C-70/80

BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE [Federal Insurance Office for Clerical Staff], Berlin

on the interpretation of the Community rules applicable in the field of social security,

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

The facts of the case, the course of [Insurance Code] and Article 140 the procedure and the observations of the Angestelltenversicherungsge- submitted pursuant to Article 20 of the setz [Clerical Staff Insurance Law], Protocol on the Statute of the Court of pay contributions retroactively for Justice of the EEC may be summarized periods between 1 January 1933 as follows: and 8 May 1945 or until such time as they again come within the scope of this Law, though not beyond 31 I — Facts and written p r o c e d u r e December 1955, in so far as those periods do not fall before the The plaintiff in the main action, Mrs attainment of the age of 16 years or Tamara Vigier, was born on 8 July 1922 after attainment of the age of 65 in Jena, Germany. She left Germany in years and are not already covered March 1933 at the age of 10. or deemed to be covered by contri- butions, unless the period of per- The plaintiff is a victim of persecution secution is already, or should be, within the meaning of Article 1 of the taken into account in an insurance "Bundesentschädigungsgesetz" [Federal scheme governed by public law or Compensation Law] and she has received in a scheme governed by the legal compensation for loss of educational principles applicable to civil opportunities. servants. Mrs Vigier lives and works in France and is affiliated to the French social (2) Paragraph (1) applies correspond- security system. On 17 December 1975 ingly to victims of persecution who she applied to the defendant institution have completed an insurance period for authorization to pay retroactively of at least 60 calendar months and voluntary contributions for invalidity and who, by a decision which is final or old-age insurance under Article 10 a (2) which can no longer be challenged, of the "Gesetz zur Regelung der have been granted compensation Wiedergutmachung nationalsozialisti- under Article 116 or Article 118 of schen Unrechts in der Sozialversiche- the Bundesentschädigungsgesetz for rung" [German Law on the reparation of loss of educational opportunities injustice perpetrated under National within the meaning of that Law or Socialism in the field of social who began to suffer persecution insurance], hereinafter referred to as within 12 months after their "the Reparation Law". education ended."

providing invalidity and old-age " 1 . Must Article 4 (1) of Regulation insurance. An insured person could be (EEC) N o 1408/71, whereby that authorized to pay voluntary contri- regulation applies to legislation butions retroactively under Article 10 a concerning 'branches of social (2) of the Reparation Law only if he had security', be construed as meaning completed a qualifying insurance period that entitlement to pay contributions of 60 calendar months. retroactively under the Law on the reparation of injustice perpetrated Mrs Vigier's application to the Sozial- under National Socialism in the field gericht [Social Court] Berlin and her of social insurance (Reparation Law) appeal to the Landessozialgericht of 22 December 1970, in the version [Higher Social Court] Berlin were of 27 June 1977 (Bundesgesetzblatt dismissed. 1970 I, p. 1846 and Bundes- gesetzblatt I 1977, p. 1040), comes within the scope of that regulation, In her appeal on a point of law to the in so far as the victims of persecution Bundessozialgericht [Federal Social must be regarded as workers within Court] the plaintiff argues inter alia that the meaning of Article 1 (a) of Regu- the judgment appealed against proceeds lation (EEC) N o 1408/71? upon a misapplication of Article 9 (2) of Regulation N o 1408/71. If the answer is in the affirmative, does that special right to pay contri- butions retroactively form part of a Article 9 (2) of Regulation No 1408/71 benefit scheme within the meaning provides : of Article 4 (4) of Regulation (EEC) No 1408/71, thus excluding the "Where, under the legislation of a applicability of the regulation? Member State, admission to voluntary or optional continued insurance is conditional upon completion of periods 2. If Regulation N o 1408/71 is of insurance, the periods of insurance or applicable : residence completed under the legislation does Article 9 (2) thereof apply to of another Member State shall be taken the insurance period of 60 months into account, to the extent required, as required under Article 10 a of the if they were completed under the Reparation Law in so far as a legislation of the first State." person's status as an insured person (and thus as a victim of persecution) under Article 1 (1) of the Reparation In the absence of any proviso under Part Law is thereby created?" C, paragraph 8 (b), of Annex V to Regu- lation No 1408/71 it follows from the principle of equality of treatment enunciated in Article 3 of Regulation N o The Bundessozialgericht proceeded on 1408/71 that all persons who belong to the basis of the following considerations : the insurance scheme of one Member State also belong to the German 1. It considers that there is doubt as to insurance scheme. whether the German rules on the reparation of injustice perpetrated By order of 19 December 1979 the under National Socialism in the field Bundessozialgericht stayed proceedings of social insurance come within the and requested the Court to give a pre- scope of Regulation N o 1408/71 as liminary ruling on the following defined by Article 4 (1) and (4) of questions : that regulation.

The Reparation Law, which contains versicherungsanstalt für Angestellte, special provisions applying to a represented by Mr Michaelis, and by particular group of persons, seeks to the Commission of the European redress injustice perpetrated under Communities, represented by its Legal National Socialism in the field of Adviser, N. Koch, acting as Agent. social insurance. As a law on compensation, its purpose is to deal On hearing the report of the Judge- with a national problem with which Rapporteur and the views of the the EEC Treaty is not concerned. Advocate General, the Court decided to open the oral procedure without any 2. It expresses doubts as to whether the preparatory inquiry. provisions of the Reparation Law belong to the special schemes within the meaning of Article 4 (4) of Regu- II — W r i t t e n o b s e r v a t i o n s sub- lation No 1408/71, which are mitted to the C o u r t expressly excluded from the scope of the regulation. Mrs Vigier submits that the provisions of On the other hand, the provisions of the Reparation Law cannot form part of the Reparation Law are connected the special schemes referred to in Article with the kinds of benefit referred to 4 (4) of Regulation No 1408/71. On the in Article 4 (1) of the EEC regulation, contrary, they are an integral part of inasmuch as they govern legal German social security law. Conse- relationships connected with those quently, Article 9 (2) of that regulation benefits. must be applied to Article 10 a (2) of the Reparation Law. 3. If Regulation No 1408/71 were to be held applicable in relation to the There is no foundation for the doubts Reparation Law, in particular Article expressed by the Bundessozialgericht as 10 thereof, it is not clear whether as a to whether, in view of the arrangement result of Article 9 (2) of the regu- and objectives of the provisions of the lation the total 60-month period of Reparation Law, the scheme for the previous insurance, including the reparation of injustice perpetrated under contribution required under Article 1 National Socialism in the field of social (1) of the Reparation Law making it insurance in Germany comes within the possible to acquire the status of scope of Regulation N o 1408/71. Whilst insured person, may be replaced by the provision of compensation for contributions to the invalidity and National Socialist injustices is, at federal old-age insurance scheme of another level, the responsibility of the Federal Member State of the EEC. Minister for Finance, the rules on the reparation of National Socialist injustice in the field of social security are a matter The order making the reference was for the Federal Minister for Labour and received at the Court Registry on 8 April Social Affairs. Moreover, the provisions 1980. concerning the reparation of injustice in the field of social insurance have the Pursuant to Article 20 of the Protocol on same aim as Regulation N o 1408/71, the Statute of the Court of Justice of the namely the improvement of the position EEC written observations were submit- in connexion with social insurance by ted by Mrs Tamara Vigier, represented means of the elimination of disad- by Rechtsanwälte Hammerschmid and vantages arising from a person's choice Orthmann, Cologne, by the Bundes- of his place of residence within the EEC.

According to Mrs Vigier, the main of that persecution would be perpetuated obstacle to a decision in her favour has if retroactive payment were prevented. been the Bundessozialgerichťs doubts on the question whether, as well as applying to insurance periods on which entitlement to benefits is based, Article 9 In view of the nature of the German (2) of Regulation N o 1408/71 also legislation in question in this case and in •applies to periods of prior insurance order to avoid the perpetuation of the which create the relationship between the consequences of the National Socialist social insurance scheme and the insured regime, Mrs Vigier submits that the person and thus the status of insured insurance period of 60 months, required

The Bundesversicherungsanstalt fiir Ange stellte states that the provisions of the Reparation Law must be regarded as legislation within the meaning of Article In view of that rule, compelling reasons 1 0) of Regulation N o 1408/71, since would have to be advanced in order to they amend or supplement inter alia justify deviating from the terms of that certain provisions of the Reichsversiche provision and to explain why it is rungsordnung [Insurance Code], the necessary to adopt a narrow construction Angestelltenversicherungsgesetz [Clerical to the effect that the contribution which Staff Insurance Law] and the Reichs- creates the status of insured person knappschaftsgesetz [Law on invalidity cannot be replaced by a corresponding and old-age insurance for miners]. payment in another Member State.

