periods completed in another Member indicated by the Court of Justice in the State. judgments cited by the defendant cannot

No 4. des travailleurs salaries de Strasbourg, Rec. 1971, p. 885), and 140/73 Having stated the matter thus, the (Judgment of 6 December 1973, Commission examines the question put Direction régionale de la sécurité sociale by the Sozialgericht, Freiburg. de la region parisienne v Mancuso, not yet reported). It declared (in Case 2/67) (a) As regards the first sentence of that the duplication of pensions is not

It therefore another Member State by means of implies, contrary to the interpretation aggregation in accordance with Article given to Article 27 and the remainder of 27 of Regulation No 3 does not, Article 28 by the case-law of the Court, according to the Judgment in Case 2/67, the possibility of apportionment without amount to an advantage contrary to the necessity for aggregation. It must be Community rules, but only in so far as concluded that it is incompatible with the periods do not run concurrently.

NIEMANN v BUNDESVERSICHERUNGSANSTALT

(b) As regards Article 13 (1) (b) and (S) in Article 27 (1) of Regulation No 3 of Regulation No 4 regarding the concurrence of periods. As this reservation has been expressly It emerges from Mr Niemann's recognized as being compatible with observations that he considers it as an Article 51 by the Judgments of the Court attack on his 'vested rights' not to take in Cases 1/67 (Ciechelski) and 2/67 (De into account, by virtue of the said Article Moor) cited above, the position is 13 (1), the periods of voluntary necessarily the same for Article 13 (1) (b) contribution completed by him during and (5). As it is not one of the objectives the years 1947 to 1959 as normal periods of Article 51 of Treaty to guarantee an which should be included in the insured person, as against the aggregation calculation, but only as institutions of the various States, various contributions of a reduced value by way rights to benefits relating to one and the of supplementary insurance under same period, it is impossible to see in paragraph (5) of the same Article 13. Article 13 an infringement of a higher The Commission takes the view that the rule. application of Article 13 presupposes the In the course of the oral procedure on 3 possibility of an aggregation of insurance April 1974 the parties expanded the periods such that, regard being had to arguments put forward in the course of the above observations, the problem of the written procedure. the application of this provision does not arise in this case. The Commission, represented by its agent, Mr Karpenstein, elaborated the Having made this point, the Commission declares itself unable to see how Article arguments put forward in its written statement of case. 13 (1) and (5) infringes Article 51 of the Treaty. These provisions in fact only re­ The Advocate-General delivered his peat the reservation already formulated opinion at the hearing on 2 May 1974.

2. in doing this, refused to take into account the periods of voluntary contribution;

3. undertook an apportionment of this pension; and

4. in view of the fact that the German and French pensions together, after apportionment, did not attain the level of the pension which would have been granted on the basis of German legislation alone, granted a sup­ plement to bring them to that level.

To justify this method of calculation, the organization relies, so far as aggre­ gation, apportionment and the grant of a supplement are concerned, on Article 28 (3) of Regulation No 3 and, so far as the refusal to take account of the voluntary contributions is concerned, on Article 13 (1) (b) and (5) of Regulation No 4.

3 According to Article 28 (3) of Regulation No 3: 'If the amount of benefit which may be claimed independently of the provisions of Article 27, in respect of the insurance periods and assimilated periods completed under the legislation of one Member States, is greater than the total benefits resulting from implementing the foregoing paragraphs of this Article, the person con­ cerned shall be entitled to receive from the institution of that State a sup­ plement equal to the difference.'

According to Article 13 (1) (b) of Regulation No 4, aggregation of insurance periods referred to in Article 27 of Regulation No 3 shall be governed by the rule that: 'When a completed insurance period, by way of compulsory in­ surance under the legislation of one Member State, coincides with a completed insurance period by way of voluntary or optional continued insurance under the legislation of another Member State, only the former shall be taken into account'.

The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose ad­ vantages in the field of social security guaranteed to them in any event by the laws of a single Member. State.

6 Article 51 of the Treaty deals essentially with the case in which the laws of one Member State do not by themselves allow the person concerned the right to benefits by reason of the insufficient number of periods completed under its laws, or only allow him benefits which are less than the maximum.

To remedy this situation it provides, in respect of a worker who has been successively or alternately subject to the laws of two or more Member States, for aggregation of the insurance periods completed under the laws of each of such States.

The aggregation and apportionment provided for by Articles 27 and 28 of Regulation No 3 cannot therefore be carried out if their effect is to diminish the benefits which the person concerned may claim by virtue of the laws of a single Member State on the basis solely of the insurance periods completed under those laws, always provided that this method cannot lead to a dupli­ cation of benefits for one and the same period.

JUDGMENT OF 28. 5. 1974 — CASE 191/73

7 Aggregation is not applied even in cases where insurance periods completed in the State concerned coincide with insurance periods completed in another Member State.

The question relating to the validity of these provisions is therefore devoid of object, and examination of it has not revealed any factors capable of affecting their validity.

Costs

10 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.

NIEMANN v BUNDESVERSICHERUNGSANSTALT

As these proceedings are, insofar as the parties to the main action are con­ cerned, a step in the action pending before the national court, costs are a matter for that court.

THE COURT

A. Van Houtte R. Lecourt

Registrar President