C-279/82

JUDGMENT OF 15. 9. 1983 — CASE 279/82

Community regulations and which reduced was acquired by virtue of the they could not obtain without them, application of the provisions of that the aim of Articles 48 to 51 of the regulation. Treaty would not be attained if the 2. The first sentence of Article 12 (2) of social security advantages which a Regulation No 1408/71 must be worker may derive from the construed as excluding the reduction legislation of a single Member State or suspension of a benefit acquired were to be withdrawn or reduced as a solely under the legislation of one result of the application of those regu­ Member State even if the benefits to lations. be taken into account in effecting the It must therefore be accepted that the reduction, being acquired under the application, pursuant to Article 12 (2) legislation of another Member State, of Regulation No 1408/71, of a were awarded in application of Article provision designed to prevent the 57 of Regulation No 1408/71 and if overlapping of national benefits alone the competent institution of the first to a benefit payable under the Member State contributes to the cost legislation of another Member State is of those benefits upon the terms set not justified unless the benefit to be out in Article 57 (3) (c).

In Case 279 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Landessozialgericht [ Higher Social Court ] für das Land Nordrhein- Westfalen in Essen for a preliminary ruling in the case pending before that court between

LEO JERZAK

and

gives the following :

JUDGMENT

Facts and Issues

The facts of the case, the procedure and "When a person who has contracted an the written observations submitted under occupational disease has, under the Article 20 of the Protocol on the Statute legislation of two or more Member of the Court of Justice of the European States, pursued an activity likely to cause Economic Community may be sum­ that disease, the benefits that he or his marized as follows: survivors may claim shall be awarded exclusively under the legislation of the last of these States whose conditions are satisfied, taking into account, where I — Facts and written procedure appropriate, the provisions of paragraphs (2) and (3)."

Leo Jerzak, a German national, worked 50.94% of the cost of that pension in the coal-mines in Germany and was borne by the German Bergbau- Belgium from 1937 to 1960. From 1961 Berufsgenossenschaft [Miners' Mutual to 1973 he was insured as coke-oven Benefit Society] pursuant to Article worker under the miners' insurance 57 (3) (c) of Regulation No 1408/71, scheme in the Federal Republic of which provides that: Germany.

" The cost of cash benefits including Having contracted silicosis as a result of pensions shall be divided between the working in the coal-mines, Mr Jerzak competent institutions of the Member was awarded a pension for occupational States in whose territories the person disease paid by the Belgian accident concerned pursued an activity likely to insurance institution in accordance with cause the disease. This division shall be Article 57 (1) of Regulation No 1408/71 carried out in the ratio which the length of the Council, which states that: of old age insurance periods completed

On 12 May 1977 Mr Jerzak lodged a Since 1973 the Bundesknappschaft has complaint. He contended that, since the provided Mr Jerzak with a miner's accident pension in Belgium and in disability pension. It was determined on Germany was based on annual re­ the basis of the provisions of German muneration and this was higher than the law alone since the amount resulting basis of assessment for the miner's from the application of Article 46 (2) of pension, that remuneration had to be Regulation No 1408/71 was less advan­ taken into account. The Bundesknapp­ tageous for him. schaft dismissed his complaint on 17 April 1978 on the ground, in particular, that by virtue of Article 12 of Regulation No 1408/71 and the provisions of Regu­ Taking into account the fact that the lation No 574/72 only the personal basis Belgian pension for occupational disease of assessment entered into the calcu­ had been increased as from 15 December lations made on the basis of Paragraph 1975 as a result of Mr Jerzak's increased 75 of the Reichsknappschaftsgesetz. degree of invalidity, the Bundesknapp­ schaft decided on 27 April 1977, on the basis of Paragraph 75 of the Reichsknappschaftsgesetz [Law on the On 2 May 1978 Mr Jerzak appealed to Miners' Insurance Fund] to suspend as the Sozialgericht [Social Court] Aachen from 15 December 1975 payment of a against the decisions of 27 April 1977 proportion of the invalidity pension arid 17 April. 1978. As his principal claim, provided under the German rules on besides asking that court to annul the miners' insurance and to require the contested decisions, he asked it to order sums wrongly received to be repaid. the Bundesknappschaft to pay him the invalidity pension without applying Paragraph 75 of the Reichsknapp­ schaftsgesetz in conformity with . the judgments in which the Bundessozial­ Paragraph 75 of the Reichsknapp­ gericht [Federal Social Court] had held, schaftsgesetz provides that in order to on the basis of the decisions of the Court determine the amount by which the of Justice on Regulations Nos 3 and 4 of benefit is to be reduced where an the Council, that a foreign accident accident pension overlaps with an pension must be left out of account when invalidity pension it must be ascertained provisions of national law against the whether the sum of the two benefits overlapping of benefits were applied. exceeds "the annual remuneration used to calculate the accident pension and 100% of the basis of assessment for the miner's pension". However, the Bundes­ knappschaft took the view that the The Bundesknappschaft argued before annual remuneration taken into account the Sozialgericht that a duty to apply by other Member States could not be provisions of national law on the

