C-57/90

OPINION OF MR ADVOCATE GENERAL —CASE C-57/90

OPINION OF MR ADVOCATE GENERAL CARL OTTO LENZ delivered on 19 September 1991 *

Mr President, 3. According to the Commission, the Members of dye Court, important point is that the persons concerned are covered by the abovemen- doned reguládon and that the case concerns payments to sickness insurance schemes which undoubtedly fall within the scope of A —Tie bets application of Reguládon No 1408/71. Another decisive point for the Commission is that it believes it can deduce from Regu- ládon No 1408/71 (having regard to the relevant case-law) that there is a principle according to which migrant workers should 1. In this case the Commission is bringing be subject to only one system of legislation, an action against the French Republic for as Anicie 13(1) provides that persons to having failed to fulfil its obligations under whom the reguládon applies are to subject the combined provisions of Article 13(1) to the legislation of a single Member Sute and Article 33 of Council Regu- only and Article 33 puts this rule in lation (EEC) No 1408/71 » by deducting concrete form with regard to deductions sickness insurance contributions from from pensions in respect of sickness and supplementary and early retirement pensions maternity benefits. It should accordingly be received by persons who are resident in a assumed — the Commission referring at this Member State other than France. (It should stage to the principle known as parallelism be explained in this respect that, according — that a Member State may not deduct any to the definition of the subject matter of the sickness insurance contributions where, action and the content of the whole under Community law, the sickness proceedings, this case relates exclusively to insurance is governed the legislation of persons covered by the sickness insurance of another Member State (a view which is another Member State, whose costs are not shared by the majority of members of the therefore borne by the French scheme.) Administrative Commission on Social Security for Migrant Workers).

B — Appraisal French authorities in accordance with Article 19 of Regulation N o 1408/71, even where the retirement benefits are paid in another Member State. For the decisive factor is that recipients of early retirement 5. 1. Consideration should be given, first of pensions are to be regarded as employed all, to the defendant's argument in relation persons, so that Article 34(2) of Regu­ to recipients of early retirement benefits, lation N o 1408/71, according to which which is that under French legislation there Articles 27 to 33 are not to apply to always exists entitlement to benefits in the pensioners who are entitled to benefits case of sickness and maternity, regardless under the legislation of a Member Sute as a whether the recipient resides in France or in result of pursuing a professional or trade another Member State. The defendant is of activity, applies. the opinion that, in such a case, to require those recipients to contribute towards the French sickness insurance scheme as well would not in any way infringe the principle of parallelism referred to by the Commission — if any such principle exists at all under Community law. 7. I would state right now, however, that it seems difficult on this basis to maintain the point of view that recipients of early retirement pensions as a whole are in any 6. We have seen from the defendant's event wrongly included in the action rejoinder that, in cases in which early brought by the Commission and in the form retirement pensions alone are paid (subject of order sought. to compliance with the condition that no professional or trade activity is being pursued), the relevant case-law (see the judgment in Case 302/84) 2 provides that French law is applicable as the law of the State in which the person concerned was last employed, so that the con of benefits in 8. Admittedly, the defendant's argument the case of sickness is borne by the French seems indisputable in the case of persons State in accordance with Article 19 of who receive only early retirement pensions. Regulation N o 1408/71. That judgment For Article 19 of Regulation N o 1408/71 also states that the same applies to persons must be decisive in relation to these persons, who oho receive an old-age pension, since as can be seen from the reasoned Opinion early retirement pensions can only be drawn of the Commission attached to the defence simultaneously with certain old-age which does not relate to the present case. pensions (i. e. those which relate to an It is difficult, however, to accept activity which precedes the activity for which the defendant's line of argument in the early retirement pensions are paid). the — equally conceivable — situations in Therefore, in a case of this kind, French law which recipients of an early retirement is applicable by reference to the territory in pension are simultaneously entitled to a which the person was last employed, and pension in respect of a previous activity in the con of benefits in the case of sickness another Member Sute. The defendant is would therefore have to be borne by the therefore wrong in this case to apply Article 19 by way of Article 34(2), whose 2 — Ten Holder r Nauwr Algemene Bedrņhverenigmg [1986] ECR 1821. terms I have already indicated, since the

