C-55/81

J U D G M E N T OF T H E C O U R T (SECOND CHAMBER) 18 F E B R U A R Y 1982 1

Georges Vermaut v Office National des Pensions pour Travailleurs Salariés (reference for a preliminary ruling from the Tribunal du Travail, Liège)

(Social security — Pension rights)

Case 55/81

Social security for migrant workers — Insurance covering old age and death — Aggregation of periods of insurance — Periods of less than a year completed under the legislation of another Member State — Taking into account of such periods — Requirement by the competent Member State of contributions corresponding to such periods — Not permitted (Regulation No 1408/71 of the Council Art. 48 (2))

1. Pursuant to Article 48 (2) of Regu- 2. A Member State is not entitled to lation N o 1408/71 the national require the payment by the worker of institution competent in retirement contributions corresponding to the pension matters must take account of periods of insurance referred to in periods of insurance of less than one Article 48 of Regulation No 1408/71 year'completed by the worker under and completed under the legislation the legislation of other Member States of other Member States or the even if the right to a pension arises transfer of the contributions for those under national legislation alone. periods which may have been paid in such Member States.

O F F I C E N A T I O N A L DES P E N S I O N S POUR TRAVAILLEURS SALARIÉS

on the interpretation of Article 48 of R e g u l a t i o n ( E E C ) N o 1 4 0 8 / 7 1 of the Council of 14 J u n e 1971 on the application of social security schemes t o employed persons a n d their families m o v i n g within the C o m m u n i t y (Official J o u r n a l , English Special Edition 1971 (II), p. 416),

T H E C O U R T (Second C h a m b e r )

composed of: O . D u e , President of C h a m b e r , A. C h l o r o s and F. Grévisse, Judges,

Advocate G e n e r a l : P . V e r L o r e n van T h e m a a t Registrar: A. V a n H o u t t e

gives the following

7 September 1976 decided to award him proceedings on 28 July 1977 before the a retirement pension of BFR 23 432 from Tribunal du Travail, Liège, claiming in 1 June 1977 pursuant to the provisions of particular that the years 1938 and 1939 the Arrêté Royal [Royal Decree] of 24 should be duly taken into account. October 1967 (Moniteur Belge of 27 October 1967). In the calculation there- The Landesversicherungsanstalt Rhein- of account was taken of normal provinz [Regional Insurance Office for employment, in particular for the years the Rhine Province], Düsseldorf and the 1936, 1937 and 1949 to 1950, and of Department of Health and Social employment of less than 185 days for the Security confirmed, in reply to an

Tribunal du Travail, Liège, from which in accordance with the provisions of the the plaintiff requested a ruling in his Royal Decree of 21 December 1967 favour on the basis of Regulation N o (Moniteur Belge of 16 January 1968). 1408/71, that periods of less than a year According to the fourth subparagraph of must be taken into account with regard Article 32 (1) of that decree: to' the acquisition of the right to the theoretical pension but that they must "An employed person who pursued an not be taken into account in order to activity in that capacity in the course of determine the apportionment of the the period 1 January 1938 to 30 pension and consequently, since the right December 1944 is deemed to have to the national pension was acquired in continued in that activity as an employed Belgium, those periods should be disre- person under the same conditions as to garded. duration throughout the entire period In those circumstances the Tribunal du

army . . ." Member State does not amount to in so far as the person concerned was an one year, is the competent institution employed person at the time when the — in this case the Office National event giving rise to such equivalent des Pensions pour Travailleurs treatment occurred or if that person has Salariés — permitted not to take already entered on a period treated as account of those periods because equivalent to a period of activity. entitlement to a national pension exists; or must the competent Since Mr Vermaut disagreed with the institution take those periods into decision of the Office he instituted account as if they had been

