C-20/85

Mr President, came to the Federal Republic of Germany, Members of the Court, he pursued the same activity from May 1976 to June 1980, although not continuously. He thus completed in that country a period 1. Proceedings are currently pending of compulsory insurance of 48 months. between Mario Roviello and the Landesver­ sicherungsanstalt Schwaben (Regional Insurance Office, Swabia), Augsburg, in which the former is seeking to obtain an occupational invalidity pension. The parties In 1980, since he considered that he was are in dispute as to : (a) the relevance for the suffering from an illness which entitled him purpose of determining entitlement to such to an occupational invalidity pension, Mr a pension of the occupation pursued by the Roviello applied for such a pension to the plaintiff in a Member State other than the competent Italian and German institutions. Federal Republic of Germany; (b) the Both of those applications were refused. In aggregation of periods of insurance particular, the Regional Insurance Office completed by the plaintiff in another for Swabia gave as the ground for its refusal Member State with those completed by him the fact that the plaintiff was still able to do in Germany. a full day's work of any kind, as long as the work was not heavy. Mr Roviello responded to that decision, dated 16 October 1981, by The Bundessozialgericht (Federal Social bringing an action before the Sozialgericht Court), before which the dispute was (Social Court) Stuttgart and subsequently brought, has asked the Court of Justice to appealed to the Landessozialgericht (Higher interpret Point 15 of Section C (Germany) Social Court) Baden-Württemberg. In a of Annex VI to Regulation No 1408/71 of decision of 22 August 1983, the latter court the Council on the application of social also dismissed his action. It pointed out that security schemes to migrant workers and the plaintiff had no formal qualification as a their families (Official Journal, English tiler and had not pursued that occupation Special Edition 1971 (II), p. 416), as continuously. He was therefore to be amended by Council Regulation No regarded as a semi-skilled worker and, as 2000/83 of 2 June 1983 (Official Journal such, was not entitled to be assigned to a L 230, p. 1). specific activity.

context that a tiler is a skilled worker and 15 that entitlement to a pension which complained that the judgment did not has not yet been established must be specify the jobs to which he could have been restricted to the period prior to the assigned. Consequently, he sought: (a) the date on which the regulation entered annulment of the judgments at first and into force (1 July 1982)?' second instance, (b) the annulment of the decision of 16 October 1981, and (c) an order directing the Landesversicherungs­ anstalt Schwaben to pay him a severance grant for the period from 1 December 1980 to 11 January 1982 and the pension in 3. In order to place the facts which I have question from 17 February 1982. summarized in their proper context, it is necessary to consider the national rules applying at the time of the events and the Community rules referred to in the three By an order of 28 November 1984, the questions. Fourth Senate of the Bundessozialgericht stayed the proceedings and referred the following questions to this Court for a preliminary ruling under Article 177 of the EEC Treaty: The basis of the national rules is the Reichs­ versicherungsordnung (German Insurance Code) of 1911, which is the German legis­ '(1) For the purpose of determining entit­ lation on social security. Paragraph 1246 of lement to an occupational invalidity that measure provides that an occupational pension, is Point 15 of Section C in invalidity pension is due to an insured Annex VI of Regulation No 1408/71, person: (a) in respect of whose occupation as amended by Regulation No or activity prior to the materialization of the 2000/83, to be interpreted as meaning contingency compulsory insurance contri­ that account must be taken of the occu­ butions had been paid for at least 36 months pation hitherto pursued by an insured out of the preceding 60; (b) who had person only where the periods of completed a 'waiting period' of at least 60 insurance necessary for the acquisition months of insurance (subparagraph 1). An of entitlement to that pension were insured person is regarded as an 'occupa­ completed solely in activities which are tional invalid' if, as a result of illness, subject to compulsory insurance under infirmity or loss of physical or mental German legislation? capacity, his ability to earn is reduced to less than half of what would be appropriate for a worker in good physical and mental health and having similar training and equi­ (2) If the first question is answered in the valent knowledge and abilities (sub­ affirmative, is Point 15 also applicable paragraph 2, first sentence). Capacity to to contingencies which materialized earn is assessed in the light of all the occu­ before Regulation No 2000/83 entered pations which correspond to the capacity into force (1 July 1982)? and aptitudes of the insured person and which he could be asked to engage in, having regard to the length and level of his training, to the occupation hitherto pursued (3) If the second question is answered in and to the requirements of that occupation the negative, does it follow from Point (subparagraph 2, second sentence).