suspension of benefits arose from Article lation of that remuneration shall be 12 of Regulation No 1408/71 and governed by the provisions of German Article 7 (1) of Regulation No 574/72. It legislation." pointed out that the minutes of the Council meeting on the application of By a judgment dated 18 April 1979 the Article 7 of Regulation No 574/72 Sozialgericht Aachen granted the alterna contained the following statement by the tive claim and ordered the Bundes German delegation: knappschaft to calculate the benefit in

The Sozial annual remuneration which cannot be gericht dismissed the rest of the taken into account primarily because it application. could not be actualized, then pro visionally account should only be taken of the personal basis of assessment in On 8 June 1979 Mr Jerzak appealed order to determine the amount to be against that judgment to the Landes suspended." sozialgericht at Essen and on 20 June 1979 the Bundesknappschaft did the The Bundesknappschaft also pointed out same. that the provisions of Point E of Part I of Annex G to Regulation No 3, as Mr Jerzak, maintaining the principal supplemented by Regulation No 130/63 claims made in his application at first of 18 December 1963 (Journal Officiel, instance, asked the Landessozialgericht 28. 12. 1963, p. 2996), were not incor to order the defendant to calculate the porated in Regulation No 1408/71. invalidity pension due under the German Regulation No 3 there provides that: rules on miners' insurance without taking account of Paragraph 75 of the Reichs- "Where an invalidity pension or an knappschaftsgesetz. old-age pension payable under German legislation overlaps with an accident The Bundesknappschaft asked it to vary pension payable under the legislation of the lower court's judgment on the another Member State on account of an ground that the solution adopted by that accident at work or occupational disease court posed certain difficulties owing to the annual remuneration to be taken into the fact that the accident pension was consideration shall be that which should not the same as the annual remuneration, be taken into consideration under the of which it constituted only two thirds, German legislation at the time of the and the fact that the basic wage for the accident in the case of a person suffering purposes of the Belgian accident

applied. The determination or recalcu ruling:

" 1 . (a) Are a Member State's legal purposes of an application by provisions governing the over­ analogy of Paragraph 75 of the lapping of one social security Reichsknappschaftsgesetz contrary benefit with another (Paragraph to Articles 48 to 51 of the Treaty 75 of the Reichsknappschafts­ establishing the European Economic gesetz) applicable (the first Community or other provisions or sentence of Article 12 (2) of principles of Community law?" Regulation (EEC) No 1408/71) even where : It emerges from the order for reference (i) the benefit to be reduced has that the questions submitted by the been determined under Landessozialgericht arise from the national legislation alone following considerations : (Article 46 (1) of the regu­ lation); and (ii) a proportion of the benefit 1. Paragraph 75 of the Reichsknapp­ to be taken into account schaftsgesetz is a rule for purely internal (Article 57 (3) (c) of the use to avoid the overlapping of benefits. regulation) is borne by an It envisages only the overlapping of an insurance institution in the accident pension with a miner's pension State under whose legis­ provided under the German legislation. lation the benefit to be The highest German courts have reduced is provided? moreover ruled out the application of Paragraph 75 in situations such as that in the main proceedings. (b) Does the application of the legislation governing the over­ lapping of social security benefits 2. Referring to the judgment given by depend in principle on the pro­ the Court in Case 34/69 (Duffy [1969] portions of benefit borne? ECR 597), the Landessozialgericht raises the question whether Article 12 (2) of Regulation No 1408/71 enables an (c) Does it matter whether the "internal" rule against the overlapping of assignment by Article 57 (1) of benefits to be applied to comparable the regulation to the last benefits provided in another Member insurance institution of sole State, even though the benefits to be responsibility for awarding reduced and to be taken into account benefit operates to the advantage were not determined on the basis of that or disadvantage of the insured regulation, where the amount of the person? pension to be taken into account is, in accordance with Article 57 (3) (c) of Regulation No 1408/71, borne pro­ portionately by the social security 2. Is the extent to which the benefit is institution which provides the benefit to reduced or suspended dependent be reduced. upon the size of the proportions of the benefit to be brought into account and if so to what degree? 3. The national court, which refers to decisions of the Bundessozialgericht, 3. Is the disregarding of annual re­ wonders whether a relatively minor muneration as the upper limit for the advantage accruing in this case from the

