C-349/87
ECLI:EU:C:1991:239
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PARASCHI
O P I N I O N OF M R A D V O C A T E GENERAL TESAURO delivered on 6 June 1991 *
Mr President, rejected by the competent institution on the Members of the Court, ground that Mrs Paraschi's incapacity for work was not sufficiently reduced for the purposes of the German legislation.
1. In the present case the Sozialgericht Stuttgart seeks a ruling from the Court on the compatibility with Community law of the German legislation on the grant of an occupational invalidity pension or a pension A third application, submitted in 1985, was for incapacity to work and on the validity of also rejected despite the finding that the Council Regulation (EEC) N o 1408/71 of applicant was, at least temporarily, 14 June 1971 on the application of social prevented, for reasons of health, from security schemes to employed persons, self- resuming her employment. On that employed persons and to members of their occasion, the refusal was based on legis- families moving within the Community. ' lation introduced in 1984, applying stricter conditions to the grant of invalidity pensions whereby pensions for reduced working capacity could be granted only (a) where the insured had been engaged in an activity that was subject to compulsory insurance, and (b) had paid at least 36 2. I shall summarize the facts of the case. monthly contributions during the 60-month Mrs Paraschi, a Greek national, exercised period (the reference period) before the an activity from 1965 to 1969 which was invalidity occurred. subject to the social security scheme in Germany and paid a total of 102 monthly pension contributions. In July 1979 she returned to her country of origin where, because of a deterioration in her health, she was unable to resume employment or, because of the short time for which she had paid Greek pension contributions, to receive 3. It is therefore necessary to make it clear, an invalidity pension for the purposes of the present case, that in calculating the reference period, the legis- lation in question provides that no account is to be taken of certain special periods, of which an exhaustive list is given, which are added to and prolong the 60-month period. T w o applications for a German invalidity Such special periods include periods of pension, made in 1978 and 1980, were interruption, particularly through illness or unemployment, which have given rise to the * Original language: Italian. payment of benefits or even, under certain I — Consolidated version: Official Journal 1983 L 230, p. 8. conditions, where they have not done so;
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and periods of incapacity for work, There are two aspects of the German provided that they are not already required provisions which are relevant to the present to be taken into account as periods of inter- case: first, the actual requirement, of a ruption. reference period during which contributions must be paid and, secondly, the possible discriminatory effects of the conditions There is also a transitional system under under which that period may be prolonged. which the conditions for the grant of an invalidity pension in force until 31 December 1983 continue to apply where voluntary contributions were paid in the 7. With respect to the first point, it must be period 1 January to 31 December 1984. observed that the Court has consistently held that Article 51 of the E E C Treaty and Regulation N o 1408/71 provide only for 4. The Sozialgericht Stuttgart, from which the aggregation of insurance periods Mrs Paraschi subsequently sought recog- completed in different Member States and nition of her entitlement to a German inva- do not regulate the conditions under which lidity pension, entertained doubts as to the those insurance periods are constituted, the validity of that system in the light of the conditions governing the right or obligation relevant provisions of Community law and to become a member of a social security decided to seek a ruling from the Court of scheme being a matter to be determined by Justice as to the compatibility of Regulation the legislation of each Member N o 1408/71 and the abovementioned State — provided, of course, that there is provisions amending the Law on social no resultant discrimination between the security insurance with Articles 48(2) and 51 nationals of the host State and those of of the EEC Treaty. other Member States. 2
5. However, having regard in particular to the facts of the case and the arguments set It follows that, in principle, Community out in the order for reference, that question, law does not detract from the right of which was drafted in general terms, should the national legislature to impose be reformulated. stricter conditions concerning the grant of an invalidity pension, provided that the conditions imposed d o not entail any manifest or disguised discrimination It is apparent that the national court between Community citizens. seeks essentially to determine whether Community law, and in particular Articles 48(2) and 51 of the Treaty and Regulation N o 1408/71, preclude the application of legislation such as that which I have just The precondition imposed by the German outlined and whether or not Regulation N o legislature for the grant of a pension for 1408/71 is valid in relation to the incapacity to work, namely that the worker abovementioned principles laid down in the must have been covered by compulsory EEC Treaty. insurance for a reference period before the
2 — Judgments in Case 29/88 Schmitt v Bundesversïcberungs· anstalt für Angestellte [1989] ECR 581; Case 110/79 6. In order to answer the first of those Coonan v Insurance Officer [1980] ECR 1445, paragraph 12; and Case 266/78 Brunoriv Landesversicberungsanstalt questions, further details are called for. Rheinprovim [1979] ECR 2705, paragraph 5.
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invalidity occurred, is in itself an objective 'Where, under the legislation of a Member condition which applies without distinction State, recognition of entitlement to a benefit to national workers and those of other is conditional upon completion of a Member States and it does not therefore minimum period of insurance during a appear open to criticism from the point of specific period preceding the contingency view of Community law. insured against (reference period) and where the abovementioned legislation provides that the periods during which the benefits have been granted under the legis- lation of that Member State or periods 8. As regards the national court's reference devoted to the upbringing of children in the to possible infringements of the right to territory of that Member State shall give rise property and of vested rights as a result of to prolongation of the reference period, the application of that legislation to existing periods during which the invalidity pensions situations and to rights which have already or old-age pensions or sickness benefits, been acquired, it must be emphasized that unemployment benefits or benefits for any resultant harm derives merely from the accidents at work (except for pensions) have application of national legislation and must been awarded under the legislation of therefore be considered solely in relation to another Member State and periods devoted domestic constitutional principles. to the upbringing of children in the territory of another Member State shall likewise give rise to prolongation of the aforesaid reference period.'
9. A more delicate and complex issue, however, is appraisal of the possibility under 10. However, that provision did not resolve German legislation of prolonging the all the problems or remove the possibility of reference period. discrimination stemming from the abovementioned German legislation and practice.
In that connection it must first be pointed In practice certain situations may arise, as, out that initially the practice followed by the apparently, has occurred in Mrs Paraschi's German authorities was to take account, for case, in which, because of the different ways the purposes of prolonging the reference in which the social security schemes are period, only of the periods in which benefits organized in the various Member States, were paid under the domestic legislation. particular events or circumstances which, in the Member State where the competent institution is established, give rise to entitle- ment to benefits, do not give rise to entitle- ment to similar benefits in the country from which the migrant worker originates, with In order to bring that practice to an end, the result that the worker may find that his the Community legislature amended Regu- expectation of a pension for reduced lation No 1408/71 by inserting, with retro- capacity to work is frustrated merely active effect, Article 9a, 3 according to because he has left the country in which his which: entitlement was acquired, despite the fact 3 — Council Regulation No 2332/89 of 18 June 1989 (Official that he has duly paid the legally prescribed Journal 1989 L 224, p. I). contributions.
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11. Whilst it is true that the Court has held nation which, by virtue of other dis- that Anicie 51 of the Treaty provides for tinguishing criteria, in fact achieve the the coordination, not the harmonization, of same result. 7 the legislation of the Member States and thus leaves in being differences between the social security systems of the Member States and hence in the rights of the people working there, * and also that Articles 7 and 12. In the light of the case-law to which I 48 of the Treaty, by prohibiting every have referred, serious doubts can but arise Member State from applying its law concerning a practice whereby no account is differently on the ground of nationality, are taken, for the purposes of prolonging the not concerned with any disparities in reference period, of events and circum- treatment which may result, between stances arising in another Member State Member States, from divergences existing which correspond to events and circum- between their laws, the fact remains that stances which, under the laws of the under Community law the laws of the Member State in which the competent Member States must be applied to all institution is located, give rise to entitlement persons subject to them in accordance with to a prolongation of that period where, objective criteria and without regard to their because of the different ways in which the nationality. 5 social security systems are organized, that situation would not have given rise to the payment of benefits in the country of residence.
Accordingly, the Court has made it clear that there would be discrimination if the conditions for the acquisition or retention of In such a case, the migrant worker would the right to social security benefits were find that he had to bear not the inevitable defined in such a way that they could in fact adverse consequences of existing differences be fulfilled only by nationals of the Member between the laws of the various Member State concerned or if the conditions for loss States but rather the specific effects of or suspension of the right were defined in national legislation which, in providing for such a way that they would in fact be more the possibility of prolonging the reference easily satisfied by nationals of other period, lays down a condition of such a Member States than by those of the State of kind that fulfilment of it might be more the competent institution. 6 difficult for a national of a Member State other than that in which the competent institution is established.