situation and needs. It is therefore a question of statutory provisions which Finally, Mrs Vigier draws the Court's belong to the field of social security attention to the consequences of a within the meaning of Article 51 of the narrow construction of Article 9 (2). The Treaty and Article 1 (j) of Regulation failure to pay the German contribution N o 1408/71. Those rules concern only a required in order to be entitled to pay section of persons covered by social retroactively voluntary contributions for insurance in Germany, namely those who invalidity and old-age insurance was as victims of National Socialist per caused by persecution. The consequences secution have suffered prejudice in the

field of social insurance. But the fact that 2 ( 1 ) and Article 1 (a) of that regulation. its scope is limited in this way does not In terms of Article 1 (a) the plaintiff's prevent the Reparation Law from status as a worker depends on her status forming part of the general law on social as an insured person under a social security, for it is not unusual in German security scheme. The conditions of legislative practice for rules which apply affiliation are a matter for the national only to a particular category of insured provisions of each Member State (Case persons to be dealt with in a special law. 110/79 Coonan [1980] ECR 1445). The main action concerns the applicability of the regulation to a right claimed under German legislation and the plaintiffs Under the Reparation Law the link status as a worker must therefore be between the victims of National Socialist judged from the point of view of persecution and the German pension German social security law. Thus in the insurance scheme derives from the absence of affiliation to the German payment of one contribution to a social security scheme the plaintiff is not German invalidity and old-age insurance a worker within the meaning of the regu- institution. In respect of that condition, lation for the purpose of the possible which concerns a person's status as a application of the internal provisions of victim of persecution, neither Article 9 German law. (2) of Regulation N o 1408/71 nor any other provision of Community law puts periods of insurance or residence in other Member States on a par with It is true that the view may be taken that German contributions. The Bundesver- for the purpose of applying French sicherungsanstalt submits that the social legislation on social insurance the security law of the Community does not plaintiff is to be regarded as a worker in principle have any bearing on the within the meaning of Article 1 (a) of the general legal status which a Member regulation. However, that status as a State attributes to particular categories of worker is of no significance for the persons in the area covered by national internal law of another Member State in legislation. Consequently, the defendant which the plaintiff has never worked. in the main action supports the opinion expressed by the Bundessozialgericht to the effect that Article 9 (2) of Regulation No 1408/71 must be construed narrowly The Commission considers that the as meaning that it does not affect a benefits under the Reparation Law contribution which creates a person's should be regarded as social security status as an insured person. benefits within the meaning of Article 4 of Regulation No 1408/71.

actively. Thus in this type of case the consequences. Admittedly, it is a reparation provided by the Reparation question of reparation, but it is confined Law consists in giving persons an oppor- to the field of statutory invalidity and tunity to acquire entitlement to benefits old-age insurance, to tne persons who which it was not possible to obtain are affiliated to that insurance and to the as a result of persecution. Those replacement of lost or missed oppor- compensatory benefits form an integral tunities to acquire pension rights. part of pension benefits in the general scheme of social security benefits.

But it might be objected that application of the regulation. The the right given by that law to pay contri- acquisition of that status depends on the butions retroactively does not concern legal provisions of the Member States; the worker in his capacity as an insured it cannot be acquired by virtue of person, but in his capacity as a victim of the assimilation of insurance periods persecution and that the principles of the completed in other Member States to law on the free movement of workers insurance periods completed internally. within the Community cannot be Access to social insurance is given only transferred to the field of national law by the internal law of the Member State on compensation. concerned (Case 266/78 Brunon [1979] ECR 2705 and Case 110/79 Coonan [1980] ECR 1445).

VIGIER v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

amended on 27 June 1977, in so far only in so far as a person's status as as the victims of persecution must be an insured person under Article 1 (1) regarded as workers within the of that Law is not thereby created. meaning of Article 1 (a) of that regu- lation. Affiliation to a social security scheme of the Federal Republic of III — Oral procedure Germany is decisive in that regard. 2. The right to pay contributions retro- Mrs Tamara Vigier, represented by I. actively under the Reparation Law Hammerschmid of the Cologne Bar, and does not form part of a benefit the Commission of the European scheme within the meaning of Article Communities, represented by its Legal 4 (4) of Regulation No 1408/71, such Adviser, N. Koch, acting as Agent, as would exclude the applicability of presented oral argument at the sitting on the regulation. 18 November 1980. 3. Article 9 (2) of Regulation No 1408/71 applies to the insurance The Advocate General delivered his period of 60 months required under opinion at the sitting on 10 December Article 10 a of the Reparation Law 1980.

