C-28/92

The Community legislation By Article 4(4):

2. Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social 'This Regulation shall not apply to ... special schemes for civil servants and persons "* Original language: English. treated as such.'

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OPINION OF ADVOCATE GENERAL — CASE C-28/92

Article 9(1) provides that: 'Where under the legislation of a Member State reimbursement of contributions is con- ditional upon the person concerned having ceased to be subject to compulsory insur- 'The provisions of the legislation of any ance, this condition shall not be considered Member State which make admission to vol- satisfied as long as the person concerned is untary or optional continued insurance con- subject to compulsory insurance as an ditional upon residence in the territory of employed or self-employed person under the that State shall not apply to persons resident legislation of another Member State.' in the territory of another Member State, provided that at some time in their past working life they were subject to the legisla- tion of the first State as employed or as self- employed persons.' By Article 13(1), persons covered by the Regulation are in principle subject to the leg- islation of a single Member State, and by Special provisions for implementing the leg- Article 13(2)(d), civil servants and persons islation on voluntary contributions to Ger- treated as such are in principle subject to the man insurance schemes are laid down in legislation of the Member State to which the paragraph C.7 of Annex VI to the Regu- administration employing them is subject. lation, which provides in particular that:

order for reference that, from 1973, the Consideration of the question referred plaintiff was also required to pay contribu- tions to the French social security scheme for civil servants, notwithstanding that she remained resident in Germany. In 1990 the plaintiff decided to return to France to take up a position there as a civil servant, and she applied for reimbursement of one half of the total amount of the German contributions. 6. The Sozialgericht suggests that the appli- The defendant refused her application on cable German legislation may be inconsistent 19 September 1990 and rejected her appeal with the principle of equal treatment laid on 11 January 1991. The plaintiff is currently down by Community law, and in particular employed by the French administration as a by Article 3(1) of the Regulation, in that it is civil servant and is resident in France. impossible to interpret the relevant provi- sions of German law in such a way as to place the plaintiff in the same position as a German civil servant. As we have seen, a German civil servant who has made less than 60 months compulsory contributions will, on taking up his position, be able to claim reimbursement of one half of his total con- tributions, a right which is not enjoyed by someone taking up a position as a civil ser- vant in another Member State. The Sozialger- 5. It appears that a person who, having made icht observes that it is not disputed that the the same contributions as the plaintiff, took pension provided under the German scheme up a position as a German rather than as a for civil servants is broadly similar to that French civil servant would be entitled to provided under the French civil service such a reimbursement. He would be so enti- scheme. tled because in those circumstances he would not be permitted to make voluntary contri- butions to the defendant's scheme, being covered instead by the special scheme for German civil servants. Thus, lack of entitle- ment to make voluntary contributions is a condition for reimbursement laid down by the applicable German legislation. The plain- 7. In order to answer the question referred, tiff, in contrast, is entitled to make voluntary two issues must in my view be addressed. contributions, and after a total of 60 months The first issue which arises is whether the of contributions would be entitled to a Ger- right to obtain reimbursement from the man pension at the age of 65. It is to be defendant's scheme must be regarded as an noted that, by Article 9(1) of the Regulation incident of the special scheme for German and paragraph C.7(b) of Annex VI, she con- civil servants. If so, it is clear that the plain- tinues to have the right to make such contri- tiff cannot claim any right to reimbursement, butions even though she now resides in given that civil service schemes are excluded France. It appears however that she would from the scope of the Regulation by Arti- prefer to forgo the right to make voluntary cle 4(4). If however that right is not an inci- contributions, and receive instead reimburse- dent of the civil service scheme, the question ment of the contributions already made. then arises whether the plaintiff is entitled to

(a) Schemes for civil servants 11. In my opinion, therefore, the right to reimbursement of contributions made to the 8. According to the German Government, defendant's scheme enjoyed by some civil the right to reimbursement enjoyed by Ger- servants is not a matter falling outside the man civil servants is to be regarded as an Regulation by virtue of Article 4(4). It is integral part of the special social security accordingly necessary to consider whether scheme for such workers, and as such is the defendant's refusal to reimburse the excluded from the scope of the Regulation plaintiff is contrary to the principle of equal by Article 4(4). The German Government treatment laid down by Article 3(1) of the observes that the right to reimbursement is a Regulation. consequence of the fact that German civil servants are exempt from the requirement to make compulsory contributions to a scheme for ordinary employees and have no right to (b) The right to equal treatment make voluntary contributions. However, it appears that civil servants who have made at least 60 months of contributions to the 12. The German Government observes that defendant's scheme do have the right to con- the plaintiff is placed by its national legisla- tinue to make contributions, and that in tion in the same position as any German those circumstances they do not enjoy any employee, other than a civil servant, who has right to reimbursement. made compulsory contributions to the defendant's scheme and then ceased to be lia- ble to make contributions. Like any such 9. It can be seen therefore that taking up employee the plaintiff has the right to make employment as a German civil servant is not voluntary contributions, and thereby eventu- in itself a sufficient condition for the reim- ally to obtain a pension, but has no right to bursement of contributions, although it is reimbursement of contributions already sufficient where contributions were made for made. At first sight, Article 3(1) of the Regu- less than 60 months. Nor is it a necessary lation would not appear to require anything condition, since it appears that certain other more. As the German Government pointed categories of persons who cannot obtain any out at the hearing, although German civil pension rights from their contributions will servants are treated differently from other enjoy a right to reimbursement, in particular persons who have ceased to be subject to the nationals of non-member States. The compulsory insurance after having made less right to reimbursement is accordingly not a than 60 months of contributions, it is equally specific feature of the civil service scheme. the case that they are in a different position from such persons. Unlike a person in the position of the plaintiff, the German civil 10. In any event, a right to reimbursement servant will not enjoy any right to continue of contributions previously made to a to make voluntary contributions. Thus the

right to reimbursement can be regarded as right to equal treatment as compared with an the counterpart of an inability to make vol- ordinary German employee. As the Com- untary contributions and thereby to accumu- mission points out, Article 3(1) of the Regu- late pension rights under the defendant's lation prohibits not only direct discrimi- scheme. The German Government suggests nation on grounds of nationality, but also moreover that the right to make voluntary indirect discrimination which, by applying contributions is as a general rule more other distinguishing criteria, leads in practice advantageous than the right to reimburse- to the same result: see Case 1/78 Kenny v ment since, on the one hand, only one half of Insurance Officer [1978] ECR 1489, at para- the contributions (corresponding to those graphs 16 to 20 of the judgment.

It is doubtful whether discrimination can be said to arise in such circumstances: compare Case 810/79 Überschär v Bundesversicherungsan- stalt für Angestellte [1980] ECR 2747, at paragraph 17 of the judgment. Moreover even in an individual case it might be difficult 15. Contrary to the view of the Commis- to decide which right is the more advanta- sion, however, it does not seem to me that geous; indeed the two rights may not be that difference in treatment can be regarded strictly comparable, since the former repre- as discrimination contrary to Article 3(1).

It is not 14. In the Commission's view the plaintiff clear why Germany should be required to has the right to be treated in the same way as place civil servants in other Member States in a German civil servant, and not merely a the same position as its own civil servants, or

to place migrants returning to work in their likely to benefit from the right to reimburse- home civil service in a different position ment enjoyed by German civil servants. from migrants returning to work in the pri- vate sector. As we have seen, both categories of returning migrants continue to have the right to make voluntary contributions, and both are in that respect in a different position from German civil servants enjoying a right to reimbursement. It is clear that the princi- ple of equal treatment laid down by Com- munity law does not require the equal treat- ment of cases which differ in a material respect. It seems to me therefore that, for the purposes of Article 3(1), the plaintiff's con- tinuing right to make voluntary contribu- 17. In the present case, the Commission sug- tions constitutes a sufficient reason for refus- gests that migrants returning to work in the ing reimbursement of her previous private sector should be treated differently contributions. from those who, on their return, are subject to a special social security scheme for civil servants, because the two groups enjoy dif- ferent rights under Regulation No 1408/71. Unlike the former, members of the latter group may not be able to benefit from the provisions of Article 46 of the Regulation, which applies to persons who have been sub- ject to the social security legislation of more than one Member State. For the purposes of the award of pension benefits, Article 46(2) requires a period of insurance completed under the legislation of a Member State to be taken into consideration even where the period is insufficient to give rise to an entitle- 16. The position might of course be different ment to benefit under that legislation. Thus a if German law did not provide any worker migrant who completes less than 60 months with the right to make voluntary contribu- insurance contributions in Germany, and tions. If German civil servants were then who then returns to work in the private sec- given a right to reimbursement of their com- tor in another Member State, may be able to pulsory contributions, while other categories of worker enjoyed no such right, a case of have his German contributions taken into indirect discrimination against non-Germans account. In contrast, a migrant who on his might be made out. It is to be noted however return is covered by a special scheme for that in such circumstances nothing would civil servants will enjoy no such right. That turn upon whether the worker in question follows from the fact that the special scheme intended to work as a civil servant in his is excluded from the scope of the Regulation home State. The discrimination in question by Article 4(4), so that the migrant cannot be would be one suffered by all non-Germans regarded as having been subject to the legis- who had made compulsory contributions lation of more than one Member State solely and who, because they were not German, as a result of having previously worked in were members of a group which was less Germany.

21. I would add moreover that such a refusal is consistent also with the other provisions of the Regulation which are mentioned in the order for reference. As we have seen, Article 9(1) prevents Member States from making the right to voluntary continued insurance conditional upon a worker con- 19. It would in my view be an error to sup- tinuing to reside in that State. Article 9(2) pose that a Member State is required to provides for periods of insurance in other ensure that migrant workers returning to Member States to be taken into account, if work as civil servants in other Member necessary, in granting such a right. There is States arc placed in the same position as its however no question that the plaintiff enjoys own civil servants. That might in any event a right to voluntary insurance; indeed, it is be impossible, since the national schemes for precisely that right which she wishes to civil servants may in some cases vary consid- renounce in favour of a right to reimburse- erably. Full equality of treatment could ment. The plaintiff's right to make voluntary therefore only be achieved by Community contributions is guaranteed, furthermore, by provisions which harmonized the social the special provisions for the application of security legislation of the Member States; it German insurance schemes laid down by is clear however that the purpose of the paragraph C.7 of Annex VI to the Regu- Regulation is only to coordinate, and not to lation, cited above in paragraph 3. It can be harmonize, national social security schemes: seen, therefore, that the scheme of the Regu- see Case 41/84 Pinna v Caisse d'allocations lation is to protect the position of migrants familiales de la Savoie [1986] ECR 1, at para- by ensuring that they can acquire or retain graph 20 of the judgment. Furthermore, civil any right to make voluntary contributions

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