C-23/92

2. Maria Grana-Novoa is of Spanish nation­ ality. She has never pursued in Spain any Ms Grana-Novoa's appeal against that activity on the basis of which she was com- decision was dismissed by the Sozialgericht pulsorily insured. From December 1970 to Frankfurt on 18 March 1985. Her further June 1975 she worked in Switzerland, where appeal, to the Hessisches Landessozialger­ she was compulsorily insured. In November icht, was dismissed by judgment of 17 March 1976 she went to the Federal Republic of 1989. On 7 June 1989 she applied to the Bundessozialgericht for leave to appeal on a point of law, contending inter alia that a Spanish-Swiss social security convention had * Original language. Dutch been infringed and that under Article 9 of 1 Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to that convention Switzerland was required to employed persons, to self employed persons and to mem bers of their families moving within the Community For treat Spanish and Swiss nationals equally this case reference may be made to the consolidated version of 1983 (OJ 1983 I. 230, p. 6); in the meantime a more recent with regard to calculation of qualifying peri­ consolidated version has appeared in OJ 1992 C 325. p. 1. ods and hence to recognize her insurance

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'Where, in addition to the conditions to 3. Before going into those questions I which the application of this Convention is should like to outline briefly the provisions subject, the conditions for the application of of the relevant international conventions. another convention or of supranational rules The aforementioned Convention between are also met, the German institution shall not Germany and Switzerland of 25 February take account, for the application of this Con- 1964 (hereinafter referred to as 'the Conven- vention, of that other convention or of those tion'), supplemented by a convention of supranational rules unless otherwise pro- 9 September 1975, 5 prescribes inter alia that, vided therein.'

2 — Bundesgesetzblatt 1977, II, pp. 687 and 722. 3 — BGBl. 1965, II, p. 1294. 4 — Sec the reasoning on this point in the Report for the Hearing According to the Bundessozialgericht it in section 7. 5 — BGBl. 1976, II, p. 1372. follows from that provision that in the

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'1. Arc Articles 3(1) and l(j) of Regulation 5. The Bundessozialgericht's first question is (EEC) No 1408/71 of the Council of whether a convention concluded by a Mem­ 14 June 1971 on the application of social ber State with a third country, which has security schemes to employed persons, become, as a statute, part of the national law to self-employed persons and to mem­ of that Member State, falls as such within the bers of their families moving within the scope of Regulation N o 1408/71 and more Community to be interpreted as mean­ particularly of the principle of equal treat­ ing that "legislation" within the mean­ ment contained therein. I would mention ing of Article 3(1) extends to the provi­ that that principle is expressed in Article 3(1) sions of international conventions of the regulation in the following terms: between a Member Slate and a non- member country which have been incorporated as statute law into the domestic legal order of that Member 'Subject to the special provisions of this State? regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as 2. If so, are Article 7 of the EEC Treaty the nationals of that State.' and Article 3(1) of Regulation No 1408/71 to be interpreted as preventing a Member State from including in a convention with a non-member country For the purposes of the application of the arrangements whereby supra-national regulation the definition of legislation (or provisions arc to be disregarded in the legal rules) is given by Article l(j) as:

Let me give my own view straight away: like the first-named parties, my opinion is that 'any bilateral or multilateral instrument the question requires a negative answer. But which binds or will bind two or more Mem- first I should like to mention that the ber States exclusively, and any other multi- requirement in some Member States 6 that a lateral instrument which binds or will bind treaty must be transposed into a national at least two Member States and one or more Law in order to produce legal effects in the other States in the field of social security, for domestic legal order is not, in my view, rel- all or part of the branches and schemes set evant to the answer to this question. That out in Article 4(1) and (2), together with idea is linked to the so-called dualistic or agreements, of whatever kind, concluded monistic view which a State takes with pursuant to the said instruments'. regard to the relationship between the domestic legal order and international law. It should therefore have no influence on the 7 — With regard to the problems to which a dualistic system may Court's interpretation of a concept of Com- lead as regards possible conflicts of laws and the application of the principle 'lex posterior derogat legi priori', see inter munity law, which must operate uniformly alia P. J. G. Kapteyn and P. VerLoren van Themaat, Intro- irrespective of the view prevailing in a duction to the law of the European Communities, L. W. Gormley (ed.), Deventer, Kluwer Law & Taxation, Î988, pp. 40 and 41, and, with more particular reference to the Ger- man context, O. Kimminich, Einführung in das Völkerrecht, München, Saur, 1987, p. 265 et seq. See also the observations of M. Waelbroek putting the matter in perspective: 'Enforce- 6 — Including, according to the order for reference, the Federal ability of the EEC-EFTA Free Trade Agreements: A Reply', Republic, at least as regards international conventions laying Eur. L. Rev., 1978, pp. 27, 28 and 29. down rights and obligations in the sphere of social security.