The judgment making the reference was recorded at the Court Registry on 11 However, this does not apply, according March 1981. In accordance with Article to the Office, in the case of paragraphs 20 of the Protocol on the Statute of the (2) and (3). In this connection the Office Court of Justice of the EEC written maintains that the use of the word observations were lodged by the follow- "other" before the words "Member ing: G. Vermaut; R. Masyn, the general States concerned" makes it possible to manager, for the Office; G. Dagtoglou, draw a distinction between the scope of Treasury Solicitor's Department, for the Article 48 (2) and (3), which covers all United Kingdom; and by Jean Amphoux, Member States which may rely on the Legal Adviser to the Commission, acting first paragraph because periods of as Agent, for the Commission of the insurance amounting to less than one European Communities. year do not confer a right to benefits. In On hearing the report of the Judge- this connection it relies upon the Rapporteur and the views of the statement of the reasons relating to the Advocate General, the Court decided, by articles amending Regulation N o 3, an order of 16 September 1981, to assign submitted by the Commission to the the case to the Second Chamber Council on 11 January 1966 (Journal pursuant to Article 95 of the Rules of Officiel N o 194 of 28 October 1966, Procedure and to open the oral p. 3333). procedure without any preparatory inquiry. Pursuing that line of argument the II — O b s e r v a t i o n s submitted Office contends that, with regard to the p u r s u a n t t o A r t i c l e 20 of acquisition of the pension right (the the P r o t o c o l on the Statute theoretical amount) the Belgian State of t h e C o u r t of J u s t i c e of must take into account the periods of the E E C insurance completed in other Member States, in accordance with Article 48 (2) Mr Vermaut merely states that he is but that method of calculation has, satisfied with the exposition of the however, no effect on the actual benefit

Finally the United Kingdom considers The Office in conclusion suggests the that the article in question is a provision following reply to the first question : which operates and is intended to operate without the need for financial provision. Moreover the amounts at "Article 48 (3) of Regulation No stake in individual cases, as in this case, 1408/71 does not apply to Member cannot be large and would involve States which recognize rights to benefits disproportionate administrative expense. in accordance with their internal The only solution consistent with legislation alone", sensible and economical administration is to let the cost of implementing Article 48 lie where it falls, on the basis that taken overall each Member State will neither and furthermore it is of the view that gain nor lose. consideration of the second question is not required within the framework of this case. The Commission observes first of all that the problems in this case display two aspects : The United Kingdom confines its obser- vations to the second preliminary question, that is to say, to the transfer of contributions between Member States (i) That of taking into account periods where Article 48 of Regulation No completed abroad for supplementing 1408/71 requires a State to take into periods of military service or of

JUDGMENT OF 18. 2. 1982 — CASE 55/81

article and of Article 48 of Regulation to the Court which are solely No 1408/71 read together. concerned with the interpretation of Article 48 of the said regulation. With regard to the second question the Commission admits that Regulation N o 1408/71 is silent as to the problem of the The Commission considers that, with payment of contributions corresponding regard to the first aspect, the proper to the periods of insurance conferring application of Article 13 (2) (d) should the right to benefits but it emphasizes have led the Office to take into account that in any event the State responsible the periods of insurance completed in the for payment may not render the award

of the problem. The application of that provision is limited to the specific case The Commission proposes that the where the periods completed by the following answers should be given to the worker under different legal systems questions submitted by the Tribunal du were less than a year and where, through Travail : the application of Article 48 (1), all institutions are relieved of their " 1 . The competent institution must, obligations towards the worker. pursuant to Article 48 (2) of Regu- lation (EEC) No 1408/71, take into

VERMAUT v ONPTS

under the provisions of the national transfer of contributions between legislation applied by the institution. Member States".

2. The competent institution is required to consider periods of insurance of III — Oral procedure less than a year duly completed in the territory of other Member States At the sitting on 22 October 1981 oral as fulfilling all the conditions argument was presented by the required by its own legislation in following: by J. Peltot, Advocate, for the order that they may be taken into Office; by J. Amphoux, Legal Adviser to account in fixing the pension of the the Commission, acting as Agent, for claimant. the Commission of the European Communities. 3. The system of coordination established by Regulations (EEC) The Advocate General delivered his Nos 1408/71 and 574/72 does not opinion at the sitting on 17 December include provisions providing for the 1981.

