C-144/78

on the compatibility with Article 51 of the Treaty of Article 50 in conjunction with Annex GIA2 of Regulation No 3 of the Council of 25 September 1958 on social security for migrant workers (Journal Officiel 1958, p. 561) and of Article 89 in conjunction with Annex VC1b of Regu- lation (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 (Official Journal, English Special Edition 1971 (II), p. 416),

THE COURT

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

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

gives the following

JUDGMENT

foreign pensions) of 25 February 1960 benefits as long as the person entitled provides that, according to the federal resides outside the Federal Republic of legal provisions applicable to statutory Germany." accident insurance, compensation is also Annex VC 1 (b) to Regulation No payable for an accident at work which 1408/71 reads as follows: occurred outside the territory to which "Article 10 of the regulation shall not the law applies as long as the person who has sustained the accident was insured at affect the provisions under which the time of the accident with a German accidents (and occupational diseases) statutory accident insurance institution. occurring outside the territory of the Federal Republic of Germany, and Article 12 (1) of that law provides that periods completed outside that territory, the pension to be granted in application do not give rise to payment of benefits, of Article 5 for an accident at work or or only give rise to payment of benefits an occupational disease shall be under certain conditions, when those suspended as long as the recipient habi- entitled to them reside outside the tually resides outside the territory to territory of the Federal Republic of which the law applies. In districts Germany." situated within the territory to which the law applies the grant of benefits in kind C — Facts is excluded. Mr Tinelli, an Italian national born in Article 13 provides that when the 1914, sustained an accident at work on accident at work or the occupational 27 September 1944 when he was disease occurred prior to 9 May 1945 outside the territory to which the law employed by the Soda-Fabrik Stassfurt, applies and where the recipient had the at present on the territory of the German right to compensation for the accident Democratic Republic. In 1969 he applied from a German statutory accident for an invalidity pension to the Berufsgenossenschaft der chemischen insurance institution the pension may be Industrie (Social Insurance Fund for the paid to a German or to a former German Chemical Industry, hereinafter referred national living on the territory of a to as "the Fund"). foreign State. Such a pension is not a social security benefit. Persons who were In reliance on Article 12 (1) of the compelled to leave the territory of the Fremdrentengesetz in conjunction with German Reich between 30 January 1933 Annex VC 1 (b) of Regulation No and 8 May 1945 are regarded as former 1408/71, the Fund on 14 March 1974 German nationals. refused to grant benefits to Mr Tinelli on the ground that at that time he had his B — The relevant Community provisions habitual residence in Italy, that is to say

A — Observations submitted by the D — The reference for a preliminary German Government ruling The German Government emphasizes Mr Tinelli did not accept this partial that in the judgment in Case 79/76 acknowledgment but appealed to the (Fossi, [1977] ECR 667), the Court Landessozialgericht Baden-Württemberg, declared that the exclusion from the applying for payment of the invalidity scope of social security of legislation on pension for the period from 27 substitute pensions and pensions awarded September 1944 to 23 June 1976. By to certain categories of persons residing order of 19 May 1978 the Landessozial- abroad, which contained measures for gericht decided to stay the proceedings the integration of persons deponed and and to refer the following question to refugees in the form of compensation for the Court of Justice for a preliminary the loss of certain acquired rights or ruling in pursance of Article 177 of the EEC Treaty: rights in course of acquisition, was lawful, at least to the extent to which "Are that legislation related to benefits paid in (a) Article 50, in conjunction with respect of insurance periods completed Annex GIA2, of Regulation No 3 of outside the federal territory, that is to the Council of 25 August 1958 say, for that pan of those provisions concerning social security for which concerns pensions. migrant workers; and The decisive considerations which led

(b) Article 89, in conjunction with the Court to form that view apply in the Annex VC 1 (b), of Regulation No same way to that part of the legislation 1408/71 of the Council of 14 June which relates to compensation for 1971 on the application of social accidents at work.

— The legislation adopted makes it provisions but that such provisions can possible to pay compensation for the apply solely to accidents which have loss of the rights of refugees and occurred after the entry into force of the persons deported who after the war regulation. settled on federal territory. Further- However, an authorization to a Member more, that legislation equally State to derogate from the fundamental provides — as is clearly emphasized principle that the place of residence of a by the character of the rules relating person entitled to social security benefits to social cases — for the grant of is legally irrelevant seems contrary to benefits to other persons, German or Article 51 and to the general principles non-German, provided that they of the Treaty. Paradoxically, such an were affiliated at the time of the authorization would have the result that, accident to a German insurance in order to preserve his right to benefit, institution and that at the present he would have to change his residence. time they reside on federal territory. The solution arrived at in the judgment According to the German in Case 79/76 should not be transposed Government, it would have been to this case: that judgment was given on especially harsh towards the persons a question of interpretation and not of concerned to make them bear the validity; it concerns an invalidity pension consequences of the division of and not benefits relating to an accident Germany and of the absence of at work, which Annex VC 1 (b) agreed rules between the two expressly refers to as social security German States. It was in pursuance benefits. of this principle of integration that For the solution of this case some Mr Tinelli has been receiving benefits since he has settled on federal relevant information may be found in the territory; judgments in the "Algerian" cases and in particular in that in Case 112/75 — The payment of the benefits in (Hirardin, [1976] ECR 553). What that question to nationals is of a discre- judgment states with regard to discrim- tionary nature where they are ination based on nationality must apply residing abroad (Articles 12 and 13 also to discrimination based on of the Fremdrentengesetz). Mr residence, which as a general rule Tinelli does not fulfil the conditions amounts only to disguised discrimination of the aforesaid Article 13 and is in based on nationality. the same position as the person concerned in Case 79/76. Consequently, Annex GIA2 of Regu- lation No 3 is therefore valid if it is