8. The reason for this restricted definition of the concept of 'social security convention' With regard to the category of the existing becomes clear when it is related to the system bilateral social security conventions between for which Regulation No 1408/71 provides Member States which, in accordance with the with regard to such conventions in Article said exception in Article 7(2)(c) are not 3(3) and Articles 6, 7 and 8 of the regulation. replaced by Regulation No 1408/71 (as for new conventions concluded in accordance with the provisions of the said Article 8(1)), Article 3(3) provides that the principle of equal treatment shall apply to those conven­ tions too 'save as provided in Annex III'. To summarize it briefly, this is what the sys­ tem amounts to. Article 6 lays down the gen­ eral rule: Regulation No 1408/71 replaces any social security convention linking cither two or more Member States exclusively or at least two Member States and one or more third countries, at least — in the latter case, dealt with in subparagraph (b) of the article — where settlement of the cases concerned docs not involve any institution of one of the latter States. 8However, Article 7 makes a If Annex III is considered more closely it limited exception for a number of existing becomes apparent that it concerns exclusively international provisions, including the provi­ a series of provisions of bilateral social secu­ sions of the social security conventions listed rity conventions concluded by Member States with each other 'remaining applicable notwithstanding Article 6 of the regulation' (List A), in other words which Regulation 8 - The Court has repeatedly confirmed that this principle of substitution is of an imperative nature which permits of no No 1408/71 docs not replace, or 'which do exceptions apart from the cases expressly mentioned in the not apply to all persons to whom the regu­ regulation: see (with regard to the analogous provision of Article 5 of Regulation No 3) the judgments in Case lation applies' (List B), in other words to 32/72 Walder ν Sociale Verzekeringsbank [1973]ECR 599 at paragraphs 6 and 7 and in Case C 227/89 Ronfeldt [1991] whom the principle of equal treatment docs ECR I 323 at paragraph 22. not extend.

9. It appears from this brief survey that 10. The idea that bilateral conventions con- Regulation No 1408/71 does not settle the cluded between a Member State and a third position of bilateral conventions concluded country do not come within the concept of by a single Member State with a third coun- 'legislation' in Article l(j) of Regulation No try in the field of social security as regards 1408/71 is moreover confirmed by the case- either the question of the replacement or the law of the Court, in which respect I may continued validity of international conven- refer above all to the judgments in Cases tions or the application of the principle of 16/72 Ortskrankenkasse Hamburg, in Case equal treatment in respect thereof. Can it in 75/76 Kaucic v Institut Assurances Maladie- these circumstances have been the intention Invalidité and in Case 21/87 Borowitz v of the Community legislature to regulate the Bundesversicherungsanstalt für Angestellte. status of such bilateral conventions by impli- In Ortskrankenkasse Hamburg the Bundes- cation and to bring them within the field of sozialgericht had asked the Court inter alia application of Regulation N o 1408/71 by whether an insurance organization of a allowing them to come within the concept of Member State, in that instance Germany, 'legislation' in Article l(j)? I find that hard to must, for the acquisition of a right to certain imagine. benefits under Regulation No 3 (that is, the predecessor of Regulation No 1408/71), also take into account insurance periods which an insurance organization in another Member State (Italy) was bound to consider under a bilateral convention which that country had concluded with a third country (in that case

third country. Moreover no reservation provisions (dispositions statutaires) present would then apply to such replacement, not and future of each Member State relating to even one comparable with Article 6(b) (see the social security schemes and branches of section 8 above), in which the application of social security'. The Court therefore con- Regulation N o 1408/71 is simply subject to cluded that: provisions which may be applied without involving any institution of the third coun-

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organizations in the Member States are not 11. The fact that Community law, in partic­ bound to take into account affiliation periods ular Regulation No 1408/71, does not completed in third countries'. require Member States to take account of insurance periods completed in third coun­ tries, but permits them to do so on a volun­ tary basis or pursuant to a bilateral conven­ tion between the Member State and the third country in question was confirmed in the The Kaucic case concerned an invalidity pen­ Borowitz judgment. In that case the Bundes­ sion payable in Belgium to the persons enti­ sozialgericht had asked the Court whether tled under a deceased Italian worker who the regulation prevented a German insurance had worked in Italy, Belgium and Austria institution, in deciding whether to include and had acquired in Austria an invalidity periods of non-payment of contribution pension calculated in accordance with a within the meaning of the German legisla­ bilateral social security convention between tion, from assimilating premiums, contribu­ Italy and Austria. The Court confirmed that tions and affiliation to an insurance scheme the application of a national rule prohibiting in a third country, namely Poland, with aggregation in such a situation was compati­ which the Federal Republic had concluded a ble with Regulations Nos 3 and 4 (which at bilateral convention on reciprocal assimila­ that time were still applicable): tion of insurance periods, to compulsory premiums, contributions and affiliation to pension insurance in Germany (as it was required to do for premiums and contribu­ tions paid in other Member States and affili­ ation to insurance schemes there). The Court came to the conclusion that no provision of 'The provisions of Regulations Nos 3 and Regulation No 1408/71 precluded the Ger­ 4 concerning the aggregation of insurance man institution from treating periods of periods refer only to periods completed insurance completed under Polish legislation under the legislation of the Member States. as equivalent to periods of insurance com­ pleted under its own legislation. 1 1 The Court added:

become periods "completed under the legis- 12. Finally the solution suggested here is lation of the Member States" within the supported also by the special nature of a meaning of Article 46 of the regulation. bilateral convention between a Member State Consequently, no provision requires the and a third country. Such an agreement is the institutions of the other Member States to result of a process of negotiation between take account of them when making calcula- both States in which the respective contract- tions under Article 46 and the fact that the ing parties' rights and duties are usually German institution has taken those periods based on the principle of reciprocity. That into account does not entail any increase in means that such conventions are based on a their obligations.' 12 well-defined equilibrium — also as regards the financial consequences. There can be no doubt that the striking of such a balance would be seriously hampered and that the scope for negotiation of Member States and The Court thus confirmed, by implication third countries would be severely restricted but certainly, the point of view adopted by if the Member State in question were to Advocate General Sir Gordon Slynn in his work on the basis that the rights which it Opinion in that case with regard to the inter- stipulates for its own nationals were also to pretation of the concept of 'legislation' under be granted to all other Community citizens. Article l(j) of Regulation No 1408/71. On In saying that I am not thinking solely of the the basis of the judgments in Ortskranken- position of social security conventions but kasse Hamburg and Kaucie, the Advocate also of other bilateral agreements based on a General had expressed the view that form of (financial) equilibrium of the recip- rocal benefits, for example as with double taxation agreements.