Decision

1 By an order dated 19 December 1979, which was received at the Court on 4 March 1980, the Bundessozialgericht referred to the Court for a pre- liminary ruling under Article 177 of the EEC Treaty two questions on the interpretation 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 (Official Journal, English Special Edition, 1971 (II) p. 416).

6 From the order making the reference for a preliminary ruling it appears that in order to have the status of insured person under that provision the person concerned must have paid at least one contribution to the competent German institution.

7 In reliance on the aforesaid Article 10 a, Mrs Vigier applied to the defendant in the main action in December 1975 for authorization to make retroactive and voluntary payment of contributions to invalidity and old-age insurance. That application was dismissed on the ground that, as she did not have the status of insured person, Mrs Vigier did not satisfy the conditions laid down by the Reparation Law for the retroactive payment of contributions.

8 After the failure of her action in the Sozialgericht Berlin and her appeal to the Landessozialgericht Berlin, the plaintiff in the main action appealed on a point of law to the Bundessozialgericht. Her main argument was that the judgment appealed against rested on an incorrect application of Article 9 (2) of Regulation No 1408/71 of the Council. She submitted that by virtue of that provision insurance periods which she had completed in France should be taken into account as if they had been completed under the German legislation.

9 In those circumstances the Bundessozialgericht has submitted the following questions : 1. Must Article 4 (1) of Regulation (EEC) No 1408/71, whereby that regu- lation applies to legislation concerning "branches of social security", be construed as meaning that entitlement to pay contributions retroactively

VIGIER v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

1 1 According to the order making the reference, the provisions of the Reparation Law govern legal relationships which are indeed connected with the types of benefit referred to in Article 4 (1) of Regulation No 1408/71 but by reason of their special purpose (the compensation of a particular category of persons who have suffered persecution) it is not certain that they must be counted amongst the provisions adopted in order to deal with those types of benefit.

JUDGMENT OF 27. 1. 1981 — CASE 70/80

12 The defendant in the main action submits that by virtue of the rules laid down therein the provisions of the Reparation Law must be regarded as legislation within the meaning of Article 1 (j) °f Regulation No 1408/71, since they amend or supplement inter alia certain provisions of the Reichsversicherungsordnung [Insurance Code], the Angestelltenversiche- rungsgesetz [Clerical Staff Insurance Law] and the Reichsknappschaftsgesetz [Law on invalidity and old-age insurance for miners]. According to the declaration made by the Federal Republic of Germany pursuant to Article 5 of the regulation those laws come within the scope of the regulation.

1 3 Further, it is clear that by reason of its subject-matter the Reparation Law cannot be classed as legislation dealing with social assistance or with the special schemes referred to in Article 4 (4) of the regulation. The provisions of the Reparation Law bestow upon persons concerned — if they satisfy the conditions laid down therein — rights which are not dependent on any discretionary appraisal of their personal situation and needs. Thus it is a question of legal provisions falling within the scope of social security within the meaning of Article 51 of the Treaty and Article 1 (j) of the regulation.

18 From the order making the reference it appears that the legislation in question applies only to insured persons who are victims of persecution within the meaning of the Federal Compensation Law, and to their surviving relations, and that in order to have the status of insured person it is necessary to have paid at least one contribution as a worker to a German social insurance institution.

19 According to the case-law of the Court, in particular its judgment of 24 April 1980 in Case 110/79 Coonan [1980] ECR 1445, where national legislation makes affiliation to a social security scheme conditional on prior affiliation by the person concerned to the national social security scheme, Regulation N o 1408/71 does not compel Member States to treat as equivalent insurance periods completed in another Member State and those which must have been completed previously on national territory.

20 Consequently, the reply to the second question should be that Article 9 (2) of Regulation No 1408/71 must be construed as meaning that it does not require a social insurance institution of a Member State to take into account periods of insurance completed under the legislation of another Member State when the worker concerned has never paid, in the first Member State, the contribution required by law in order to create his status as an insured person under the legislation of that Member State.

Costs

21 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 national court, the decision on costs is a matter for that court.

Mertens de Wilmars Pescatore Mackenzie Stuart Koopmans O'Keeffe

Bosco Touffait Due Everling

Delivered in open court in Luxembourg on 27 January 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President