reside outside the territory of the Federal The Commission recalls that in Case Republic of Germany". 79/76 the Bundessozialgericht assessed the compatibility of the suspensory C — Observations submitted by the provisions of the German legislation at Council of the European issue with Community law from the Communities point of view of equality of treatment referred to in Regulations Nos 3 and The Council recalls the case-law of the 1408/71 and consequently considered as doubtful only the provisions authorizing Court with regard to the material and the grant of benefits to Germans but not the territorial scope (the problem of to foreigners. Here the court making the social assistance and the "Algerian" cases reference on the other hand is interested respectively) of Regulation No 1408/71. solely in the question of the compatibility of the suspensory provisions with the In the Council's view the question referred to the Court in fact raises three export guarantee. This difference in the point of departure in the two cases is, as distinct points: far as the Commission is concerned, of no importance as regards the answer to — The validity of Article 89 of Regu- be given to the Landessozialgericht. lation No 1408/71, considered in Here, as in Case 79/76, what is at issue isolation from the provisions of is a provision the purpose of which is to Annex V, must not be called in facilitate the social and economic question; integration of refugees and persons deported whose rights acquired under — As regards the compatibility of insurance could no longer be realized Annex VC 1 (b) with the Treaty, the after the end of the Second World War. Council has, as regards the implementation of Article 51, a The Court's answer in the above-

Decision

1 By order of 19 May 1978, received at the Court on 19 June 1978, the Lan- dessozialgericht Baden-Württemberg referred to the Court, for a preliminary ruling in pursuance of Article 177 of the EEC Treaty, a question relating to the compatibility with Article 51 of the Treaty of Article 50, in conjunction with Annex GIA2, of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561), and of Article 89, in conjunction with Annex VC 1 (b), of Regulation (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 (Official Journal, English Special Edition, 1971 (II), p. 416).

2 This question arose within the context of an action concerning the right to payment of an invalidity pension under German legislation of an Italian national, the plaintiff in the main action, who, when he was employed at Stassfurt (at present on the territory of the German Democratic Republic) suffered an accident at work on 27 September 1944.

3 In 1969 the person concerned made an application for a pension to the Berufsgenossenschaft der chemischen Industrie (Social Insurance Fund for the Chemical Industry, hereinafter referred to as "the Fund"), the defendant in the main action, but on 14 March 1974 was refused a pension on the ground that at that time he resided outside the territory of the Federal Republic of Germany.

On 23 June 1976 he transferred his residence to the Federal Republic of Germany and by decision of 20 December 1977 the Fund granted him an invalidity pension corresponding to a 30% disability for the period sub- sequent to 23 June 1976.

"Article 10 of the regulation and the corresponding provisions of the bilateral agreements mentioned in Annex D to the regulation shall not affect the provisions concerning ‘Fremdrenten’ and the payment of benefits in the case of residence outside the territory of the Federal Republic of Germany by virtue of which periods completed outside that territory do not give rise to payment of benefits as long as the person entitled resides outside the Federal Republic of Germany."

Annex VC 1 (b) to Regulation No 1408/71 reads as follows:

"Article 10 of the regulation shall not affect the provisions under which accidents (and occupational disease) occurring outside the territory of the Federal Republic of Germany, and periods completed outside that territory, do not give rise to payment of benefits, or only give rise to payment of

TINELLI BERUFSGENOSSENSCHAFT DER CHEMISCHEN INDUSTRIE

benefits under certain conditions, when those entitled to them reside outside the territory of the Federal Republic of Germany".

7 In its observations the German Government has emphasized that the purpose of the legislation on substitute pensions is to facilitate the re-integration, following events connected with the National Socialist régime and the Second World War, of exiles and refugees who contribute by their work to reconstruction in the Federal Republic of Germany.

That conclusion is, moreover, confirmed by Annex CIA1 and 2 to Regu- lation No 3 and by Annex VC 1 (b) to Regulation No 1408/71, which exclude the payment of benefits on the ground of accidents at work, such as

JUDGMENT OF 22. 2. 1979 — CASE 144/78

that in this case, as long as the person entitled resides outside the Federal Republic of Germany.

10 In stating its reasons for referring this question to the Court the Landes- sozialgericht raised the question whether the provisions at issue do not conflict with a superior rule of law and whether in consequence Article 10 (1) of Regulation No 3 and Article 10 (1) of Regulation No 1408/71 must be applied without the restriction laid down in the annexes.

Article 51 of the Treaty requires the Council to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers in particular by making arrangements to secure for migrant workers the payment of benefits to persons resident in the territories of the Member States.

Restrictions in the sense referred to in Articles 50 of Regulation No 3 and 89 of Regulation No 1408/71 and the annexes previously referred to are not provided for in that provision.

On those grounds,

THE COURT,

in answer to the question referred to it by the Landessozialgericht Baden- Württemberg by order of 19 May 1978, hereby rules:

Consideration of the provisions of Article 50 of Regulation No 3 in conjunction with Annex GIA thereto and of Article 89 of Regulation No 1408/71 in conjunction with Annex VC 1 (b) thereto has disclosed no factor of such a kind as to affect the validity of those provisions.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait