C-297/92

OPINION OF MR JACOBS — CASE C-297/92

OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 June 1993 *

My Lords, the relevant compulsory insurance required for admission to voluntary insurance in the State in which he has requested admission to voluntary continued insurance?'

3. Mrs Bagheri is an Italian national who * Original language: English. worked in Germany from 23 August 1965 to

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BAGHERI

4 April 1975, during which time compulsory Under the applicable legislation, the right contributions under German social security was conditional upon the person concerned legislation were paid on her behalf. She then having the status of an insured person under returned to Italy. On 17 December 1979 she German law. The Court stated, at paragraphs applied to the appellant social security insti- 18 to 20 of the judgment: tution (hereafter 'the INPS'), claiming the right to make voluntary insurance contribu- tions in Italy. She wished to make such con- tributions in order that she might meet the requirements for the award of an invalidity pension in Italy. It appears that at no time 'From the order making the reference it has Mrs Bagheri been employed in Italy or appears that ... in order to have the status of been affiliated to any Italian social security insured person it is necessary to have paid at scheme. least one contribution as a worker to a Ger- man social insurance institution.

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OPINION OF MR JACOBS - CASE C-297/92

As Advocate General Reischl explained in 'It should be noted at the outset that national his Opinion, at p. 248: legislation making the right voluntarily to make retroactive payments of pension- insurance contributions subject to certain conditions falls within the concept of contin- ued insurance within the meaning of Article 9 of Regulation No 1408/71.

'The latter provision [i. e. Article 9(2)] is merely a provision on the aggregation of insurance periods, that is to say, its effect is to assimilate foreign insurance periods in so far as benefits depend on the duration of the As regards Article 9(2) of Regulation No period of insurance, with the result that 1408/71, the object of that provision is to recourse may be had to it in order to decide, guarantee that periods of insurance com- for example, whether there was a minimum pleted in different Member States are treated period of insurance of 60 months in toto. But as equivalent so that the persons concerned the purpose of the provision is not to create can satisfy the condition of a minimum the status of insured person; rather, it pre- length of insurance periods where national supposes such a status. ... As the Federal legislation makes admission to a voluntary or Insurance Office for Clerical Staff rightly optional insurance scheme subject to such a points out, that question is in principle unaf- condition. fected by the Community law on social security. Rather, the creation of the status of insured person is a matter for national law and an essential condition precedent for the On the other hand, it is clear from the word- application of Regulation N o 1408/71.' ing of Article 9(2) that it does not govern the other conditions to which the legislation of any Member State may make subject the acquisition of a right, such as the right to contribute to a national scheme of voluntary or optional continued insurance.'

the advantages in the field of social security tions on the freedom of movement of work- guaranteed to them by the laws of an indi- ers' within the Community, by which the vidual Member State. However, as the Court Corte Suprema appears to mean the estab- held in its judgments of 24 April 1980 in lishment of the internal market envisaged by Case 110/79 Coonan v Insurance Officer Article 8a of the Treaty. In the second place, [1980] ECR 1445, paragraph 12 and of the Corte Suprema refers to what it describes 24 September 1987 in Case 43/86 Sonale as 'principles of the EEC Treaty relating to Verzekeringsbank v de Rijke [1987] ECR the free movement of workers within the 3611, paragraph 12, it is for the legislature of countries of the Community and hence to each Member State to lay down the condi- their social security' which are, it suggests, tions creating the right or the obligation to 'designed to safeguard (and treat as equiva- become affiliated to a social security scheme lent) situations which have already been or to a particular branch under such a acquired in the territory of the Community'. scheme, provided always that in this connec- Finally, the Corte Suprema suggests that an tion there is no discrimination between unduly restrictive interpretation of Article nationals of the host State and nationals of 9(2) might place workers who move within other Member States. ...'. the Community at a disadvantage as com- pared with those who have worked in non- member States. 7. It can be seen, therefore, that in its case- law the Court has repeatedly affirmed the principle that it is for the Member State con- cerned to lay down the conditions for affili- 9. As the Commission convincingly shows ation to the social security schemes of that in its written observations, none of the argu- State and that such conditions are not ments advanced by the Corte Suprema pro- affected by provisions such as Article 9(2) of vides a reason for modifying the Court's the Regulation, which are concerned exclus- existing interpretation of Article 9(2). In ively with the aggregation of periods of what follows I shall however briefly consider insurance completed in different Member those arguments. States for the purpose of satisfying condi- tions relating to the minimum length of insurance periods. It follows that Article 9(2) cannot prevent a Member State from making (a) The completion of the internal market admission to voluntary or optional contin- ued insurance conditional upon prior affilia- tion to a social security scheme in that State.

