C-10/90

OPINION OF MR DARMON —CASE C-10/90

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 15 January 1991 *

Mr President, with Belgian law, the silicosis pension was Members of the Court, reduced in 1983 when Mr Masgio became entitled to a Belgian old-age pension. That reduction is not in issue here.

1. The preliminary question raised by the Bundessozialgericht arises out of a comparison between the German Reichs- 5. Also in 1983, Mr Masgio was granted an knappschaftsgesetz (Law on the Miners' old-age pension under the German miners' Insurance Fund), on the one hand, and scheme. The position of miners simul- Articles 7 and 48 to 51 of the EEC Treaty taneously receiving both a pension of that and Article 3 of Council Regulation (EEC) kind and an accident pension is governed by N o 1408/71 of 14 June 1971 on the the Reichsknappschaftsgesetz, in particular application of social security schemes to by Paragraphs 75(1) and 76a. employed persons, to self-employed persons and to members of their families moving within the Community, 1 on the other.

6. Paragraph 75(1) provides that the miner's pension is 'suspended' to the extent that, when added to the accident pension, it 2. Maria Masgio, the widow of an Italian exceeds 9 5 % of the annual earnings on national who had worked in the mining which the accident pension is calculated and industry in Belgium and in the Federal 95% of the basis of calculation of the Republic of Germany, is acting in the main old-age pension. In other words, the ceiling proceedings as successor to her late to be applied is that which entails the husband's rights. The various stages in those smaller reduction of the old-age pension. proceedings are detailed in the Report for the Hearing. 2

'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimi- nation on grounds of nationality shall be prohibited.' 12. In the decision against which the appeal before the Bundessozialgericht is directed, the Landessozialgericht (Higher Social 10. In its judgment of 14 July 1977 in Court) for the Land of Nordrhein- Sagulo, Brenca and Bakhouche, 3the Court of Westfalen stated 5 that 'a possible legal Justice held that disadvantage in regard to benefits was not a crucial objective criterion for the choice of place of employment'. However, the 'the general principle of Article 7 can only plaintiff's representative pointed out at the apply subject to the special provisions of the hearing that a person who has suffered an Treaty'. accident outside Germany would be ill-advised to move there for the purposes of work and then retirement, since the effects It is therefore unnecessary to interpret that of the pension suspension would be harsher article, since special provisions of the for such a person than for German Treaty, in particular those to which the nationals, who may opt for the more national court refers, are applicable. favourable system of calculation. That being so, in accordance with the Court's case-law, it is not necessary to prove the actual existence of an objectively decisive criterion 11. Articles 48 to 51 of the EEC Treaty in the choice of place of employment. 6 form the basis, the framework and the What matters is to ensure the achievement bounds of the provisions of regulations in of the aims set out in Articles 48 to 51 of the field of social security, 4 in particular the Treaty, and in particular to secure 3 — Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, paragraph 11 5 — Order for reference, p 3 of the English translation 6 — Examples are Case 41/84 Pinna v Cause d'allocattons fami- 4 — Case 1/67 Ciecheliki v Sécurité socíale d'Orléant [1967] ECR 181 at p 188; Case 24/75 Petrom v ONPTS [1975] lialei de la Savoie [1986] ECR 1 and Case 20/85 Romello v ECR 1149. paragraph 11 of lhe decision Landeiversicheningsamtalt Schwaben [1988] ECR 2805

compliance with the rule of equal migrant workers who had obtained in treatment 7 enshrined in Article 3(1) of another Member State a qualification higher Regulation No 1408/71. 8 than that which they had in the Federal Republic of Germany inasmuch as they were thereby unable to obtain recognition of that qualification when claiming their 13. In previous decisions, the Court has pension. always looked beyond the formal criterion of nationality to consider whether the other criteria applied could lead to equivalent discrimination. 9 In particular, in CRAM v Toia,10 the Court held that 15. It would appear that the rules which may thus be inferred from the Toia and Roviello judgments must be decisive in determining the case before the national 'the rules on equality of treatment, laid court. It is true that the first sentence of down by Article 3(1) of the regulation, Paragraph 76a(2) of the Reichsknapp- prohibit not only patent discrimination, schaftsgesetz does not lay down any based on the nationality of the beneficiaries criterion of nationality. But there is every of social security schemes, but also all reason to suppose — and this is a question disguised forms of discrimination which, by to be determined by the national the application of other distinguishing court — that, in the words of the Roviello criteria, lead in fact to the same result'. judgment, its application is 'concerned essentially with migrant workers coming from other Member States who have been employed successively in those States and in 14. In a more recent case, 11the Court was the Federal Republic of Germany'. called upon to consider certain provisions of Community law which, when combined with those of the German legislation, prevented activities not subject to compulsory insurance in Germany from being taken into account when determining 16. In Toia, however, the Court added that qualification for entitlement to a pension. such forms of indirect discrimination could The Court observed that that restriction, be justified by objective differences. 12 In although it applied independently of the that regard, the Landessozialgericht nationality of the worker, was concerned Nordrhein-Westfalen had pointed out 13 that essentially with migrant workers coming the different treatment of persons receiving from other Member States who had been foreign accident pensions might be objec- employed successively in those States and in tively justified by the fact that it was often the Federal Republic of Germany. It not possible in such cases to determine the therefore found that those provisions annual earnings. The Commission 1 4and the worked to the disadvantage of certain plaintiff in the main proceedings 15 have rightly observed that lack of information 7 — Pinna, paragraph 24. concerning annual earnings cannot 8 — Case 63/76 Inzirillo vCaisse d'allocations familiales de Lyon [1976] ECR 2057, paragraph 14. 12 — Toia, paragraph 14. 9 — Pinna, paragraph 23. 13 — Order for reference, p. 4 of the English translation. 10 — Case 237/78 CRAM v Toia [1979] ECR 2645, paragraph 12. 14 — Observations of the Commission, point 26. 11 — Roviello, paragraphs 15 and 16. 15 — Observations of the plaintiff, p. 3.

16 — First sentence (point 4) and third sentence of Paragraph 93(4) of Book VI of the Sozialgesetzbuch (Social Code), 17 — Observations of the Commission, point 28 Law of 18 December 1989 (BGBl I, p. 2261)

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