C-58/87
ECLI:EU:C:1988:234
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REBMANN v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 5 May 1988 *
Mr President, of work (1974-80) completed in Germany. Members of the Court, However, the institution did not take into account, in calculating the amount of that pension, the period during which he was unemployed. In fact, under Paragraph 36 (1), points 3 and 3 (a) of the Angestell tenversicherungsgesetz (AVG), periods of 1. By an order of 21 January 1987, the unemployment may be taken into account Bundessozialgericht asks the Court whether, for pension purposes only if they interrupt a for the purpose of calculating the pension of working activity which was subject to a frontier worker, the periods during which insurance under German legislation. They he has been in receipt of full unemployment may, it is true, be made good by German benefit must be taken into account by the contribution periods if agreements of inter competent institution of the State of national treaties to which the Federal residence or by the corresponding body of Republic of Germany is a party include the country in which the pensioner carried provisions to this effect. But in this case that on his working activity. possibility is provided for neither by the Franco-German treaty in existence nor by provisions of Community law.
Mr Josef Rebmann, a German citizen, has always resided in Germany. During the periods from 1 August 1959 to 30 June 1972 The complaint, action and appeal which Mr he worked in France as a frontier worker Rebmann brought against this decision were paying the appropriate contributions to the unsuccessful. In his appeal on a point of social security scheme of that State. In June law, Mr Rebmann maintained that the 1972 Mr Rebmann became unemployed. He aforementioned provision of the AVG is therefore registered himself at the contrary to Article 71 (1) (a) (ii) of Regu Saarbrücken employment office and from lation No 1408/71 of 14 June 1971 on the 13 July 1972 to 31 July 1974 he was in application of social security schemes to receipt of unemployment benefit as provided employed and self-employed persons and for by the provisions of German law. their families moving within the Community (in the version published in the Official Journal L 230, 22 August 1983, p. 8).
In 1980 Mr Rebmann retired and received a pension paid by the French social security institution In addition, by a decision of 10 In fact, under that provision the unem December 1980, the Bundesversicherung für ployed frontier worker must apply for Angestellte in Berlin (BfA) granted him an appropriate benefit solely to the competent invalidity pension on the basis of the years institution of the State of residence.
* Translated from the Italian.
OPINION OF MR MANCINI — CASE 58/87
It is beyond dispute, the plaintiff conceded, (c) it is for the worker concerned to choose that the provision does not directly relate to the institution to be asked to take into this case. But it is also certain, he added, account periods of unemployment. that only the application of the lex domicilii prevents a frontier worker from being discriminated against in relation to other migrant workers in so far as he may not be In the proceedings before the Court, written able to satisfy, either in the State of observations were submitted by the BfA, the residence or in the State in which he was Italian and Netherlands Governments and employed, the conditions to which national the Commission of the European legislation subjects the recognition of Communities. With the exception of the periods of unemployment. In fact, as Netherlands, those parties took part in the regards French law, Mr Rebmann could not hearing. prove that he had received no unem ployment benefit whereas under German legislation his working activity subject to insurance would not appear to have been interrupted. 2. The BfA and the Italian Government point out first that the absence of a specific Community provision does not permit the interests of frontier workers to be ignored and the solution of the problem must be In those circumstances the Bundessozial sought in the principles laid down in Regu gericht considered it appropriate to ask the lation No 1408/71. In this respect they Court to determine which is the competent maintain that, by making the State of institution under Community law for taking residence liable to pay unemployment into account, in calculating a pension, benefit, Article 71 introduced an exception periods of unemployment during which a to the general rule according to which it is frontier worker has been in receipt of for the country in which the migrant worker relevant benefits, within the meaning of carries on his working activities to take all Article 71 (1) (a) (ii) of Regulation No social and social security measures. 1408/71. The court making the reference would like to know whether:
Since it is in the nature of a derogation, the (a) in the light of the aforementioned provision is not applicable by analogy or Community provisions, periods of extension, according to the Netherlands unemployment must be taken into Government, to other social benefits. This is account by the State of residence, as if so even for the purpose, albeit limited, of the worker had been subject during his calculating the years in which the person last employment to the legislation of entitled to the benefit was unemployed. that State; Otherwise, as the BfA points out, one would arrive at a paradoxical result. Merely by virtue of having paid unemployent benefit, the State of residence would have to (b) on the other hand, those same periods confer a right to an independent pension on are to be taken into consideration under a frontier worker who has never worked in the legislation relating to pension rights its territory. The problem raised by the of the State of employment, as if he had national court should be resolved by been subject during the period of unem recourse to the general criterion of the State ployment to the legislation of that State; of employment.
REBMANN v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
The Commission takes the opposite view. who is wholly unemployed shall receive The abovementioned criterion, it rec benefits in accordance with the provisions of ognizes, is certainly more in conformity the legislation of the Member State in with the system of the regulation. It does, whose territory he resides as though he had however, pose serious problems of coordi been subject to that legislation whilst last nation as between the insurance systems of employed'. the Member States and in particular as regards those which, like the French system, preclude the possibility of taking into account, for pension purposes, periods of The reason for that provision is plain. Being unemployment in respect of which benefit unemployed, so the Community legislature has not been paid. Where a frontier worker considered, the frontier worker may be has never worked in the State of residence better and more easily assisted by the auth but has spent periods of unemployment orities of the country of residence where he there whilst receiving unemployment has obviously maintained more stable family benefit, the principle of the aggregation of and social connections. That aspect is very relevant periods should be applied. By well illuminated by the case-law of the analogy with the provision of Article 48 the Court. As it held in its judgment of 12 June institutions of the State of unemployment 1986 in Case 1/85 Miethe [1986] ECR would then be required to take into account 1837, 'Article 71 ... is intended to ensure the aforesaid periods. that migrant workers receive unempoyment benefit in the conditions most favourable to the search for new employment. That benefit is not merely pecuniary but includes the assistance in finding new employment 3. The question referred to the Court by which the employment services provide for the Bundessozialgericht highlights the workers who have made themselves existence of a serious lacuna in Regulation available to them' (see paragraph 16 of the No 1408/71 and it is evident that the judgment and the decisions mentioned interests of an important category of therein). Community workers, namely frontier workers, require that it be filled.