Furthermore, as has been consistently held, the principle of equal treatment prohibits not only overt discrimination based on 13. In fact, although in principle such legis- nationality but all covert forms of discrimi- lation applies without distinction, it is liable to have a much greater adverse effect on 4 — Case 227/89 Rönfeidt [1991] ECR 1-323, paragraph 12; migrant workers who, for various reasons, Case 313/86 Lenoir v Caisse d'Allocations Familiales des Alpes-Maritimes [1988] ECR 5391, paragraph 13; and tend to return to their countries of origin in Case 41/84 Pinna v Caisse d'Allocations Familiales de Savoie [1986] ECR 1, paragraph 20. 7 — Judgments in Pinna, supra, paragraph 2 3 ; Case 237/78 5 — Judgment in Case 1/78 Kenny v Insurance Officer [1978] Tota v Caisse Régionale d'Assurance de Maladie de Lille ECR 1489, paragraph 18. [1979] ECR 2645, paragraph 12; and Case 152/73 Sotgiu v 6 — Kenny, supra, paragraph 17. Deutsche Bundespost [1974] ECR 153, paragraph II.
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the event of illness or unemployment, with prevents such discrimination may be such as the result that they become subject to a to render that regulation, and more different social security system. particularly Article 9a thereof, invalid.
In that regard, it must be pointed out that, as is apparent from the foregoing reasoning Such legislation, by exacerbating the adverse and from the observations submitted by the effects of the diversity of the social security Commission, Article 9a is not really a systems, thus de facto has the effect, in provision for the coordination of the various numerous cases, of imposing the burden of social security systems but rather a residence on migrant workers and signifi- declaratory provision expounding the obli- cantly impedes implementation of the gation of non-discrimination laid down by principle of freedom of movement for the Treaty. workers.
Nevertheless, the fact cannot be overlooked that, in specifically setting out that obli- 14. It should be noted, incidentally, that the gation, the Community legislature introduction by the German legislature of unlawfully reduced its scope and that the transitional rules under which, in certain application of the provision in question by circumstances, it was possible to secure the national administrations and courts extended application of the previous system, allows discrimination that is incompatible does not change the main problem, quite with Community law to persist. apart from the difficulties encountered by migrant workers returning to their own countries in obtaining information about that system. Accordingly, Article 9a should be declared invalid in so far as it does not require account to be taken, for the purpose of prolonging the reference period, of events and circumstances arising in another Member State. 15. If therefore, as has been observed, Articles 48(2) and 51 prohibit the application of legislation like that at issue, in so far as it makes no provision for prolonging the reference period by 16. As to the effects of a ruling of inva- reference to events and circumstances lidity, as just proposed, two considerations occurring in another Member State, which must be borne in mind: in the first place, in correspond to events and circumstances and the particular circumstances of the present which, under the legal order in question, case, the discrimination is due more to what permit such a prolongation, it remains to be the law does not say than to what is does established whether the failure to include in and, in the second place, the right of indi- Regulation N o 1408/71 a provision which viduals to obtain a prolongation of the
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reference period, because of events and It follows that, pending new rules, the circumstances arising in another Member competent national authorities are required State, derives directly from the Treaty and to extend, in the way that I have suggested, would exist even in the absence of a specific the scope of the obligation imposed by legislative provision. Article 9a. 8
17. In the light of the foregoing considerations, I suggest that the Court give the following answers to the question submitted to it by the Sozialgericht Stuttgart:
1. Community law does not affect the right of the national legislature to make recognition of entitlement to a benefit conditional upon completion of a minimum period of insurance within a reference period prior to the material- ization of the contingency insured against.
2. If the legislation of a Member State makes recognition of entitlement to a benefit conditional upon completion of a minimum period of insurance within a reference period which precedes the materialization of the contingency insured against and provides that the supervening events or circumstances are to prolong that reference period, Articles 48(2) and 51 of the E E C Treaty preclude the application of such legislation in such a way that no account is taken, for the purpose of calculating the reference period, of corresponding events and circumstances in another Member State.
3. Article 9a of Regulation N o 1408/71 is invalid to the extent to which it does not provide that, for the purpose of prolonging the reference period which precedes the materialization of the contingency insured against, account is to be taken of events and circumstances arising in another Member State.
4. Pending the adoption of new rules, the competent national authorities are required, in the manner indicated above, to extend the scope of the obligation imposed by Article 9a of Regulation N o 1408/71.
8 — For a similar solution, sec the judgment in Case 300/86 Van Landschoot y Mera W[!988] ECR 3443, paragraphs 22 to 24.
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