C-368/87

HARTMANN TROIANI v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

OPINION OF ADVOCATE GENERAL JACOBS * delivered on 22 February 1989

My Lords, ordnung), reimbursement of pension contri­ butions she had made in respect of periods of employment in Germany and after a further 11 months of employment there, during which she made compulsory pension contributions, went to live in Italy with her husband. Since 1964 she has worked in Italy for certain periods and made compulsory insurance contributions there.

* Original language: English

OPINION OF MR JACOBS —CASE 368/87

German pension fund in respect of an of making the application, should be activity or employment subject to the engaged in an activity or employment compulsory German pension scheme. I shall subject to the compulsory German pension refer to the first condition as the condition scheme. The court was also unsure whether, of present affiliation. As the referring court in the event that Article 9(2) did not apply, points out, for an activity or employment to that condition of present affiliation could be be subject to the compulsory German said to constitute an obstacle to the free pension scheme, it must be carried out on movement of workers contrary to Article 48 the national territory. et seq. of the EEC Treaty.

HARTMANN TROIANI v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

The first question insurance. It seems at first sight questionable whether the reacquisition of past pension rights can properly be regarded as falling within the concept of 'continued insurance', a concept which seems to relate to the acquisition of new rights rather than to the 7. Article 9 of Council Regulation reacquisition of past rights. However, in No 1408/71 reads as follows: Case 93/76 Liégeois v Office national des pensions pour travailleurs salariés [1977] ECR 543, the Court, having compared the different language versions of Article 9, stated at paragraph 14 that those versions 'Admission to voluntary or optional continued 'show an intention to cover every type of insurance insurance incorporating a voluntary element and it matters little whether there is any continuance of existing insurance or not'. Although the factual context in which that proposition was stated was different from (1) The provisions of the legislation of any that of the present case, the proposition is Member State which make admission to clearly designed to be of general application voluntary or optional continued insurance and is applicable here. Moreover, there conditional upon residence in the territory seems no reason of principle why Article 9 of that State shall not apply to persons should not apply to the reacquisition of resident in the territory of another Member pension rights in the same way as to State, provided that at some time in their continued insurance. Such an interpretation past working life they were subject to the of Article 9 is clearly in accordance with legislation of the first State as employed or the purposes of Regulation No 1408/71. as self-employed persons. Article 9 is therefore applicable to the reac- quisition of past pension rights. Its applica­ bility is, as I shall seek to show, particularly significant for the answer to the first question.

scheme. It appears from the file that the 12. The Commission also points to plaintiff, at the time of her application, was Case 70/80 Vigier v Bundesversicherungs- affiliated to the compulsory pension scheme anstalt für Angestellte [1981] ECR 229 in Italy. which is somewhat closer to the present case. In that case a French national sought to take advantage of German legislation permitting victims of Nazi persecution to make retroactive social security contri­ butions. The Court ruled that Article 9(2) of Regulation No 1408/71 did not require insurance periods completed in France to be treated as equivalent for the purposes of 10. The written observations for the satisfying a preliminary condition of eligi­ plaintiff take the view that Article 9(2) bility to make retroactive payments under should be given a broad interpretation. The which the person concerned had to establish Commission, however, argues that the status of an 'insured person' by means Article 9(2) is concerned only with the of affiliation to the national social security assimilation of insurance periods stricto sensu scheme. and not with other conditions of admission to insurance schemes which have nothing to do with the completion of insurance periods as such. In this connection the Commission points to a number of judgments in which, it argues, this Court has refused to extend the 13. I do not find it possible to accept the scope of provisions of Regulation Commission's point of view. I agree that in No 1408/71 dealing with the assimilation the case-law referred to the Court has of insurance periods to cover other types of shown a reluctance to extend the scope of conditions relating to affiliation to insurance provisions dealing with equivalence of schemes. insurance periods to cover other types of conditions unrelated to the completion of insurance periods as such. Where I differ from the Commission is that I do not agree that a condition of present affiliation to a compulsory insurance scheme must be seen as unrelated to the completion of insurance periods. On the contrary, affiliation to an insurance scheme is an essential 11. Thus the Commission points out that in concomitant of the completion of insurance Case 20/75 d'Amico v Landesversicherungs- periods and must therefore be seen as inte­ anstalt Rheinland-Pfalz [1975] ECR 891, the grally connected therewith. Court held that Article 45(1) of Regulation No 1408/71 did not cover a requirement of German law which made the early acquisition of the right to retirement benefit conditional upon the person concerned having been unemployed for a certain time, 14. The case-law referred to by the with the result that the German insurance Commission can in my view readily be authorities were not required to take into distinguished from the present case. Both consideration the fact that Mr d'Amico had the d'Amico case and the Brunori case also been registered as unemployed in another referred to by the Commission Member State. (Case 266/78 [1979] ECR 2705) arose