application of Anicie 57 of Regulation Upon hearing the report of the Judge- No 1408/71, and in particular from the Rapporteur and the views of the fact that entitlement to occupational Advocate General, the Court decided to disease benefit no longer depends on open the oral procedure without any production of evidence that the disease preparatory inquiry. was caused by dangerous work carried out in a particular Member State, may justify imposing on the insured a major disadvantage resulting from the Pursuant to Article 95 (1) and (2) of the application of national provisions against Rules of Procedure the Court decided, the overlapping of benefits. With that in by an order dated 20 April 1983, to mind the Landessozialgericht wonders assign the case to the Third Chamber. whether the German authorities must take into account the whole accident pension or only the proportion borne by them under Article 57 (3) of Regulation No 1408/71. II — Summary of the written observations submitted to the Court by the Com­ 4. The Landessozialgericht considers mission that, as the above-mentioned declaration of the German delegation has no legal significance and the provisions of Point E of Pan I of Annex G to Regulation The Commission points out that in, inter No 3 were not incorporated in Regu­ alia, its judgment of 13 October 1977 in lation No 1408/71, that lacuna ought to Case 112/76 (Manzoni [1977] ECR be filled on the basis of Articles 48 to 51 1647) the Court clearly established the of the Treaty. It believes that the fact of principle that the application of Com­ not taking into account the portion munity law, in particular Article 12 of benefit determined in accordance (2) of Regulation No 1408/71, may not with Article 57 (3) (c) of Regulation have the effect of reducing or No 1408/71 and the resultant non- diminishing in any way rights acquired applicability of Article 75 of the under national legislation alone. The Reichsknappschaftsgesetz would give Commission therefore considers that it is migrant workers an unjustified not possible in this case to envisage the advantage over national workers. reduction, pursuant to Article 12 (2) of Regulation No 1408/71, of the miner's pension determined on the basis of German law alone. The order for reference was registered at the Court on 19 October 1982.

According to the Commission, Article 57 The Commission states that if the Court of Regulation No 1408/71 merely lays decides to adopt the view advocated by it down a method of financing, which Questions 2 and 3 of the Landessozial­ should not be confused with questions gericht will lose their purpose. relating to the acquisition or retention of rights to social security benefits. The Commission proposes that the Court should reply to the first question as The Commission points out that in the follows: judgment of 21 October 1975 in Case 24/75 (Petroni v ONPTS [1975] ECR "The first sentence of Article 12 (2) of 1149) the Court held that the reduction Regulation No 1408/71 must be inter­ of a benefit provided under the preted as ruling out the reduction or legislation of one Member State alone suspension of a benefit acquired solely when the benefit to be taken into under the legislation of one Member account had been determined on the State even if the benefits which were basis of Article 45 of Regulation No acquired under the legislation of another 1408/71 was contrary to Article 51 of Member State were determined pursuant the Treaty. to Article 57 of Regulation No 1408/71 and the competent institution of the first Member State contributes towards the Referring to the judgment given by the financing of those benefits as provided Court on 2 July 1981 in Joined Cases for in Article 57 (3) ( c )" 116, 117, 119, 120 and 121/80 (Giorgio Celestre and Others [1981] ECR 1737), the Commission considers that the situation in this case would be totally different if the rule in question against III — Oral procedure the overlapping of benefits were an "external" rule requiring social security benefits received in other Member States At the hearing on 2 June 1983 oral to be taken into consideration. argument was presented on behalf of the Commission of the European Com­ munities by Manfred Beschel, acting as As regards the "unjustified advantages" Agent. referred to by the Landessozialgericht, which Mr Jerzak is said to enjoy in comparison with national workers who, The Advocate General delivered his being in receipt of the same benefits opinion at the hearing on 30 June 1983.