Decision

1 By judgment of 25 February 1981, which was received at the Court on 11 March 1981, the Seventh Chamber of the Tribunal du Travail [Labour Tribunal], Liège, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Regu- lation (EEC) N o 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 These questions were raised in connection with a dispute concerning the refusal of the Office National des Pensions pour Travailleurs Salariés [National Pension Office for Employed Persons, hereinafter referred to as "the Office"], a Belgian social security body, to take into account in awarding a retirement pension periods of employment of less than a year completed in Member States other than Belgium so that the recipient of that pension was deprived of the increase for the war years 1940 to 1945 provided for by Belgian legislation.

1. Where the length of the periods of insurance under the legislation of a Member State does not amount to one year, is the competent institution — in this case the Office National des Pensions pour Travailleurs Salariés — permitted not to take account of those periods because entitlement to a national pension exists; or must the competent institution take those periods into account as if they had been completed under the legislation of the State of that institution?

2. In the case of pensions taking effect after 1 January 1977, Belgian law requires payment of contributions. If Belgium must regard the periods in question as having been completed under its legislation, is it entitled to

VERMAUT v ONPTS

require payment of contributions by the plaintiff, may it request transfer of contributions paid to the Federal Republic of Germany and the United Kingdom or must it take the periods in question into consideration without being able to claim anything from the plaintiff, the Federal Republic of Germany or the United Kingdom?

First question

8 By Question 1 the Tribunal du Travail, Liège, wishes to establish whether the Belgian institution which is competent in retirement pension matters must take account of periods of insurance of less than a year completed under the legislation of two other Member States in which such periods do not confer entitlement to pension rights or whether that institution may grant the pension on the basis of Belgian legislation alone without taking account of the periods of insurance completed in those two States.

1 3 By Question 2 the Tribunal du Travail, Liège, wishes to establish whether a Member State may, on the ground that its national legislation renders the award of a pension conditional on the payment of contributions, require from the worker payment of contributions corresponding to the periods of insurance referred to in Article 48 of Regulation N o 1408/71 and completed under the legislation of other Member States or request the transfer of the contributions in respect of such periods which have been paid in such Member States.

1 4 Regulation N o 1408/71 does not contain any provision on the payment by the worker of contributions in respect of the periods of insurance in question. The objectives pursued by the regulation in question imply that the obligations flowing from that regulation for the benefit of migrant workers should be uniformly enforced in all Member States. The imposition of additional conditions, such as that of payment of the contributions by the worker, would accordingly be contrary to the system established by the regu- lation and might result in inequality of treatment of recipients in the various Member States.

15 The transfer of contributions paid in the other Member States is accordingly not prescribed by the above-mentioned regulation. Such a transfer is also contrary to the system established by the regulation which, in order to simplify matters, permitted that, by reason of their relatively insignificant amount, charges which must be borne by the institutions concerned of the Member States which are required to take account, in determining the pensions which they award, of periods of insurance of less than a year completed under the legislation of other Member States should be compensated on a fixed scale and did not justify the establishment between institutions of the Member States of a system of reimbursement of contri- butions in respect of those short periods. The addition of further conditions

T H E C O U R T (Second Chamber)

in answer to the questions referred to it by the Tribunal du Travail, Liège, by judgment of 25 February 1981, hereby rules:

1. Pursuant to Article 48 (2) of Regulation N o 1408/71 the national institution competent in retirement pension matters must take account of periods of insurance of less than a year completed by the worker under the legislation of other Member States even if the right to a pension arises under national legislation alone.

2. A Member State is not entitled to require the payment by the worker of contributions corresponding to the periods of insurance referred to in Article 48 of Regulation No 1408/71 and completed under the

OPINION OF MR VERLOREN VAN THEMAAT — CASE 55/81

legislation of other Member States or the transfer of the contributions for those periods which may have been paid in such Member States.