C-305/92

HOORN

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 14 July 1993 *

Mr President, 2. For present purposes it should be recalled Members of the Court, that Article 2(1) thereof provides that peri­ ods of insurance completed between 13 May 1940 and 1 September 1945 by Dutch workers under the German pension insur­ ance scheme are to be taken into account as if they had been completed under the legis­ 1. This case has come before the Court by lation of the Netherlands, if the persons con­ way of a reference for a preliminary ruling cerned ceased working before 1 Septem­ under Article 177 of the EEC Treaty by the ber 1945 and returned to the Netherlands Sozialgericht (Social Court), Münster, in the by 31 December 1945. Under paragraph 2 of context of the proceedings pending before that article, Netherlands nationals not previ­ that court between Mr Hoorn and ously affiliated to the Netherlands social the Landesversicherungsanstalt Westfalen insurance scheme were to be deemed so affil­ (Regional Insurance Office for Westphalia). iated from the date on which they began to work in Germany; that provision, it should however be stated, is to apply only if it results in a more favourable outcome for the person concerned.

4. On those grounds, by an order of 19 June 1992, the German court stayed the pro­ ceedings in order to seek a ruling from the Court of Justice on the validity of the Agree­ ment, to the extent to which it did not per­ He pointed out that following the reform of mit the persons referred to therein to claim social security legislation carried out in the rights against the German invalidity and old- Netherlands by means of a series of laws age insurance scheme for workers. which entered into force between 1957 and 1967 the rights acquired under the ear­ lier system by workers to whom an old-age pension had not yet been granted were com­ muted by the payment of a pro tanto sum in redemption of the insurance periods covered by the previous system. The application thereof meant that Mr Hoorn received an amount significantly less than the income 5. That having been said, it should be stated which he would have been granted under the straight away that to the extent to which the German invalidity and old-age insurance question raised by the Sozialgericht, Mün­ scheme: for that reason Complementary ster, turns on the validity and interpretation Agreement No 4 is alleged not to apply to of Complementary Agreement No 4 to the the present case, inasmuch as under the res­ Convention between Germany and the ervation mentioned in Article 2(2), the ren­ Netherlands, it falls outside the competence voi to Netherlands legislation is effective, in of the Court. In fact, it is for the national the case of persons like himself not affiliated court to interpret and establish whether, to the social security scheme before should the legal fiction laid down in Art­ May 1940, only where that would result in a icle 2(2) of the Agreement not result in a more favourable outcome for such persons. more favourable outcome for those con-

It may perhaps also be observed that the submission of the question to the Court in actual fact presupposes that the Sozialgericht, Münster, has resolved the interpretative problem raised by the aforementioned Art­ icle 2(2) by rejecting the arguments urged by Article 3 enshrines as a fundamental princi­ Mr Hoorn. Otherwise it would indeed be ple the Community system laid down in difficult to understand the interest in making Article 48 of the Treaty, that is to say the the reference for a preliminary ruling. prohibition of discrimination based on nationality. In addition to stipulating that the 'persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obliga­ tions and enjoy the same benefits under the 6. For those reasons, therefore, it seems that legislation of any Member State as the the question referred to the Court must be nationals of that State', it goes on to make an construed as seeking to ascertain whether exception for the 'special provisions' laid Articles 48 and 51 of the EEC Treaty and, down in the Regulation itself. Exceptions to the general scope of the principle are there­ fore permitted on account of the specific 2 — See on this point, amongst others, judgments in Case 38/77 nature of certain situations. Those 'special Enka v Inspecteur der invoerrechten en Accijnzen [1977] provisions' certainly include Article 7 which, ECR 2203; Case 296/84 Sinatra v FNROM [1986] ECR 1047; Case 240/87 Deville v Administration des Impôts together with Articles 6 and 8, governs the [1988] ECR 3513; and Case C-227/89 Ronfeldt v Bundesver- sicherungsanstalt fur Angestellte [1991] ECR I-323. relationship between the Regulation and