s Since 1973 the Bundesknappschaft has provided Mr Jerzak with a miner's disability pension awarded on the basis of the provisions of German law alone as the amount resulting from the application of Article 46 (2) of Regu­ lation No 1408/71 is less advantageous for him.

a Taking into account the fact that the Belgian pension for occupational disease had been increased on account of Mr Jerzak's increased degree of invalidity, the Bundesknappschaft decided pursuant to Article 75 of the Keichsknappschaftsgesetz to suspend payment of a proportion of the invalidity pension provided under the German miners' scheme and to require repayment of the sums unduly paid.

JUDGMENT OF 15. 9. 1983 — CASE 279/82

7 Mr Jerzak appealed against that decision to the Sozialgericht [Social Court] Aachen and then to the Landessozialgericht für das Land Nordrhein- Westfalen which has asked the Court to rule upon the following preliminary questions :

"1 (a) Are a Member State's legal provisions governing the overlapping of one social security benefit with another (Paragraph 75 of the Reichsknappschaftsgesetz) applicable (the first sentence of Article 12 (2) of Regulation (EEC) No 1408/71) even where: (i) the benefit to be reduced has been determined under national legislation alone (Article 46 (1) of the regulation); and

(ii) a proportion of the benefit to be taken into account (Article 57 (3) (c) of the regulation) is borne by an insurance institution in the State under whose legislation the. benefit to be. reduced is provided?

make the reduction, awarded under the legislation of another Member State, is borne by the competent institutions of the two Member States concerned in accordance with the procedure laid down by Article 57 (3) of the same regulation.

9 The first point to recall is that Article 12 (2) of Regulation No 1408/71 provides that the provisions of the legislation of a Member State for the reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits may be invoked "even though the right to such benefits was acquired under the legislation of another Member State".

io Construed in the light of Articles 48 to 51 of the Treaty, which constitute the basis, the framework and the bounds of the social security regulations, Article 12 (2) of Regulation No 1408/71 forms the counterpart of the advantages which Community law affords workers in enabling them to require the social security legislation of more than one Member State to be applied simultaneously. Its purpose is to prevent them from deriving . advantages from that possibility, which in national law are considered excessive.

n However, although the Court has consistently held that limitations may be imposed on migrant workers to balance the social security advantages which they derive from the Community regulations and which they could not obtain without them, the aim of Articles 48 to 51 of the Treaty would not be attained if the social security advantages which a worker may derive from the legislation of a single Member State were to be withdrawn or reduced as a result of the application of those regulations.

,6 In view of the foregoing considerations the answer to the first question submitted by the Landessozialgericht für das Land Nordrhein-Westfalen must be that the first sentence of Article 12 (2) of Regulation No 1408/71 must be construed as excluding the reduction or suspension of a benelit acquired solely under the legislation of one Member State even if the benefits to be taken into account in effecting the reduction being acquired under the legislation of another Member State were awarded in application of Article 57 of Regulation No 1408/71 and if the competent institution of the lirst Member State contributes to the cost of those benefits upon the terms set out in Article 57 (3) (c).

,7 In view of the answer just given to the first question there is no need to rule upon the other questions raised by the Landessozialgericht fur das Land Nordrhein-Westfalen.

JERZAK v BUNDESKNAPPSCHAFT

Costs

18 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

J. Biancarelli U. Everling Legal Secretary President of the Third Chamber