It should also be pointed out that the cation but having pursued his occupation German courts have developed a system of for many years may be assimilated to classification of invalids with a view to workers who have completed the required assigning them to other activities. That period of training, and (b) whether the system is composed of four categories based pursuit of an occupation in another Member on various criteria, among which is to be State has any effect on the conditions to found principally the amount of the salary: which the German rules make the right to a the top category comprises foremen and/or pension subject. The first problem is highly skilled workers ('Vorarbeiter mit extraneous to the subject on which the Leistungsfunktion bzw. besonders hoch Court has been asked to rule. I will go into qualifizierter Arbeiter'), skilled workers the second in detail after examining the ('Facharbeiter'), semi-skilled workers relevant Community rules. ('angelernter Arbeiter'), and unskilled workers ('ungelernter Arbeiter') (Entschei- dungen des Bundessozialgerichts BSGE 41 , 4. As the Court will be aware, Article 89 of pp. 129 et seq.; 43, pp. 243 et seq.; 45, pp. Regulation No 1408/71 provides that 276 et seq.; and 49, pp. 54 et seq.). 'special procedures for implementing the legislations of certain Member States are set On the basis of that classification, the out in Annex VI'. Article 1 of Regulation competent institution may refuse to grant No 2000/83 added a Point 15 to Section C, the pension only if: (a) the insured person Federal Republic of Germany, of that may be assigned to an occupation included Annex. It reads as follows: among the activities characteristic of the category immediately below that to which 'Where under German legislation account the occupation hitherto pursued by him must be taken of the occupation hitherto belongs; (b) the salary for that occupation is pursued by the person concerned for the at least equal to half that paid to those purpose of determining his entitlement to a pursuing the insured person's former occu pension in respect of occupational inva pation. An assessment of the activity

That involved taking account not only of the last That is the complex framework of legal rules and decisions in the light of which the 1 — Translator's note: the German version of Point 15 says, Bundessozialgericht must decide (a) whether more precisely, ' . . . that right shall be determined by taking account only of activities which are subject to compulsory a worker not holding the required qualifi insurance under German legislation'.

The German Government drew the Community's attention to the problem in a note of 18 November 1980. However, the Commission does not appear to have For its part, in reply to a question put by the regarded it as very serious. In the proposal Court, the Commission correctly described which it submitted to the Council on 21 the procedure leading to the adoption of the December 1982 and which is the source of contested provision but also maintained that Regulation No 2000/83 is to be found an it was lawful. Citing the judgment of 15 addition to Section C, Germany, designated July 1970 in Case 41/69 ACF Chemiefarma Point 14 (which is among other things prac­ v Commission [1970] ECR 661, paragraphs tically identical to the provision under the 68 and 69 of the decision, it observes that: same number in the final text) but no Point '(a) When the Council has consulted the 15 (Official Journal C 27, 2.2.1983, p. 3). Assembly on a proposal for a regulation and Both the Economic and Social Committee, has subsequently modified the text thereof, by way of an Opinion prepared at its 205th a new consultation is not necessary if the Plenary Session held in Brussels on 23 and amendment does not substantially change 24 January 1983 (Official Journal C 90, p. the proposal as a whole; (b) Point 15 29), and the European Parliament at the contains a provision which, being designed sitting on 11 March 1983 (Official Journal to resolve certain problems which arose out C 96, p. 89) adopted decisions on the of the application of German legislation, is document thus drafted, that is to say, merely technical and, as such, not likely to without the provision which is of interest bring about the abovementioned substantial here. alteration'.

Court to decide whether the measure to be Article 46 (3) of Regulation No 1408/71 interpreted is valid. However, such an and Decision No 91 of the Administrative objection would not be well founded if it is Commission on Social Security for Migrant true, as I have just pointed out, that in this Workers. However, the Court first case it is primarily the Bundessozialgericht considered the validity of those provisions which raised the problem, and thereby put it and, as the Court will be aware, declared before the Court. In such a situation, it them incompatible with Article 51 of the would seem to me that the principle laid Treaty. In regard more generally to the down by the Court in its judgment of 1 raising by the Court of its own motion of December 1965 in Case 16/65 (Firma C. defects not raised by the national court (that Schwarze v Einfuhr- und Vorratsstelle für case was concerned with a breach of Getreide und Futtermittel [1965] ECR 877) essential procedural requirements), it is also is the relevant one. useful to bear in mind the judgment of 18 February 1964 in Joined Cases 73 and 74/63 NV Internationale Krediet- en Handelsvereniging Rotterdam and Others v That decision states that: 'the conclusion to Netherlands Minister for Agriculture and be drawn from the … questions .

