C-21/87

By a Convention concluded between the Federal Republic of Germany and the The answer to the question has been seen to People's Republic of Poland on Pension and depend on the interrelation between Accident Insurance ('the 1975 Convention'), German domestic and Community law. it was provided by Article 4 (2), inter alia,

OPINION OF SIR GORDON SLYNN — CASE 21/87

The Council Regulation No 1408/71 (Official amount of benefit due from the first- Journal 1971, English Special Edition, p. mentioned Member State is then established 416), the most recent consolidated text of in the ratio which the length of the periods which is to be found in Annex 1 to Council completed under the legislation of that Regulation No 2001/83 (Official Journal Member State bears to the total length of 1983, L 230, p. 6) applies to employed the periods completed. The higher of the persons who are or who have been subject two amounts — the actual amount due and to the legislation of one or more Member the calculation resulting from the States of the Community. By Article 1 (j) application of the formula ('the theoretical '"legislation" means in respect of each amount') — is then taken into Member State statutes, regulations and consideration. other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security'

Article 45 (1) obliges the authority calculating the pension entitlement, in cases in which the When first calculating the pension entit right to benefit is conditional upon the lement, the BfA, after correcting an initial completion of periods of insurance, to take error, added the periods of compulsory into account to the extent necessary periods insurance in the Netherlands to the months of insurance completed under the legislation when contributions were paid in Germany.

On that basis, it concluded that Mr account the interrupting periods) on Borowitz had attained a semi-complete equitable grounds,· but was informed that compulsory contributions record, and his pension would only be increased if, in proceeded to take into account, in arriving the future, the new method of calculation at the total pension entitlement, the 'inter generated a higher pension entitlement. rupting periods' during which Mr Borowitz was engaged in secondary and higher studies, it being apparently immaterial, under German law, that these studies took place in Poland rather than in Germany. Mr Borowitz challenged this approach in an action before the Sozialgericht Reutlingen. He claimed that a single integrated calcu lation based on the periods of contribution

The BfA Regulation No 1408/71. At first it appealed to the Landessozialgericht, which continued to take into account the inter upheld the lower court by a judgment of 18 rupting periods; later, however, by a reas December 1984. The BfA appealed on a sessment notice of 4 July 1978, it stated that point of law to the Bundessozialgericht, it had done so in error. It then carried out which stayed proceedings on 25 November two separate pension calculations. One 1986 and referred the following question to calculation took into account the Polish and the Court: German contributions, but not contributions paid in the Netherlands; the other took into account the German and Netherlands contributions, but not the Polish contri

Mr Borowitz continued to be the Federal Republic of Germany has paid the earlier, higher amount (that is, the concluded a convention on the reciprocal amount that was produced by taking into assimilation of insurance periods?'

In the written pleadings the Commission account for the purposes of calculating a took the position that a convention such as pension entitlement under German domestic that made between the Federal Republic of law. Germany and Poland which was applied in the Federal Republic of Germany constituted legislation within the meaning of Article 1 (j) of the Regulation so that the Polish periods had to be regarded as German periods for the purpose of Chapter 3 of the Regulation. The United Kingdom contended that such a convention was not Although Regulation No 1408/71 regulates legislation for such purpose and that no pension calculations in respect of periods Member State could impose obligations on spent subject to the social security legis­ other Member States in respect of social lation of more than one Member State, it security matters by making a bilateral does not take away rights otherwise due convention with another State. At the under domestic law. Under German hearing, however, the Commission and the domestic law Mr Borowitz was entitled to United Kingdom really adopted a similar have the Polish periods taken into account approach which would give an affirmative for the purpose of calculating his pension. answer to the actual question The fact that under Regulation No 1408/71 posed — which it must be recalled is he is also entitled to have the Netherlands whether the Regulation 'permits' the periods taken into account does not take German authorities to have regard both to away his rights under domestic law. If periods of compulsory insurance under the Regulation No 1408/71 were to be read as legislation of other Member States and to preventing the Polish periods from being periods of compulsory insurance under the taken into account it would in my view legislation of Poland by reason of the conflict with the general principle stated in Convention on the reciprocal assimilation of Article 51 of the EEC Treaty under which, insurance periods. inter alia, it was made (namely to adopt such measures as are necessary to provide freedom of movement for workers), since if a national of one Member State knew that if he moved from that Member State to work The Commission has argued that the whole in another Member State he would lose the question turns simply on the particular benefit of contribution periods spent in a provision of German law relating to inter­ third State, which were recognized in the rupting periods. It is suggested that this first-mentioned Member State, he would be provision is peculiar to German law. I do deterred from moving. not accept that the question is so limited. It seems to me that it has a much wider ambit.

of t e The definition in Article 1 (j) h Regu­ lation is clearly wide since it includes not only statutes, regulations and other was provisions but 'all other implementing Although the breadth of Article 1 (j) measures present or future' relating to the emphasized in Bozzone and reiterated in branches of social security covered by Case 300/84 (Van Roosmalen v Bestuur van Article 4 (1) and (2). That is capable of de Bedrijfsvereniging voor de Gezondheid including provisions and measures in some Geestelijke en Maatschappelijke Belangen Member States giving effect to a bilateral [1986] ECR 3097), judgment of 23 October convention with a third State. On the other 1986, the latter case seems to me to be hand, getting away from the literal wording concerned with a person who as a it does not seem to me that this Article was Community national had a connection with intended to cover, and it should not be read the social security system of his Member as covering, periods spent in a third State State before going to work abroad. The which are merely recognized as equivalent Court's judgment in paragraphs 30 and 31 to periods covered by contributions in the accepts that a national rule extending social Member State for the purposes of calcu­ security provisions to persons who either lating a pension under domestic law. Even if partially or exclusively work outside the such periods in a third State are taken into Community can be considered 'legislation' account for the purposes of the domestic in the sense of Article 2 of Regulation calculation they cannot affect the obli­ No 1408/71. I do not, however, read that gations of other Member States on an judgment as requiring periods spent in a apportionment following the aggregation of third State before the individual became a relevant periods. Such a result seems to me Community national and subject to the to be consistent with the Court's decisions legislation of a Member State in social in Case 16/72 (Allgemeine Ortskrankenkasse security matters (although recognized under Hamburg v Landesversicherungsanstalt domestic law as being assimilated as a result Schleswig-Holstein [1972] ECR 1141) and of a bilateral convention) to be taken into paragraphs 8 and 9 of Case 75/76 (Kaucie v account for the purposes of aggregation and Institut national d'assurances maladie-inva- apportionment under Regulation No lidité [1977] ECR 495). 1408/71.