9. It is not therefore possible to consider dismissing the claim in so far as it concerns the levying upon recipients of early retirement pensions of contributions to French sickness insurance on the ground that the condition mentioned in the subject- 12. One relevant judgment is that in matter of the action (sickness insurance Case 9 2 / 6 3 , 3 which concerned, in cover provided by institutions other than particular, the interpretation of Article 12 French institutions) is not fulfilled. of Regulation No 3, that is to say, the provision equivalent to Article 13 of Regu- lation No 1408/71 because it determined the law applicable to employed persons, the difference being, however, that it did not make it so clear as Article 13 of Regu- 10. 2. It is accordingly necessary to lation No 1408/71 that the persons consider, first of all, whether the existence covered by Regulation No 3 were to be of the principle relied upon by the subject to the legislation of only one Commission and described at the beginning Member State. In order to determine the of my Opinion can actually be established, proper scope of Arude 12, it was therefore or whether the defendant is right in main- necessary to examine whether the simul- taining that no such principle can apply taneous application of more than on system since Regulation No 1408/71 contains of legislation to the same employed person many exceptions to the general rule that was contrary to Articles 48 to 51 of the only one system of legislation should be Treaty. After examining that question in the applicable and often allows more than one light of the abovemenuoned provisions of system of legislation to apply at the same the Treaty, the Court, whilst emphasizing time (as, for example, Article 14c and the principle that migrant workers should be Annex VII to which that article refers, protected from any disadvantages in social show). security matters, concluded that Article 12 of Regulation No 3 precluded the application of the legislation of a Member State other than the State on whose territory the person worked. To judge by

15. Reference should also be made to the 13. The situation is similar with regard to judgment in Case C-140/88, 9 which gave the judgment in Case 19/67, 4 which also detailed consideration to Article 33 of refers to Article 12 of Regulation N o 3. It Regulation N o 1408/71, which states: 'The is noteworthy that the Commission's case is institution of a Member State which is supported by the fact that this judgment responsible for payment of a pension and stated that it was in the interests of both which administers legislation providing for workers and employers, as much as of deductions from pensions in respect of insurance funds, to avoid any plurality or contributions for sickness and maternity purposeless confusion of contributions and shall be authorized to make such liabilities which would result from the deductions, calculated in accordance with simultaneous or alternate application of the legislation concerned, from the pension several legislative systems. The ruling that payable by such institution, to the extent Article 12 prohibits the concurrent that the cost of the benefits... is to be application of national legislation if this borne by an institution of the said Member would lead to an increase in the charges State'). This judgment is worth mentioning borne by wage-earners or their employers because, in referring to the objectives without any corresponding supplementary pursued by Regulation No 1408/71, it protection is particularly relevant in this states that the rules laid down by Article 33 regard. constitute the application of a more general principle.

principle to allow certain exceptions to it 20. The Commission countered this point (although, as the Commission quite rightly with the observation that under French observes, these must then strictly construed). legislation there is no distinction between Secondly, the Annex in question only relates contributions deducted from statutory to the very specific case in which a person is pensions and those deducted from early self-employed and gainfully employed at the retirement or supplementary pensions. All same time and therefore has absolutely these deductions are governed by the same nothing to do with the problem of sickness provisions, and the common purpose of all insurance. of them is to finance general sickness insurance. The Commission observed, secondly, that Regulation N o 1408/71 does not contain a specific definition of the term 'contribution' and that none of its provisions indicate that some contributions should be treated separately by virtue of their 17. If this line of reasoning is followed and character as solidarity contributions. the Commission's proposition concerning the application of the principle of a single system of legislation or the principle of parallelism between the obligation to pay contributions and benefits is accordingly accepted, it must necessarily be concluded that rules like the French provisions which are the subject of this dispute are funda- mentally incompatible with those principles in so far as they require recipients of early retirement or supplementary pensions who, by virtue of Community law, are insured 21. (b) In so far as the defendant also relies against sickness in another Member State to on the principle of legai certainty, developed pay contributions towards French sickness in case-law which is of particular insurance cover. importance with regard to the financial consequences of Community law (see the judgment in Case C-30/89) 10 and therefore also plays a prominent role in social security law, it is open to the counter- argument that the principle invoked by the Commission is one which — as has already been demonstrated — the Court derived 18. 3. This conclusion is not altered by long ago from the rules of the Treaty on the various other arguments put forward by the abolition of obstacles to the free movement defendant, which I will now examine. of persons. Its scope of application has therefore been beyond doubt for some considerable time, even if Article 33 — in accordance with the matters covered by Regulation No 1408/71—only refers to the institutions paying such old-age insurance benefits which come within the 19. (a) This is particularly so in so far as it scope of the Regulation and to their right to points out that the deductions in question deduct contributions for sickness insurance. are solidarity contributions, which do not give rise to any entitlements. 10 — Commission v frän«· (1990] ECR 1-691.

