C-32/77

Apportionment — Condition — Aggregation of insurance periods (EEC Treaty, Article 51; Regulation No 1408/71 of the Council, Article 46 (3))

2. Social security for migrant workers — Social security benefits — Calculation —

Residence clause — Waiver — Consequential apportionment — Not permissible (Regulation No 1408/71 of the Council, Articles 10 and 46 (3))

1. Article 46 (3) of Regulation No 2. Since the waiving of residence clauses 1408/71 is applicable only in cases pursuant to Article 10 of Regulation

where, for the purpose of acquiring No 1408/71 has no effect on the

the right to benefit within the acquisition of the right to benefit, it meaning of Article 51 (a) of the cannot involve the application of

Antonio Giuliani , San Marco in Lamis (Italy)

and

Landesversicherungsanstalt Schwaben , Augsburg

1 — Language of the Case: German.

JUDGMENT OF 20. 10. 1977 - CASE 32/77

on the validity of Article 46 (3) of Regulation (EEC) No 1408/71 of the

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The facts, the procedure and the written pension fixed at DM 64-80 per month

observations submitted pursuant to with effect from 1 July 1976. At first, Article 20 of the Protocol on the Statute pursuant to the first subparagraph of

February 1974 he has, on the ground of apportionment. This process benefit' produced a

loss of working capacity, been in receipt 'theoretical amount of (within in Italy of a yearly pension which after the meaning of Article 46 (2)) of DM apportionment amounts to Lit 507 030. 2 747-38 per year and a proportional

amount of DM 81-30 per month.

On his application, the competent

German insurance institution, the Notwithstanding the judgment delivered defendant in the main action, granted by the Court in Case 24/75, Petroni v him with effect from 1 February 1974 a ONPTS([1975] ECR 1149), the defendant

GIULIANI v LANDESVERSICHERUNGSANSTALT SCHWABEN

ruling (judgment of 21 October 1975 State. Another consequence of that

in Petroni, Case 24/75) to the effect case-law is that, because of the fact that, that Article 46 (3) of Regulation No under the German social insurance 1408/71 of the Council is scheme, entitlement to a pension

incompatible with Article 51 of the depends on the completion of a

Treaty to the extent to which it probationary period, a migrant worker imposes a limitation on the who has not completed the requisite

overlapping of two benefits acquired number of insurance months is treated

in different Member States by a less favourably. reduction in the amount of a benefit acquired under the national legislation The question arises whether the case-law

3. Do rights to payment exist in the of laws and regulations.

absence of Community law or are

such rights acquired under the Does the decision in Petroni apply in legislation of a Member State alone if, the case where effect can be given to a in the case of a migrant worker right arising under national law only by resident in another Member State, the application of Community law? they can be realized, by reason of Under German law the right to a pension national suspensory provisions, only is in principle held in abeyance where

through the waiving of residence the recipient is not a German and so

clauses under Article 10 of Regulation long as he voluntarily resides outside the No 1408/71? Federal Republic of Germany. The right 4. How is the last question to be to payment of the benefit can be answered if bilateral or multilateral exercised only as a result of the waiving Conventions between the Member of the residence clause referred to in States concerned have already Regulation No 1408/71. provided rules corresponding to those in Article 10 of Regulation No The order making the reference reached

1408/71? the Court on 14 March 1977.

Summary of written ob­ Regulation No 1408/71, it must be servations submitted to the possible to allow a reduction carried out

Court under Article 20 of on the basis of Article 46 (3). Through the Protocol on the Statute the operation of this particular rule the

of the Court of Justice of employed person is in a more favourable the EEC position than that which would result

from the application of the provisions of

The defendant in the main action states internal law alone, that is to say, in the that the issue is whether Article 46 (3) of circumstances of the main action, of

Regulation No 1408/71 is incompatible Article 1315 of the Reichsversicherungs­

employed persons subject to the those in Article 10 of Regulation No provisions of the national legislation of 1408/71. It is necessary to ascertain

one Member State alone cannot be whether compliance with their provisions

answered in the affirmative. It cannot be prevents a reduction of benefits under

assumed a priori that a purely national internal law provided on the basis of

pension is necessarily higher than a Article 46 (3). pension calculated on the basis of Article 46 (2). As regards the Germano-Italian Con­

vention on social security of 5 May 1953 The decisions of the Court concerning the proceedings in the main action are

Article 46 (3) ensures that the insured In Case 50/75, Caisse de Pension des person receives in the aggregate at least Employés Privés v Massonet [1975] ECR the highest theoretical amount of

1473, the Court held that limitations pension). As regards the European

may be imposed on migrant workers Interim Agreement on Social Security corresponding to the advantages which Schemes relating to Old Age, Invalidity they derive from Community regulations and Survivors, of 11 December 1953, it and which they would otherwise be contains no reduction clause but rules

unable to obtain. If a right based on similar to those in Article 10 of

provisions of internal law can take effect Regulation No 1408/71. But in this case,

only through the application of too, the pension to be allotted in

nevertheless places the recipient in a questions which it has already answered more favourable position than that which may be resubmitted to it. That is, he would occupy if he availed himself of moreover, the view of most learned the provisions of the European Interim writers.

Agreement. There is no relevance in the argument

If the Court considered that in the raised by the Sozialgericht in respect of

circumstances of the case in the main fundamental rights (infringement of the

action a reduction of pension produced general principle of equality) or in the by the application of Article 46 (3) was charge that German constitutional

lawful, it would still have to be decided processes have been ignored whether the reduction in the pension can (encroachment on the powers of the

action concludes that the first two Commission in so far as they infringe questions submitted by the Sozialgericht higher Community law or general legal Augsburg are not the subject of dispute principles. There can be no doubt and ought to be answered in the whatever that this power is conferred by affirmative. It awaits with special interest Articles 173, 177 and 184 of the Treaty. the decision of the Court on the last two The Court exercised this right in questions. connexion with Article 46 (3) not in order to substitute its own discretionary The Commission first of all points out power for that of the Community that the Sozialgericht Augsburg questions legislature but because it has always held the very substance of the Petroni that, if there is a right to pension in judgment although the Court again ruled more than one Member State, it is to the same effect in Case 62/76 (Strehl v incompatible with Article 51 of the

Nationaal Mijn­ Pensioenfonds voor Treaty to wish to limit the pension to the werkers, judgment of 3 February 1977 amount which the person concerned

[1977] ECR 211). In its decisions to date could have obtained as the 'highest Court's amount'

the preliminary rulings are theoretical if his whole working

JUDGMENT OF 20. 10. 1977 - CASE 32/77

life had been spent in a single Member judgment in Petroni, it is also possible to State. This is the effect of a long series of speak of benefits acquired "without law'

on legal considerations: neither the Community law. Under Article 1315 of

wording nor the purpose of Article 51 the RVO, pensions due to non-German

authorizes a diminution of rights nationals are in principle not paid so

acquired under national legislation alone; long as the person entitled is of his own there is no question of an attempt to free will domiciled in a country other

bring indirect pressure to bear on the than the Federal Republic of Germany. Council to set up a uniform social In fact, therefore, the second and fourth security scheme; and, if there is a questions relate to the same issue. duplication of insurance periods or an overlap of type A benefits with type B It is inconceivable that the rules provided benefits, the Council is free to adopt for in Article 51 (b) of the Treaty (the provisions for the prevention of obligation to make benefits available

overlapping. abroad) may be usedonly when

acquired under national pension which is lower than that which be must not reduced has, accordingly, a he would have received if he had worked bearing only on the question whether the all his life in one Member State. right to a pension was acquired solely Moreover, Community law provides under national legislation or solely by the against inequality of treatment only on application of the rules which, in Article grounds of nationality. 51 (a), the Treaty laid down for the benefit of migrant workers. But the The position of a migrant worker who conclusion must also be drawn from has had the courage and the these decisions of the Court that they resourcefulness to move to another State in order to take employment cannot constitute no authority for the reduction up of a pension if the right to payment of a be compared with that of a worker who pension acquired under national has his whole working life in one spent

Member State. There can be no question legislation was available only by recourse

to the obligation to make benefits being at an workers'

therefore of migrant available abroad as provided for by advantage. Moreover, the prohibition on Article 51 (b) of the Treaty and by Article the infringement of acquired rights 10 of Regulation No 1408/71. conflicts with the argument, mistakenly Consequently, the further hypothesis submitted, regarding equality. described by the Sozialgericht in its In asking the second question the fourth question has no bearing on the Sozialgericht is endeavouring to ascertain outcome of the proceedings in the main

1 By order of 27 January 1977, which reached the Court Registry on 14 March 1977, the Sozialgericht Augsburg referred certain questions under Article 177 Regulation of the EEC Treaty concerning the validity of Article 46 (3) of (EEC) 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 Those questions are referred in connexion with proceedings concerning the way in which the competent German institution calculated the invalidity pension of an Italian national, the plaintiff in the main action, who resides in

Italy and who worked first in Italy and subsequently in Germany.

The file shows that the plaintiff in the main action satisfies the conditions for entitlement to a pension under German legislation alone but that, failing the application of Article 10 of Regulation No 1408/71, payment of the pension

would have had to have been held in abeyance by virtue of a residence clause contained in that legislation.

Acting under the rule laid down in Article 46 of Regulation No 1408/71, for the limitation of benefits, the German institution calculated the pension of

JUDGMENT OF 20. 10. 1977 - CASE 32/77

of the Council is incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on the of two benefits acquired in overlapping different Member States by a reduction in the amount of a benefit acquired under the national legislation of a Member State alone'.

It is then asked whether 'Article 46 (3) of Regulation No 1408/71 of the

Council is, where appropriate, valid in so far as rights to payment are thereby limited which would not exist in the absence of Community law'.

It is further asked whether 'rights to payment exist in the absence of

Community law or whether such rights are acquired under the legislation of a Member State, they can be realized, by reason of national suspensory Article 10 of provisions,only through the waiving of residence clauses under

cash benefits, pensions for accidents at work or occupational diseases and

death grants acquired under the legislation of one or more Member States

shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in a territory of a Member State other than that in which the institution responsible for payment is situated'.

s As the Court has already ruled, in its judgment of 21 October 1975 (Petroni, Case 24/75 [1975] ECR 1149), Article 46 (3) of Regulation No 1408/71 of the

Council is incompatible with Article 51 of the Treaty to the extent to which

it imposes a limitation on benefits acquired in different Member States by a reduction in the amount of a benefit acquired under national legislation alone.

Article 51.

6 Consequently, the answer to be given to the first two questions is that Article 46 (3) is applicable only in cases where, for the purpose of acquiring the right to benefit within the meaning of Article 51 (a) of the Treaty, it is necessary to have recourse to the arrangements for aggregation of the periods of insurance.

It follows from the foregoing that, since the waiving of residence clauses

pursuant to Article 10 of Regulation No 1408/71 has no effect on the

acquisition of the right to benefit, it cannot involve the application of Article 46 (3) of that regulation.

7 The answers to the first three questions make it unnecessary to answer the

On those grounds,

THE COURT

in answer to the questions referred to it by the Sozialgericht Augsburg by order of 27 January 1977 hereby rules:

1. Article 46 (3) of Regulation No 1408/71 is applicable only in cases where, for the purpose of acquiring the right to benefit within the meaning of Article 51 (a) of the Treaty, it is

JUDGMENT OF 20. 10. 1977 - CASE 32/77

necessary to have recourse to the arrangements for aggregation of the periods of insurance.

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER (see case 112/76, p. 1657)