However, it is clear it would be inappropriate to the special field that the Council may always amend the of judicial cooperation under Article 177 proposal provided that it acts unanimously which requires the national court and the (Article 149, first paragraph) and, I would Court of Justice . . . to make direct and add, provided that the modification or complementary contributions to the working addition does not distort the Commission's out of a decision' (p. 886). proposal and thereby encroach upon the power of initiative which the Treaty reserves to the latter. According to the better view among legal writers, that power is not A later and particularly incisive application diminished if the amendment remains within of the same principle was made by the the scope of the subject to which the Court in its judgment of 3 February 1977 in proposal refers (see, for further comment, Case 62/76 (Strehi v Nationaal Dewost, 'Commentaire à l'article 149' in Le Pensioenfonds voor Mijnwerkers [1977] ECR droit de la Communauté économique euro-

ROVIELLO v LANDESVERSICHERUNGSANSTALT SCHWABEN

7. Consideration of the second aspect raises and Article 24 because it gave the more complex questions. As the Court will Commission powers which had not been be aware, consultation of the European mentioned in that proposal. The Court Parliament is a very important requirement. rejected those two complaints, observing in It is, as was stated in the famous Isoglucose regard to the first that 'considered as a whole case, 'an essential factor in the institutional [,] the substance of the draft regulation on balance intended by the Treaty' because it which the Parliament was consulted has not 'allows the Parliament to play an active part been altered' (paragraph 178) and, in regard in the legislative process of the Community' to the second, that 'in Article 20 of and thus, 'although limited, it the . . . draft in the version approved by the reflects . . . the fundamental democratic Parliament. . . there is a provision substan- principle that the people should take part in tially identical to Article 24 of Regulation the exercise of power through the inter No 17' (paragraph 69). mediary of a representative assembly'.

ECR 297). In those cases also the applicants (judgments of 29 October 1980 in Case claimed that Council Regulation No 138/79 Roquette frères v Council [1980] 3085/78 was too different from the ECR 3333, paragraph 33, and Case 139/79 proposal on which the Assembly had Maizena v Council [1980] ECR 3393, expressed its opinion to be considered valid, paragraph 34). whereas the Commission defended the validity of the regulation by arguing that with regard to measures adopted unan imously, the question whether or not it is necessary to consult the Parliament again is However, the proposal on which the 'pointless'. Impliedly rejecting the Parliament expressed its opinion may be defendant's argument, the Court compared amended, as occurred in this case, and the closely the initial proposal of the Court has never ruled in general and Commission, the Parliament's opinion and abstract terms on the need to submit such the definitive text adopted by the Council.

OPINION OF MR MANCINI — CASE 20/85

In the view conditions: (a) it leaves unaltered the of the institution, Point 15 contains a essential aspects of the broadest provision provision of a merely technical nature on which it has an effect (Chemiefarma, which, as is stated in Article 89 of Regu cited above, paragraph 69); (b) it is of a lation No 1408/71, takes account of certain merely technical nature, that is to say, it particular features of the German legal involves changes of method and not of situation. substance (Buyl, paragraph 23 and Chemiefarma, paragraph 178, cited above); and (c) it corresponds to the wishes of the Parliament (Buyl, ibidem).

found. However, the fundamental point is lation No 1408/71 a single point, No 14. that the contested provision does not lay That provision was advantageous to migrant down a merely 'technical rule' and the workers because it required the German Commission itself accepts that: in its obser authorities to calculate the net earnings to vations, it claimed that far from merely clar be taken into account for the determination ifying a legal situation likely to produce of the benefit to be paid to insured persons anomalies or undesired effects, that not residing in Germany as though they did provision lays down 'new rules', that is to reside there. On the other hand, the Court say, it modifies the system in force up to

