C-104/76

LANDESVERSICHERUNGSANSTALT RHEINPROVINZ (Regional Insurance Office for the Province of the Rhineland), having its registered office in Dusseldorf,

on the interpretation of Regulation No 3 of the Council of 25 September 1958, concerning social security for migrant workers, and 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, in the light of the provisions of the Reichsversicherungs­ ordnung (Imperial Insurance Regulation) relating to the scheme for reimbursement of contributions,

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

The facts, the procedure and the rejected this application: it stated that observations submitted under Article 20 Mrs Jansen was compulsorily subject to of the Protocol on the Statute of the the statutory pension insurance of the Court of Justice of the EEC may be Netherlands, pursuant to the summarized as follows: Netherlands General Old-age Insurance Law (Algemene Ouderdomswet, hereinafter referred to as 'the AOW) and I — Facts and procedure the General Law concerning Widows and Orphans (Algemene Weduwen- en Mrs Gerda Jansen, a German national, Wezenwet, hereinafter referred to as 'the born on 4 September 1944, pursued AWW'), and that therefore she had not, activities as an employed person in the as was required by paragraph 1303 (1) of Federal Republic of Germany until 9 the RVO, ceased to be a member of a May 1968 which involved compulsory compulsory insurance scheme. membership of a social security scheme. On 3 August 1970 Mrs Jansen appealed Following her marriage on 5 March against this decision to the Sozialgericht 1965, and pursuant to the provisions of (Social Court) Düsseldorf. paragraph 1304, still applicable at the time (though repealed with effect from 1 By a judgment of 17 September 1971 January 1968), of the Reichsversiche­ that court rejected her application, on the rungsordnung (Imperial Insurance grounds that in the Netherlands she is Regulation, hereinafter referred to as 'the subject to compulsory general insurance; RVO"), the contributions which Mrs since Regulation No 3 of the Council of Jansen had paid up to 31 March 1965 to 25 September 1958 on social security for the German workers' pension insurance migrant workers applies to her situation, she does not fulfil the condition laid scheme were reimbursed to her by a decision of 31 May 1965 of the down in paragraph 1303 (1) of the RVO. Landesversicherungsanstalt. On 30 November 1971 Mrs Jansen On 14 May 1968, Mrs Jansen established appealed against that judgment to the her domicile in Bocholtz in the Landessozialgericht Nordrhein-West­ falen. Netherlands, and did not take up any fresh employment. By a judgment of 27 April 1972 that court allowed Mrs Jansen's appeal, On 11 May 1970, pursuant to paragraph annulled the decision of the 1303 (1) of the RVO, she requested from Landesversicherungsanstalt Rheinprovinz the Landesversicherungsanstalt Rhein­ and ordered it to reimburse to her half of provinz the reimbursement of half the the contributions paid from 1 April 1965 amount of the 27 monthly contributions to 9 May 1968. further paid between 1 April 1965 and 9 May 1968. The Landesversicherungsanstalt Rhein­ provinz appealed against this judgment By a decision of 17 July 1970 the on a point of law to the Bundes­ Landesversicherungsanstalt Rheinprovinz sozialgericht (Federal Social Court).

the first time for the right to reimbursement of contributions? Pursuant to Article 20 of the Protocol on 2. In the domestic German law the Statute of the Court of Justice of the contained in paragraphs 1303 and EEC, written observations were 1323a of the Reichsversicherungs­ submitted by the Commission of the ordnung was it necessary for an European Communities on 3 January insurance requirement under the 1977.

Algemene Ouderdomswet and the Algemene Weduwen- en Wezenwet of On hearing the report of the the Netherlands to be regarded as Judge-Rapporteur and the views of the Advocate-General, the Court decided to 'compulsory insurance' within the meaning of paragraph 1303 (1) of the open the oral procedure without any RVO even from May 1970 and is a preparatory inquiry. German pension insurance institution However, the Landesversicherungsanstalt for that reason debarred from Rheinprovinz was requested on 10 reimbursing contributions under the February 1977 to supply the Court with abovementioned provisions if a details in writing on certain points of German national transfers his fact; those details were submitted on 2 residence to the Netherlands? March 1977. 3. Can Article 2 of Regulation No 3 be interpreted to the effect that the domestic German right of II — Written observations sub­ reimbursement of contributions is mitted to the Court included in the matters covered by that regulation? The Commission of the European 4. Are the relevant EEC regulations Communities submits in essence the primarily intended to serve: following observations:

1. Matters covered by Regulation No 3 (c) An extensive interpretation of (First and third questions) Article 2 (1) of Regulation No 3 is also justified in the light of Regulation No (a) Unlike Regulation No 1408/71, 1408/71, which has been in force since 1 Regulation No 3 does not contain any October 1972. Article 4 (1) thereof, express reference to national schemes for defining the matters covered by the reimbursement of contributions: the regulation, corresponds, except for some matter is not raised either in Article 2 (1), formal amendments, word for word to which lays down the matters covered by Article 2 (1) of Regulation No 3, and the regulation, or in Article 1 (s), which refers to the same schemes and legal gives a definition of the concepts of provisions.

given an extensive interpretation. The problem is to determine the legal consequences of the inclusion of the The close systematic relationship scheme for reimbursement of between the reimbursement of contributions within the ambit of contributions and the contribution Regulation No 3: is reimbursement scheme, and in particular the actual right precluded as long as an insurance to the pension, can be put forward in requirement exists in another Member favour of including the scheme for State? reimbursement of contributions in the matters covered by Regulation No 3. The (a) The purpose of the aggregation of wording of Article 2 (1) of Regulation No the insurance periods completed by a 3 indicates that it applies generally to worker under the legislation of several any legislation relating to social security Member States, provided for by Article benefits, since according to the definition 27 of Regulation No 3, is to prevent the given in Article 1 (b), the term migrant worker from being treated 'legislation' means everything contained unfavourably in relation to other workers in all the laws, regulations and other by virtue of his having exercised his right provisions of the Member States. of freedom of movement; such aggregation applies only in clearly Moreover, the inclusion of the defined cases, when the national reimbursement of contributions in the legislation alone does not enable the concept of 'benefits' would ensure, in the objective of the creation of freedom of interest of freedom of movement for movement for workers to be attained. workers, the implementation of the export guarantee provided for by Article (b) Nor does the objective of Regulation

JUDGMENT OF 5. 5. 1977 —CASE 104/76

That might be the case if schemes. Moreover, it is open to the provisions of internal law provided for the termination, with retroactive effect, of national legislature to make the repayment of contributions subject to the the insurance relationship without the consent of the worker concerned or condition that the insurance requirement in another Member State should also against his wishes. come to an end. Article 10 (2) of Regulation No 1408/71 expressly refers to the fact of ceasing to (c) This interpretation of Regulation No be subject to compulsory insurance as a 3 does not conflict with Article 10 (2) of condition imposed by internal law for Regulation No 1408/71. That paragraph the reimbursement of contributions; it is brings the legislation of the Member directed at only one of the forms which States on the reimbursement of schemes for the reimbursement of contributions into alignment in so far as contributions can take, and the national that legislation regards the fact of ceasing legislature is entitled to provide for other to be subject to compulsory insurance as cases of retroactive termination of the the decisive factor in the retroactive

JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

covered by Regulation No 3 laid down in 1. The inclusion of the right to Article 4 (1) thereof, and from the scope reimbursement of contributions, and purpose of any arrangements of that provided for by national law, in the kind; it is confirmed by the wording of matters covered by Regulation No 3 is Article 10 (2) of Regulation No 1408/71. not contrary to the wording of Article 2 (1) of that regulation. The appellant in the main action does 2. Schemes for the reimbursement of not even fulfil the conditions laid down contributions are not explicitly by Article 4 (1) of Regulation No 3: provided for within the framework of when she left her State of origin, she also Regulation No 3, nor can it be ceased her professional or trade activity. inferred from the scope and purpose She is subject to compulsory insurance of that regulation that compulsory under the AOW, not as a worker, but insurance in one Member State must solely by virtue of the fact that she lives be taken into account when, in the Netherlands. As regards the according to national law, insurance periods which are relevant to reimbursement of contributions is the present case, her previous occupation subject to the cessation of compulsory as an employed person does not give her insurance.

JUDGMENT OF 5. 5. 1977 —CASE 104/76

2. Persons covered by the Community were completed under the legislation of various States. In this instance, regulations aggregation should be carried out in (a) With regard to Article 4 (1) of Germany only in respect of old-age or Regulation No 3, according to which the death benefits; however, in that case regulation applies to employed persons there would no longer be any or assimilated workers who are or have justification for a reimbursement of been subject to the legislation of one or contributions, since there are grounds for more of the Member States, it suffices to such reimbursement only with respect to observe that the appellant in the main those insured persons who, for want of action has been subject, as a worker, to compulsory or optional contributions, the legislation of the Federal Republic of cannot assert a right to benefits on the Germany, and that she retains her status basis of insurance periods previously of worker, irrespective of whether or not completed. she has, in another State of residence, resumed activities as an employed person (b) According to Article 10 (2) of which are subject to compulsory Regulation No 1408/71, where under the contributions, or of whether the previous legislation of a Member State insurance is continued in the form of a reimbursement of contributions is general insurance applying to the whole conditional upon the person concerned of the population, or even of whether she having ceased to be subject to is in employment which is exempt from compulsory insurance, this condition is the obligation to pay contributions. not to be considered satisfied as long as the person concerned is subject to (b) This conclusion is confirmed by compulsory insurance as a worker under Article 9 (1) of Regulation No 3, the legislation of another Member State. according to which, for the purposes of In this connexion as well, the status of admission to compulsory insurance, the worker is decisive. This view is in the insurance periods and assimilated periods worker's best interests and corresponds to completed under the legislation of the social policy objectives of the Member States other than the State of Member States; nor does it prejudice the residence are, in so far as is necessary, to principle of freedom of movement.

JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

which he is subject as a worker in his The Advocate-General delivered his own State. Thus the principle of equality opinion at the hearing on 31 March of treatment is not put in issue. 1977.

Decision

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.

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.

By a judgment of 31 January 1974, the Bundessozialgericht held that, although repayment of the contributions was due under the national legislation following the cessation of any relationship between the person concerned and a German social security institution, none the less it had to be considered whether the operation of such legislation was not modified by the effect of the provisions of Community law in the event of the person concerned being subject to a social security requirement in another Member State.

Since this point of fact had not been adequately clarified during the earlier proceedings, the Bundessozialgericht quashed the decision on appeal and remitted the case to the Landessozialgericht.

On the basis of information provided by the competent Netherlands institution, namely the Soziale Verzekeringsbank, Amsterdam, that court was able to find as a fact that the appellant in the main action, who apparently does not pursue any activity as an employed person in the Netherlands, is automatically subject to the application of the AOW and the AWW.

In the light of this factual situation, the Landessozialgericht takes the view that the action does raise certain questions relating, inter alia, to the determination of the matters covered by Regulation No 3 and to its relationship with Regulation No 1408/71.

JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

Therefore there is no doubt that, in so far as it forms an integral part of the provisions governing a particular social security scheme, the reimbursement of contributions comes within the ambit of Regulation No 3.

However, it is none the less true that, although Regulation No 3 is applicable in principle, it does not contain any specific provision relating to the reimbursement of contributions.

It follows from this that such reimbursement is covered only by the general rules which are affirmed by that regulation and by the provisions of the EEC Treaty to which it gives effect.

Depending on the circumstances, the same could have been true of the rule on equality of treatment affirmed by Article 8, or on the waiving of residence

JUDGMENT OF 5. 5. 1977 —CASE 104/76

clauses provided for by Article 10 (1), these being provisions whose application is not in dispute in this case.

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.

Although 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.

JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

Second question (taking into consideration of a generalized insurance scheme)

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.

The fifth question further asks whether the principle of the maintenance of rights or affiliations already acquired must in all cases be given precedence, even over the wish of the beneficiary to have his contributions reimbursed.

JUDGMENT OF 5. 5. 1977 —CASE 104/76

In substance, these two questions are directed at ascertaining whether a right to reimbursement of social security contributions conferred by national legislation on former members, when they satisfy all the conditions stipulated by law for that purpose, can be restricted on the basis of the objectives pursued by the Community rules, even against the wish of the persons concerned, with a view to maintaining any rights in the process of being created, which could be realized later through the operation of the aggregation rule referred to in Article 51 of the Treaty and put into effect by Regulations No 3 and No 1408/71.

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.

Although those provisions ensure that, for the purpose of acquiring and retaining the right to benefit, migrant workers enjoy aggregation of all periods taken into account under the law of the several countries, they cannot however be interpreted, in the absence of express provisions, as preventing persons so favoured from exercising the legal options open to them under the legislation of one or other of the Member States, such as the right of applying in certain circumstances for the reimbursement of social security contributions.

14 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Landessozialgericht Nordrhein-Westfalen, the decision on costs is a matter for that court.

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.

Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 5 May 1977.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 31 MARCH 1977 1

Mr President, contributions to the German workers' Members of the Court, pension insurance scheme for a further 27 months. In May 1968 she gave up her The plaintiff in the proceedings before employment in Germany and moved the national court which have given rise with her husband to the Netherlands. to the reference to the Court of Justice She did not take up employment subject for a preliminary ruling in Case 104/76 to compulsory insurance there. Since she was born in 1944 and possesses German was no longer liable from that time to nationality. After her marriage to a pay contributions to the German pension German citizen in March 1965 she insurance scheme, she applied in May obtained reimbursement of the 1970 for a further reimbursement to contributions which she had until then cover the contributions which she had paid to the workers' pension insurance paid during the abovementioned 27 scheme on account of employment in months. This claim was based on the Federal Republic of Germany which paragraph 1303 (1) of the Reichs­ was subject to compulsory insurance. versicherungsordnung, according to This was possible under paragraph 1304 which: