C-475/93

JUDGMENT OF 9. 11. 1995 — CASE C-475/93

J U D G M E N T O F T H E COURT 9 November 1995 *

In Case C-475/93,

REFERENCE to the Court under Article 177 of the EC Treaty by the Sozialger- icht Speyer (Germany) for a preliminary ruling in the proceedings pending before that court between

Jean-Louis Thévenon,

Stadt Speyer — Sozialamt

T H E COURT,

composed of: G. C. Rodríguez Iglesias, President, C. Ν . Kakouris and G. Hirsch (Presidents of Chambers), G. F. Mancini, F. Α. Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn, C. Gulmann (Rapporteur), J. L. Murray, P. Jann and H. Ragnemalm, Judges,

Advocate General: G. Cosmas, Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

— the German Government, by Ernst Röder, Ministerialrat in the Federal Minis- try of the Economy, and Bernd Kloke, Regierungsrat in that ministry, acting as Agents,

— the Danish Government, by Jørgen Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

— the Commission of the European Communities, by Maria Patakia, of its Legal Service, and Horstpeter Kreppel, a German civil servant seconded to the Com- mission's Legal Service under the exchange scheme for national civil servants, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the German Government, represented by Bernd Kloke, the Spanish Government, represented by Miguel Bravo-Ferrer Del- gado, the French Government, represented by Claude Chavance, Secretary for Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Anne de Bourgoing, Charge de Mission in that directorate, acting as Agents, the Netherlands Government, represented by J. S. van den Oosterkamp, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent, the United Kingdom, represented by Nicholas Paines, the Council, represented by Stephan Marquardt, and the Commission, represented by Horstpeter Kreppel, at the hearing on 17 May 1995,

after hearing the Opinion of the Advocate General at the sitting on 5 July 1995,

gives the following

Judgment

4 In 1992 Mr Thévenon applied to the Landesversicherungsanstalt for an invalidity pension. This was granted to him on a provisional basis as regards the level of pay- ments, since the extent of the insurance periods completed in France was not yet known.

5 In its capacity as the institution responsible for social assistance, the Sozialamt of the city of Speyer applied for a review of that decision. It argued that the periods completed by Mr Thévenon in France had to be taken into account in calculating his German pension in accordance with the provisions of the general social secu- rity convention concluded between the Federal Republic of Germany and the French Republic on 10 July 1950 (hereinafter 'the Franco-German convention'), since that convention had not been denounced.

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6 The Landesversicherungsanstalt rejected that application on the ground that the Franco-German convention had been replaced as a result of Article 6 of Regu- lation N o 1408/71, which provides that, as regards persons and matters covered by the regulation, it replaces any social security convention binding two or more Member States exclusively, apart from conventions subject to an express reserva- tion.

7 The Landesversicherungsanstalt consequently calculated Mr Thévenon's pension in accordance with the provisions of Regulation N o 1408/71, taking the periods completed in France into account solely for the purposes of completion of the qualifying period and not for the purposes of calculating the amount of the pen- sion.

1 1 In view of those considerations, the Sozialgerichtdecided to stay the proceedings and referred the following question to the Court for a preliminary ruling:

'Is the application of Regulation (EEC) N o 1408/71, which, according to Article 6 thereof, replaces, as regards persons and matters which it covers, conventions binding two Member States exclusively (in this case, the Franco-German Social Insurance Convention of 10 July 1950) with regard to the calculation of pension levels (Article 46(2) of Regulation (EEC) N o 1408/71), excluded by Articles 48(2) and 51 of the EC Treaty even in the case where an insured person has, prior to the date of the entry into force of Regulation (EEC) N o 1408/71 of 14 June 1971, completed periods of insurance in only one of the signatory States and the appli- cation of the undenounced bilateral social insurance convention proves to be more advantageous for the insured person?'

12 It must be observed in limine that, according to Article 9 of the Franco-German convention, French or German employees who have been successively or alter- nately affiliated in the two countries to one or more invalidity insurance schemes are to be credited, for the purposes of calculating the level of invalidity pension, with the insurance periods completed under all such schemes.

1 3 Article 6 of Regulation N o 1408/71, which reproduces in this respect Article 5 of Regulation N o 3 of the Council on social security for migrant workers (Journal

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17 That argument cannot be accepted.

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THÉVENON ν LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

18 It is appropriate, first, briefly to recall the factual and legal circumstances of the Rönfeldt case, relating to the application of the provisions of a social security con- vention between the Kingdom of Denmark and the Federal Republic of Germany, which for the most part were similar to those at issue in this case.

19 Mr Rönfeldt, a German national, had worked initially in Germany from 1941 to 1957 and then in Denmark until 1971, during which periods he had paid contri- butions to the German and Danish social insurance schemes respectively. From 1971 onwards he worked in Germany and was accordingly subject to compulsory insurance there.

20 When he was about to reach the age of 63, Mr Rönfeldt took steps to obtain early retirement, as is permitted under German legislation. However, he was unable to do so because, according to the Federal Insurance Office for Salaried Employees, contributions paid in Denmark could not be taken into account for the calculation of pension rights in Germany until the applicant had reached the general statutory age-limit under Danish law, namely 67 years.

25 However, as argued by the governments and institutions which have submitted observations, that principle cannot apply in factual and legal circumstances such as those obtaining in this case.

26 A worker such as Mr Thévenon, who did not exercise his right to freedom of movement until after the entry into force of Regulation N o 1408/71, that is to say, after the Franco-German convention had already been replaced by the regulation as regards persons and matters covered by it, cannot claim to have suffered the loss of social security advantages which he would have enjoyed under the Franco- German convention.

27 Consequently, the particular circumstances which prompted the Court in Rönfeldt to allow the exception to the rule laid down by Article 6 of Regulation N o 1408/71 are not present in a case such as that which is the subject of the main proceedings.

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THÉVENON ν LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ

28 Accordingly, it should be stated in reply t o the question from the national court that Articles 48(2) a n d 51 of the Treaty must be interpreted as meaning that they do n o t preclude t h e replacement by Regulation N o 1408/71, pursuant to Article 6 thereof, of a convention binding t w o M e m b e r States exclusively where, prior t o . the entry into force of Regulation N o 1408/71, an insured person completed insur­ ance periods in only o n e of t h e signatory States, even where the application of the bilateral social security convention would have placed that insured person in a m o r e favourable position.

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Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regu- lation (EEC) N o 2001/83 of 2 June 1983, pursuant to Article 6 thereof, of a con- vention binding two Member States exclusively where, prior to the entry into force of Regulation N o 1408/71, an insured person completed insurance periods in only one of the signatory States, even where the application of the bilateral social security convention would have placed that insured person in a more favourable position.

Rodriguez Iglesias Kakouris Hirsch

Mancini Schockweiler Moitinho de Almeida

Kapteyn Gulmann Murray