10. Nor, it seems to me, is it appropriate in the present case to invoke Article 8 of the Regulation which authorizes the Member States, as need arises, to conclude conven­ 8. Thus is resolved in advance any conflict tions with each other based on the principles between the provisions of the Regulation and in the spirit of the Regulation. It is evi­ and those of conventions already concluded dent from a reading of Articles 6, 7 and 8, between the Member States: accordingly, no taken together, that Article 8 concerns con­ problem can arise as to the compatibility ventions which may be concluded between with the Regulation of the specific and pos­ the Member States after the entry into force sibly different provisions contained in those of Regulation No 1408/71 and the applica­ conventions whose applicability is safe­ tion of the provisions thereof, and does not guarded by Article 7(2). lay down criteria in the light of which the application of the agreements unaffected by virtue of Article 7 may be assessed. 3 — It should, however, be pointed out in that connection that the Court has made it clear that Articles 48(2) and 51 of the Treaty must be interpreted as precluding the loss by a workerof social security advantages as a result of the inap­ plicability of conventions concluded between two or more 4 — See the judgments in Case 79/76 Fossi v Bundesknappschaft Member States and incorporated into their national law: see [1977] ECR 667, Case 9/78 Directeur Régional de la Sécurité judgment in Rönfeldt v Bimdesversicherungsanstalt für An- Sociale de Nancy v Gillard [1978] ECR 1661, and gestellte, cited above. Case 207/78 Ministère Public v Even [1979] ECR 2019.

On that premise, therefore, and on the basis No 1408/71 and the consequent loss of ben­ that that interpretation is adopted, it does efits which would have accrued to the appli­ not seem that Article 2 of the Complemen­ cant as a result of the application of the other tary Agreement is contrary to the 'principles provisions of the Regulation itself is compat­ and ... spirit of [the] Regulation'. Even ible with Articles 48(2) and 51 of the Treaty. though the terms in which it is couched are in fact based essentially on the principles of the aggregation of insurance periods and the 'exportability' of social security benefits, it also acknowledges the principle of the trans­ fer of entitlement to benefit. In fact, on the basis of Article 48, if the total duration of the insurance periods completed under the legis­ lation of a Member State is less than one year and, for that reason, they do not give rise under that legislation to any right to social Now, even having regard to the absolutely security benefits, such periods are to be special nature of the situation which the con­ taken into consideration by the competent tested agreement seeks to provide for, it does institutions of each of the other Member not appear to conflict with the objective of States concerned in order to determine the contributing to the greatest possible degree rights of the worker, and in order to calcu­ of freedom of movement for workers. If late the actual amount of the benefit; in such indeed in order to attain that objective, Art­ a situation no pro rata apportionment of the icle 51 specifically requires social security benefits themselves is possible. rights acquired in the different Member States to be observed and taken into account in the calculation of the total period of insur­ ance, the provisions of the agreement which take into consideration insurance periods completed under the social security scheme of a State other than the State of origin of the person concerned and merely direct the lat­ ter to pay the relevant benefits do not consti­ If therefore the principle of the transfer of tute an impediment to the attainment of the rights to benefit is, within the limits out­ objective pursued by that article. On the lined, accepted by Regulation No 1408/71, it other hand the different treatment accorded seems difficult to aver that provisions to German forced labourers, as also to Dutch inspired by it are contrary to the principles workers and those who stayed in Germany and the spirit of the Regulation. at the end of the conflict, may be objectively justified inasmuch as in that case affiliation to the German social security scheme did not have that provisional and exceptional charac­ ter to be found in the cases governed by the Agreement. The requirement of equal treat­ ment laid down in Article 48(2) of the Treaty — and which in the field of freedom of 11. Finally, it must be examined whether the movement for workers gives effect to the maintenance in force of Complementary general principle of non-discrimination Agreement No 4 alongside Regulation enshrined in Article 7 — cannot evidently be

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