22. (c) In so far as the defendant further 24. Although it mun be admitted that pointed out that Regulation No 1408/71 Article 33 certainly does not have direct was adopted pursuant to Article 51 of the application in the present case because of its EEC Treaty (which only refers to the limited scope, the fact remains that the aggregation of all periods taken into Commission's view is at any rate consistent account under the laws of the several with the broad principle of parallelism countries and the payment of benefits to developed in case-law, which makes it clear persons resident in the territories of other that it is not the basis of assessment which is Member States) and that it is not therefore the determining factor but the purpose of concerned with questions of social security the deduction is also important under financing, two points can be made: Article Community law. 51 of the EEC Treaty merely sets out in (a) and (b) the most important measures (as is shown by the use of the words 'insbe- sondere' and 'notamment' in the first paragraph) and does not therefore contain an exhaustive list of all the relevant provisions. Secondly, it is already quite clear 25. (e) Finally, the Commission's position is from Article 33 of Regulation N o 1408/71 not open to the objection that it leads to (which regulates questions concerning the discrimination in two ways: first, because collection of contributions) and from the employees in receipt of early retirement abovementioned principle of parallelism, pensions who are resident outside France which is mentioned in earl·/ case-law, that would be given preferential treatment over the defendant's view is not tenable. employees residing in France through being exempt from paying contributions; secondly, because the Commission's assessment does not include social security systems financed from taxation, so that in Member States having such systems the deduction of contributions from supplementary pensions and early retirement pensions is possible in any event. 23. (d) This adverse conclusion also applies to the argument based on Article 33 of Regulation No 1408/71 that the basis of assessment ('assiette') is decisive for this provision and that deductions from early retirement and supplementary pensions should be ignored since, according to 26. As far as the first point is concerned, I case-law, these benefits should not be detect a certain contradiction in the treated in the same way as old-age pensions defendant's arguments. In the written (see the judgment in Case 171/82" procedure the defendant stated that reci- concerning the French system of pients of early retirement pensions resident 'guaranteed retirement income' and the in France paid contributions on those judgment in Case C-262/88 12 relating to a benefits even if they were not members of supplementary pension which was treated as its sickness insurance scheme, whereas at 'pa/ within the meaning of Article 119 of the hearing its representative gave a clear the EEC Treaty). negative answer to the question whether there were recipients of earl·/ retirement 1 1 — Valentia v Assedie [19M] ECR 2157. pensions resident in France who were not 12 — Barber v Giordan Royal Exchange Assurance [1990] ECR I-1B89. insured there against sickness. In response,

C — Opinion

28. 4. In summary, I am compelled to conclude that the Commission's action appears to be well founded and that the Court of Justice should therefore declare that, by deducting sickness insurance contributions towards French sickness insurance cover from supplementary and early retirement pensions received by persons who are resident in a Member State other than France and who are insured against sickness there, the French Republic has failed to fulfil its obli- gations under Council Regulation (EEC) N o 1408/71. In these circumstances the defendant should also be ordered to pay the costs.

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