'This definition is remarkable for its breadth, including as it does all provisions laid down by law, regulation and administrative action by the Member States and must be taken to 14. I come to the same conclusion with cover all the national measures applicable in regard to the Rönfeldt judgment on which 4 this case.' 1 the Portuguese Government and the Com- mission to some extent base their argu- ments. 16 That case did not concern, either, the question whether a bilateral convention between a Member State and a third country falls within the field of application of Regu- However, none of the judgments in which lation No 1408/71 as legislation. On the con- the Court has adopted this broad interpreta­ trary, the central question was whether it tion concerns a bilateral convention between was compatible with Articles 48(2) and 51 of a Member State and a third country. Thus in the EEC Treaty for workers to lose social Bozzone the question was whether a Belgian security advantages because a convention colonial decree, subsequently confirmed by a between two Member States was rendered national Law, 1 5 was to be regarded as legis­ inoperative by the entry into force of Regu- lation within the meaning of the regulation. lation No 1408/71. 17 The Court answered In van Roosmalen the question was whether the question in the negative on the basis of a Netherlands Law on incapacity for work, its settled case-law in which it was deduced the effect of which extended to regions out­ from a telcological reading of Articles 48 and side Community territory (namely to activi­ 51 of the Treaty that Community law could ties in a developing country), constituted leg­ not bring about a reduction in the benefits islation within the meaning of the regulation. awarded by virtue of the legislation of a sin- Finally in Laborero and Sabato ν OSSOM gle Member State. For those reasons the the Court had to decide inter alia whether a Court decided that, in spite of Article 6 of the regulation previously discussed (in sec- tion 8) account should nevertheless be taken of such conventions between Member States 14 — Judgments in Case 87/76 Borione [1977] ECR 687 at para- graph 10; in Case 150/79 Commission ν Belgium [1980] as were more favourable to workers than the ECR 2621 at paragraph 4; in Case 300/84 van Roosmalen Community rules. ,8 The Court therefore [1986] ECR 3097 at paragraph 28; and in Joined Cases 82 and 103/86 laborero and Sabato [1987] ECR 3401 at stated: paragraph 23. In other judgments too the Court shows that it interprets this definition broadly, particularly in the light of the objectives of Article 51 of the EEC Treaty: see the judgment in Case 109/76 Blottner [1977] ECR 1141 at para graph 9 et seq. 15 I t was precisely because of that Law that the Commission 16 Previously cited in footnote 8. subsequently brought before the Court an action against 17 Cf the Court's reformulation of the question in paragraph Belgium for failure to fulfil its obligations see the judgment 21 of the judgment. in Commission ν Belgium, previously cited 18 Judgment in Ronfeldt, paragraph 28.

15. If, in spite of the arguments set out 17. The idea that, as the ĽVA Hessen con­ above, the Court were to decide that bilateral tends, the principles underlying Article conventions between a Member State and a 234 of the EEC Treaty must apply here too, third country were to be regarded as 'legisla­ in view of the fact in particular that the tion' for the application of Regulation N o Community is not empowered to conclude 1408/71, then the Bundessozialgericht'ssec­ an international social security convention ond question should in my view be answered finds no support in Community legislation in the affirmative. By that question the or case-law. Even though it is for the Mem­ national court is asking whether, if the first ber States to conclude international conven­ question is answered in the affirmative, the tions in a given field, they must, in exercising principle of equal treatment laid down in that power, take account of imperative provi­ sions of Community law. Article 234 which, according to its own wording, is restricted to 19 — Judgment in Rönfeldt, paragraph 27. the rights and obligations resulting from

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conventions concluded by a Member State 'Since the decisive criterion for the applica­ and a third country before the entry into bility of Regulation No 1408/71 is the fact force of the Treaty — and in this case the that the insured person is affiliated to a social convention at issue is one concluded after security scheme in a Member State, it is of the Treaty entered into force in Germany — no importance whether or not he pursued cannot affect the position. his activities exclusively outside the territory of the Member States of the Community.' 21

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on the fact that, in a case such as this, there 20. On the supposition that the first ques- would be no obstacle to free movement of tion referred to the Court, contrary to my workers. If Ms Grana-Novoa had worked in views put forward earlier, requires an answer Spain instead of in Germany, the insurance in the affirmative, the answer to the second periods completed both in Switzerland and question should then be that the exclusion in Spain would have been taken into account clause contained in paragraph 2 of the final on the basis of the convention between Spain protocol to the Convention cannot be and Switzerland (see section 2 above). It was applied. It follows from the principle of the therefore because she had worked in Ger- primacy of Community law that any con- many, in other words because she exercised trary provision of existing national law, her right to freedom of movement, 24 that the including the international Convention, insurance periods which she had completed which on this supposition would form part in Switzerland were lost. of it, cannot be applied. 25

Conclusion

21. Having regard to the foregoing arguments, I suggest that the C o u r t should reply as follows:

(1) A bilateral convention between a M e m b e r State and a third country, even if it has been incorporated b y statute into the domestic legal order of the M e m b e r State concerned, is n o t to be regarded as 'legislation' within the meaning of Article l(j) of Regulation N o 1408/71.