16. In any event if, instead of focusing only on Article 9(2), Article 9 is taken as a whole, then it appears that that provision can be taken to contemplate a condition of 15. At first sight, the issue in the Vigier case present affiliation such as that at issue in the appears similar to that in the present case, present case. namely, whether Article 9(2) permits the status of insured person acquired by virtue of affiliation to an insurance scheme in one Member State to be treated as equivalent for the purposes of the acquisition of that status in another Member State. However, there are important differences between that 17. In the first place, it is necessary to have case and the present one. In Vigier, the regard also to the provisions of Article 9(1). Court ruled that Article 9(2) did not Article 9(1) requires present residence in require the social security institution of a another Member State to be treated as equi­ Member State to take into account periods valent in a case where national legislation of insurance completed in another Member requires residence as a condition of State for the purposes of the acquisition of admission to a voluntary pension insurance the status of an insured person in a case scheme. In the case of workers, a where the person in question had never requirement of affiliation is (other than in been affiliated to the insurance scheme of the special case of frontier workers) the first Member State, i. e. had never paid tantamount to a requirement of residence. the single contribution required under the law of that State in order to give rise to the status of insured person. In the present case, the plaintiff was, before her departure for Italy, affiliated to the German social security scheme, and paid contributions for a number of years. Indeed the national 18. Secondly, if it is accepted that, as I have provisions in question, by their nature, can already indicated with reference to the apply only to persons who have been so Liégeois case, Article 9 applies not only to affiliated and have made contributions. In continued insurance but also to the reac­ addition, the plaintiff in Vigier, who had quisition of pension rights, then that

provision can be taken to contemplate a 'Article 9 of Regulation No 1408/71 must condition of present affiliation in addition be interpreted as meaning that where, under to the condition of present residence and the legislation of a Member State, the right the condition of completion of periods of to make voluntary pension-insurance contri­ insurance which are expressly referred to in butions in respect of periods of insurance paragraphs 1 and 2. In the case of previously completed under the legislation voluntary or optional continued insurance it of that Member State is conditional upon would not be necessary to refer to a being affiliated to the compulsory pension- condition of present affiliation to a insurance scheme of that Member State at compulsory scheme, because it can be the time when the application to make the presumed that present affiliation would not voluntary contributions is made, affiliation normally be a condition of admission to a to a compulsory pension scheme in another voluntary scheme. It is therefore not Member State at that time shall be treated surprising that Article 9 does not refer as satisfying that condition.' expressly to such a condition. However, once it is accepted that Article 9 applies also to the reacquisition of pension rights, then it is clear that the condition of present affiliation must be treated in the same way as the condition of present residence and the condition of completion of periods of The second question insurance. Consequently, if Article 9 is read as a whole, it must be regarded as meaning that current affiliation in another Member State must be treated as satisfying the condition of present affiliation. 21. In view of the proposed reply to the first question, an answer to the second question is not strictly called for. However, I will state briefly my views on that question, which raises an important issue as to the possible role of Article48 of the 19. Furthermore, the purpose of Article 9 is Treaty in supplementing Community legis­ to enable a worker to qualify for voluntary lation on social security. insurance in one Member State when he is resident in another Member State or has completed periods of insurance in another Member State. The requirement of present affiliation in the first Member State would defeat that purpose. 22. The first point is whether the condition of present affiliation is contrary to the principle prohibiting discrimination on grounds of nationality, stated in Articles 7 and 48 of the Treaty and also in Article 3(1) of Regulation No 1408/71. I agree with the 20. Accordingly, I am of the view that the Commission that that principle has no first question should be answered in the application in this case. In my view, apart affirmative. I would suggest that the answer from any other considerations, and even if be framed in the following terms, in order the condition could not be objectively to make clear the exact scope of the ruling: justified, it does not overtly discriminate,

23. However, the Commission argues that the guarantee of free movement of workers, laid down in Article 48(1) and elaborated in particular by Council Regulation (EEC) No 1612/68 on the free movement for workers within the Community (Official 24. It is noteworthy that the Commission Journal, English Special Edition 1968 (II), has not cited any case-law in support of its p. 475), is not limited to the abolition of thesis. I do not think that the judgments of discrimination on grounds of nationality but 7 July 1988 in Case 143/87 Stanton v Inasti involves also the abolition of obstacles to [1988] ECR 3877 and Joined Cases 154 free movement. I agree with the and 155/87 Inasti v Wolf[1988] ECR 3897 Commission that the disputed condition of would, taken in their context, assist the German legislation is capable of constituting Commission's argument. There the Court an obstacle to the free movement of ruled that a provision of Belgian social workers in that it penalizes a person who security legislation which refused to take has made effective use of that freedom. It is into account employment in another undeniable, also, that a broad interpretation Member State for the purposes of deter­ must be given to Article 48. However, I am mining whether self-employed workers were doubtful about the possibility of reliance on exempt from a requirement to make social general Treaty provisions — such as security contributions in Belgium, was Article 48 — in order to fill gaps in contrary to Articles 48 and 52 of the Community social security legislation. The Treaty, since the provision had the effect of question arises, it must be remembered, only forming an obstacle to the exercise of occu­ on the hypothesis that the Community pational activities outside that Member legislator left a lacuna in Article 9 of Regu­ State. However, in relation to those lation No 1408/71. It is, in my view, a judgments it is notable that the relevant surprising proposition that where there is a Community legislation — namely Council detailed scheme of legislation in place it is Regulation (EEC) No 1390/81, extending