As the Commission points out, three Coun- cil Directives have in fact been adopted which extend the right to reside in another Member State to certain categories of per- 12. That conclusion is confirmed by an sons — namely persons of independent examination of Articles 100a and 100b of the means, pensioners and students — some of Treaty, which were inserted into the EEC whom did not previously benefit directly Treaty by the Single European Act to facili- from the right to free movement under the tate the achievement of the objectives of Treaty. 1 The Commission has also made a Article 8a. It must first of all be noted that proposal for a Council Regulation amending fiscal provisions, those relating to the free Regulation No 1408/71, which if adopted by movement of persons and those relating to the Council would in principle extend the the rights and interests of employed persons scope of the Regulation to include all insured are all excluded from the scope of Article persons; at present, of course, the Regulation 100a: see Article 100a(2). As regards provi- covers employed and self-employed persons sions which do fall within the scope of Arti- cle 100a, the first subparagraph of Article 100b(l) provides that during 1992 the Commission and each Member State shall 1 — Sec Council Directive 90/364/EEC on the right of residence, draw up an inventory of provisions which Council Directive 90/365/EEC on the right of residence for employees and self-cmploycd persons who have ceased their have not yet been harmonized pursuant to occupational activity, and Council Directive 90/366/EEC on that Article. By the second subparagraph of the right of residence for students (OJ 1990 L 180, p. 26, p. 28 and p. 30 respectively). It is to be noted that the last Article 100b(l): Directive was annulled by the Court in Case C-295/90 Par- liament v Coimai [1992] ECR I-4193, on the ground that the wrong Treaty basis had been employed (Article 235 rather than Article 7). The Court however preserved the effects of the Directive pending its re-enactment using the correct Treaty basis. 2 — For the text of that proposal see OJ 1992 C 46, p. 1.

'The Council, acting in accordance with the 13. It can be seen therefore that the passing provisions of Article 100a, may decide that of the date set for the completion of the the provisions in force in a Member State internal market cannot in itself have the must be recognized as being equivalent to effect of requiring Member States to recog- those applied by another Member State.' nize affiliation to a social security scheme of another Member State as equivalent to affili- ation to its own social security scheme, even if such mutual recognition were regarded as necessary for the establishment of the inter- nal market. It follows that the Court's exist- ing case-law on Article 9(2) of the Regu- lation is not immediately affected by the passing of that date. Thus, in the absence of legislation providing for such mutual recog- nition, each Member State retains the right to lay down the conditions required for affilia- Thus, even in the case of provisions which tion to its own social security schemes. fall within the scope of Article 100a — the Article of the Treaty which is dedicated to the specific purpose of securing the comple- tion of the internal market in accordance with Article 8a — further action of the Council is still required before the provi- sions of Member States must be recognized (b) The free movement of workers as equivalent. In the case of provisions, such as the ones presently in issue, which fall out- side the scope of Article 100a, that conclu- sion must, it seems to me, follow a fortiori. Such a conclusion would moreover be con- sistent with the Declaration on Article 8a of the Treaty annexed to the Final Act adopting the Single European Act, which states that setting the date of 31 December 1992 'does 14. Nor, it seems to me, can the Court's not create an automatic legal effect'. While existing interpretation of Article 9(2) be the status and effect of the declaration have affected by any considerations based on the yet to be clarified, 3it is clear that, to the principles of the Treaty relating to the free extent that it can be taken into account in movement of workers. As we saw above in interpreting Article 8a, it is incompatible paragraph 6, the Court has emphasized that with the view that setting that date had the its existing interpretation is fully consistent effect of transforming the scope of the social with both Article 48 and Article 51 of the security regulations. Treaty. There is of course no doubt that the provisions of the Regulation must be inter- preted in accordance with the aim of Articles 48 and 51, which is to ensure that a worker 3 — On the status of that declaration and on the possible legal effects of the time-limit set in Article 8a, see H. G. Schermers does not, as a result of exercising his right of 'The effect of the date 31 December 1992' in Common Market Law Review 28 (1991) pp. 275 289. Sec also A. G. free movement under the Treaty, lose advan- Toth 'The legal status of the declarations annexed to the Sin- gle European Act' in Common Market Law Review tages in the field of social security guaran- 23 (1986) pp. 803 812. teed to him under the laws of an individual

16. Finally, the Corte Suprema suggests that the Court's existing interpretation of Article 9(2) may have the effect that workers who have exercised their right to free movement within the Community are treated less favourably, under national legislation, than those who have worked in a non-member State. It appears that, under Italian legisla- tion, special provision is made for the pay- ment of insurance contributions on behalf of such workers in order to protect their rights 15. In the present case, it is clear that Mrs to Italian social security benefits. Commu- Bagheri did not lose, as a result of working nity law does not of course preclude a Mem- in Germany, any right to make voluntary ber State from conferring such advantages on insurance contributions which she enjoyed persons who go to work in a non-member under Italian law. It is true that if she had State, and such provisions may be thought worked in Italy, rather than in Germany, she necessary in order to safeguard the position would have had the opportunity of acquiring of those working in a third country which such a right. On the other hand, however, has not concluded any bilateral agreement she would not have acquired the rights she with the Member State in question. It is now possesses as a result of her affiliation to equally the case, however, that Community a German social security scheme. A potential law does not require similar advantages to be obstacle to the free movement of workers conferred on migrant workers who go to would of course arise if, as a result of having another Member State. The position of such worked in more than one Member State, a workers is in any event protected by the worker were unable to satisfy the conditions provisions of the Regulation, which provides for entitlement to social security benefits in for equal treatment with the host Member any of the Member States in which he had State's own nationals as well as for the aggre- worked. That obstacle is however removed gation of insurance periods completed in dif- by the provisions of the Regulation, includ- ferent Member States.

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