that time — according to which the occu­ lement to a pension . . . only by the activities pation hitherto pursued was determined by taken into account under the German social taking account of activities pursued in other security scheme', excludes from Member States — by laying down a formula consideration 'activities subject to which requires that account should be taken compulsory insurance in other Member only of activities pursued in Germany States' and does not permit aggregation of (p. 20). insurance periods 'at any rate if entitlement is based on the occupation hitherto pursued' (order for reference, p. 5). That approach, which is based on national law alone, is If those statements are justified, it seems to supported by a particularity of the German me evident that the failure to consult the system: the idea that, in the context of a Parliament a second time constitutes a relationship based essentially on an breach of essential procedural requirements exchange of advantages, the pension must and renders Point 15 invalid. correspond to a sufficiently long period of skilled or semi-skilled work requiring payment of compulsory insurance contri­ butions. 9. The conclusion thus arrived at makes it unnecessary to consider the compatibility of the provision in question with the relevant provisions of the Treaty. However, I do not intend to shirk that task both because the parties to the main proceedings, as well as The Landesversicherungsanstalt Schwaben the Commission, concentrated their efforts and the Commission favour the second on that problem and because it is a good interpretation. They maintain that Point 15 rule that the Advocate General should must be interpreted as meaning that the express an opinion on all aspects of the case expression 'insurable activities under assigned to him. German legislation' does not refer to the waiting period but merely serves to identify the occupation hitherto pursued by the insured person. Support for that proposition Let me therefore begin by ascertaining the is to be found in the reasons for which it exact scope of the provision. The order for was adopted. It was introduced to reference puts forward two possible inter­ circumvent the case-law of the Bundes­ pretations: (a) the provision affects the sozialgericht which by requiring social conditions governing entitlement to a security institutions to take account of the pension under Paragraph 1246 of the migrant worker's activities before his arrival Reichsversicherungsordnung and excludes in Germany made it necessary for them to ' insured persons who have not completed the undertake difficult research into the equiv­ 60-month waiting period in Germany; (b) alence of those activities to activities the provision affects only the identification pursued in Germany, thus delaying payment of the category to which the insured person of pensions. is to be assigned, providing for that purpose that account should be taken solely of acti­ vities pursued by him in Germany.

is supported by the letter and the purpose of Thus the judgment of 29 November 1978 the contested provision. The wording of the (cited above) stated that in order to acquire provision is sufficiently explicit. As the a right to a miner's pension (governed by Court will recall, Paragraph 1246 of the Paragraph 45 of the Reichsknappschafts Reichsversicherungsordnung provides that gesetz in terms identical to those of in order to be entitled to a pension, the Paragraph 1246) the waiting period was to worker must fulfil two conditions: the be calculated by taking into account the activity hitherto pursued by him must have insurance periods completed by the migrant been subject to compulsory insurance for at worker before his arrival in Germany.

The reasons on which Point 15 is based, to be found in the fourth recital of the preamble to Regulation No 2000/83, may be cited as 10. Can a rule which produces that effect pointing in the same direction: 'provision be in conformity with the Treaty? I note should . . . be made that for entitlement (in that Regulation No 1408/71 is based on the German version the term employed is Articles 7 and 51. As the Court will be "Anspruchsvoraussetzungen", that is to say aware, the former prohibits discrimination "conditions for entitlement", and in the on grounds of nationality and the second French version it is "ouverture à un droit") provides that 'the Council shall .

ROVIELLO v LANDESVERSICHERUNGSANSTALT SCHWABEN

In the light of those principles, Point 15 is implausible) 'minimalist' interpretation of it manifestly incompatible with the Treaty. As put forward by the Commission and the I have said, it does not permit the aggre­ Swabian insurance institution. gation which the Council is required to ensure for workers coming from other Member States and for that very reason Let us imagine that by requiring account to treats them in a discriminatory manner. be taken only of activities insured under That can be shown by a fairly simple German legislation, the Council was in fact example. A migrant worker who has not contemplating the determination of the completed in Germany the period of 60 occupation pursued by the insured person months required by Paragraph 1246 of the up to the time at which the contingency Reichsversicherungsordnung cannot rely on materialized. The migrant worker would insurance periods completed before he came still be placed at a disadvantage even though to the Federal Republic even if, as in Mr in this situation it would be because of the Roviello's case, they amount to a total of 15 impossibility of relying on the highest quali­ years. On the other hand, a German worker fication he had acquired before coming to obtains a pension even if he has worked for Germany. That effect, excluded in Mr only 60 months. Roviello's case but entirely possible, is surely contrary to the principle prohibiting 11. However, that is not all. Point 15 would discrimination against a worker 'by reason be contrary to Article 51 of the Treaty even of the exercise of his right to freedom of if the Court accepted the (somewhat movement' (see D'Amico, supra).