Having said that, let me examine which of the solutions proposed by the national court First of all a general remark. In the accords most closely with the spirit which 'determination of the legislation applicable', informed the Council when it enacted the the Council provided that employed persons provisions relating to the status of the not residing in the State of employment frontier worker. (which naturally includes frontier workers) shall be subject to the legislation of that State (Article 13 (2) (a)). Moreover, the principle thus laid down is not without The last hypothesis put forward by the exceptions. In particular, the criterion of the Bundessozialgericht may be rejected straight lex domicilii is the determining factor in the away. Allowing frontier workers the option case of (a) Article 25 (2) and (3) as regards of choosing would run counter to the letter sickness and maternity benefits to which an of Article 71 , which, as we have seen, unemployed frontier worker is entitled; enables workers to apply solely to the auth (b) Article 39 (5) as regards invalidity and orities of the State of residence, and 'would (c) Article 71 (1) (a) (ii) aforesaid. The disregard the scope of Regulation No latter provision states that 'a frontier worker 1408/71 which ... is intended to coordinate
OPINION OF MR MANCINI— CASE 58/87
national systems of social security legislation seems no more favourable to the interests of within the framework of freedom of the frontier worker than that which was movement for workers who are nationals of advanced by the Netherlands. Certainly, like Member States' (see the Miethe judgment any provision of an exceptional nature, mentioned above, at pargraph 11). Article 71 must be viewed solely in the context of the situation for which it was On the other hand, the second solution enacted. I am however convinced that this proposed has at least two advantages; it is in provision is not confined to introducing a conformity with the rule laid down in derogation from the general criterion of the Article 13 of the regulation and the lex loci laboris but constitutes, together with objectives pursued by Article 51 of the Article 25 (2), a set of rules intended speci Treaty, and it ensures that periods of unem fically to apply to frontier workers and ployment supplement, without any break in distinct from those which apply to other continuity, contribution periods completed workers. We have seen in fact that the by the frontier workers under the pension criterion of the lex domicilii corresponds in scheme of the State of employment. Thus this particular case to an essential objective, when the worker finds fresh employment in namely that of enabling a person who daily that State, the latter's authorities, which are crosses a border in order to work 'on the competent to pay his pension, would also other side' to find, after unemployment, take account of the years during which he fresh employment in the country in which was unable to work. he lives.
But, as the Commission has shown, that solution gives rise to serious coordination problems as between the provisions of the Thus, under Regulation No 1408/71 the State of employment as regards the calcu unemployment of a frontier worker, as a lation of pension and the provisions of the situation amenable to legal protection, is State of residence which is responsible for subject to a special regime, connected to the prescribing the rules as regards the payment criterion of the lex domicilii and parallel to of unemployment benefit. And that is not that of the lex loci laboris, governing all (but all. The solution loses all practical utility also solely) the rights and duties of the where the frontier worker finds employment frontier worker from the day he becomes in his State of origin thanks to the efforts of unemployed until the moment when he the employment services to which he finds fresh employment. On the other hand, reported pursuant to Article 71. In such a the periods preceding and following that case, for the reasons which I explained interval are clearly covered by the general when examining the contrary hypothesis, it regime, that is to say the system under seems more logical to confer on the auth which it is solely for the State of orities of the State of residence the responsi employment to assume liability for social bility for taking unemployment periods into security benefits in favour of a non-resident account when they pay the pension. Allow worker. On the other hand, this interpre me to add that the paradox alluded to by tative criterion has specifically led the Court the BfA is scarcely plausible. A frontier to affirm that, in accordance with Article worker who has never worked in his State 13 (2) (a) aforesaid, 'a worker who ceases of residence cannot, by virtue of that fact to carry on an activity in the territory of a alone, acquire there any right to a pension Member State and who has not gone to on termination of his employment. work in the territory of another Member State continues to be subject to the legis In the result, the point of view put forward lation of the Member State in which he was by the BfA and the Italian Government last employed regardless of the length of
REBMANN v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
time which has elapsed since the termination worker from the application of the lex loci of the activities in question and the end of laboris would impede the uninterrupted the employment relationship.' Thus 'only aggregation of his pension rights and would the legislation of that Member State' applies be incompatible with the objectives of the to him (judgment of 12 June 1986 in Case Treaty. Allow me to point out in this respect 302/84 Ten Holder [1986] ECR 1827, para that Article 51 seeks 'to secure for migrant graphs 1 and 2 of the operative part). workers and their dependants ... aggre gation, for the purpose of acquiring and The difficulties of coordination alluded to retaining the right to benefit and of calcu- by the Commission must be overcome by lating the amount of benefit, of all periods recourse to the criterion of the place of taken into account under the laws of the employment. In truth, removing the frontier several countries' (emphasis added).
4. In the light of the foregoing considerations, I suggest that the Court reply as follows to the question put by the Bundessozialgericht by order of 21 January 1987 in the proceedings pending before it between Mr Josef Rebmann and the Bundesversicherungsanstalt für Angestellte:
Tor the purposes of Article 13 (2) (a) of Regulation No 1408/71 and in the absence of a specific Community provision, periods of full unemployment completed by a frontier worker in the State of residence must be taken into account, for the purpose of calculating his pension, by the legislation of the State in which he was last employed.'