C-227/89

5. It should also be pointed out that Article 2. Some particulars regarding the dispute 6 of Regulation No 1408/71 provides that, before the national court are in order. Mr as regards persons and matters which it Rönfeldt, a German national born in 1924 covers, it replaces any social security and now residing in German territory, paid convention binding two or more Member German old-age insurance contributions States. from 1941 to 1957 and then worked in Denmark until 1971, during which time he paid contributions to the Danish social security scheme, before returning to 6. In the dispute before the national court Germany, where he became subject to the German social security institution, compulsory insurance. although apparently not questioning the need to take account of the periods completed by Mr Rönfeldt in Denmark for the purpose of determining whether pension 3. According to the documents before the rights have been acquired, refuses to include Court, the German-Danish social insurance those periods when determining the amount Convention of 14 August 1953 provided of the pension payable in Germany. The that, for the purpose of the calculation of the pension paid to the claimant must therefore retirement pension provided in Germany, be calculated pro rata according to the German nationals who had worked in periods in respect of which he paid contri­ Denmark were entitled to have periods of butions in Germany.

* Original language: French. 1 — Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within 7. However, there are different retirement the Community (codified version contained in Annex I to Council Regulation No 2001/83; OJ 1983 L 230, p. 8). ages in Denmark and in Germany. In

Denmark the retirement age is 67 years, falls within its scope. In my opinion the whereas in Germany it is 65 years, with the answer is not in doubt. Anicie 94(2) option of early retirement at 63. Thus, expressly provides as follows: 'All periods of according to the approach of the competent insurance and, where appropriate, all German authority, Mr Rönfeldt is entitled periods of employment or residence to a German pension corresponding pro rata completed under the legislation of a to the period during which he has worked Member State before 1 October 1972 or

Stuttgart. In its question to the Court, the into consideration for the determination of Sozialgericht expresses doubt as to the rights in the Federal Republic of Germany. compatibility of the relevant national legis lation and Regulation No 1408/71 with Articles48 and 51. In order to establish the precise points on which that court seeks a ruling, however, reference should be made 10. Article 45 of the regulation lays down to the grounds set out in its order. A the detailed rules as to how insurance reading of the order discloses two distinct periods are to be taken into account by the subjects of concern. First, the Sozialgericht competent institution, which must treat asks the Court to interpret Article 94 of periods of contribution completed under Regulation No 1408/71 in order to establish Danish legislation as if they had been whether pre-existing pension rights, completed in Germany for the purpose of the acquired before the accession of a Member acquisition of pension rights.

11. In the specific circumstances of this down different age limits for entitlement case, the German social security institution to benefits under the statutory pension is obliged to add the Danish insurance insurance scheme. periods when determining the acquisition of pension rights in Germany, but is not required to take account of them when calculating the amount of the pension, since 9. The question with regard to the interpre the amount — in Germany — is entirely tation of Anicie 94 of Regulation No dependent on the periods completed under 1408/71 is whether the person concerned German legislation.

12. Turning to the disparity between 14. As a preliminary point I should observe Danish and German legislation as regards that this Court has held the application of the retirement age, I would point out that Article 6 of Regulation No 1408/71, which the Court has consistently held that Regu provides that the regulation is to replace the lation No 1408/71 'does not set up a existing social security conventions between common scheme of social security but the Member States, to be mandatory, even allows different national schemes to exist where the result would be a less advant

16. In my view the allusion to the provisions of the EEC Treaty regarding observance of property rights may be dealt social security for workers, which seek not with quite briefly. The position of a person to harmonize but to coordinate the laws of contemplating the future contingency of old the Member States. age cannot on any account be equated with that of a person holding a proprietary right. There might be uncertainty as to the legal status of a person already entitled to a retirement pension whose rights were affected by changes of the kind brought

2 — Judgment of 5 July 1988 in Case 21/87 Borowin v Bimdes- versichemngsanstalt für Angestellte [1988] ECR 3715, at one might choose to be guided by the prin paragraph 23; see also judgments of 12 July 1979 in Case ciples defined by the Court in its Petroni 5 266/78 Brunori v Landesversicherungsanstalt Rbeinprovinz [1979] ECR 2705, 12 June 1980 in Case 733/79 Caisse de judgment, where it held the regulation to be compensation v Laterza [1980] ECR 1915, and 9 July 1980 in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205. 4 — Judgment of 7 June 1973 in Case 82/72 Walder v Sociale 3 — Judgment of 15 January 1986 in Case 41/84 Pinna v Caisse Verzekeringsbank [1973] ECR 599. d'allocations familiales de la Savoie [1986] ECR 1, ai 5 — Judgment of 21 October 1975 in Case 24/75 Vetroni v paragraph 20.

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invalid in so far as its provisions deprived 19. In the first case, workers availing them­ workers of the social security advantages selves of their right to freedom of which would be conferred on them uncon­ movement are penalized by comparison with ditionally by the legislation of a single the position they would have enjoyed had it Member State. been governed by their national legislation alone. There, 'the aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of 18. Attractive as it seems at first sight, the movement', 7 the workers were to find parallel cannot, in my view, be accepted in themselves in a less favourable position than this case. In the first place, the Court if they had not availed themselves of that held in the Walder judgment 6 that the right. replacement of existing international conventions by Regulation No 1408/71 was 20. In the second case, on the other hand, mandatory even where it would entail less the inapplicability of the international advantageous consequences for the worker, convention can in no way be said to and it did so without suggesting in any way penalize the worker who has exercised his that it considered such a consequence to right to freedom of movement by affect the validity of the regulation in that comparison with the situation he would respect. In the second place, and more have enjoyed had he remained subject to importantly, there is a fundamental national law alone. That is to say, his rights difference between a case in which the will not be less than they would have been application of the regulation leads to a less had they been determined under national favourable position than the worker would legislation alone. As the Commission has have enjoyed by virtue of national law alone rightly pointed out, no entitlement to and a case in which its application brings receive benefits acquired by the applicant about a less favourable position than that under national legislation has been resulting from an international convention. withdrawn from him.