C-315/94

1. The question on which the Court has 3. At the end of the military service the been asked to give a preliminary ruling in the employer must notify the Federal Ministry present case was submitted by the Arbeits­ of Defence of the amount of the contribu­ gericht Bielefeld (Labour Court, Bielefeld) tions paid, in order to obtain reimbursement. and seeks to ascertain whether a national of It appears from the documents in the case one Member State, employed in another that that provision also applies mutatis Member State, is entitled to have payment of mutandis to persons performing civilian ser­ the employer's contributions to a supple­ vice in lieu of military service, save that in mentary old-age and survivors' pension their case the sums advanced by the employ­ scheme based on a collective agreement con­ ers in respect of contributions are reim­ tinued during the period when he returned bursed by the Ministry for Women and to his country of origin to perform his mili­ Youth. tary service there, in view of the fact that the legislation of the State of employment con­ tains a provision to that effect applicable to workers performing their military service in that State. 4. Under the German Law on military ser­ vice, all German citizens aged 18 years or over must perform military service, whether or not they are resident in Germany. 2. In the Federal Republic of Germany, Paragraph 1 of the Arbeitsplatzschutzgesetz (Law on employment protection on call-up for military service) provides, in so far as is relevant here, that the employment relation­ 5. The plaintiff in the main proceedings, a ship is to be suspended during the whole doctor of Belgian nationality, born in 1958, period of compulsory military service. Para­ has been employed in the municipal hospital graph 14a provides that an existing insurance in Bielefeld since 1984. He is insured with policy in the supplementary old-age and sur­ the Arzteversorgung, an insurance institu­ vivors' pension scheme for employees in the tion for members of the medical profession, public service is not affected by call-up for in Westfalen-Lippe and is also entitled, under military service and that the employer must the collective agreement applicable to continue to pay the contributions (employ­ employees of the Federal Republic and the er's and employee's contributions) to that Länder and to employees of municipal scheme at the level at which they would have authorities and undertakings, to subscribe to been payable if the employment relationship the supplementary old-age and survivors' had not been suspended. pension scheme of a specific pension fund, namely the Vcrsorgungsanstalt des Bundes und der Länder (Pension Institution of the * Original language: Spanish. Federal Republic and the Länder) in

'Must Article 7(1) and (2) of Regulation (EEC) N o 1612/68 of the Council of 7. In August 1994, the defendant applied to 15 October 1968 on freedom of movement the competent regional defence administra- for workers within the Community be inter- tion, in accordance with Paragraph 14a of the preted as meaning that a worker who is a Arbeitsplatzschutzgesetz, for reimbursement national of one Member State and is in respect of the plaintiff's contributions to employed in the territory of another Mem- the supplementary old-age and survivors' ber State is entitled to have payment of con- pension scheme for the period covered by tributions (employer's and employee's con- his military service, amounting to DM 6 121, tributions) to the supplementary old-age and in case it, the defendant, should have to pay survivors' pension scheme for workers in the them itself. In October of that year, the public service continued, at the same level as defence administration refused the applica- would have been payable if the employment tion on the ground that the Arbeitsplatzs- relationship had not been suspended because chutzgesetz applies only to employees who of his call-up for military service, where are obliged under German law to perform nationals of that State employed in the pub- their military service in the German armed lic service are so entitled by law when per- forces, which the plaintiff was not. forming military service in that State?'

8. The plaintiff in the main proceedings 10. Regulation (EEC) N o 1612/68 of the seeks a declaration that his employer is Council of 15 October 1968 on freedom required to pay contributions to the pension of movement for workers within the

(ii) set up a scheme administered by the 11. Regulation (EEC) No 1408/71 of the same institution as that which adminis­ Council of 14 June 1971 on the application ters the schemes set up by the laws and of social security schemes to employed per­ sons, to self-employed persons and to mem­ bers of their families moving within the 2 — OJ 1983 L 230. p. 6. Community, as amended and updated by 3 — In the version contained in Council Regulation (EEC) N o Council Regulation (EEC) No 2001/83 of 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1). In its obser­ vations, the Commission quotes a version of this provision as amended by the Act of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties (OJ, English Special Edition 1972 (27 March — L 73) IX, 1 — OJ, English Special Edition 1968 (II). p. 475. Social Policy, p. 100.

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regulations referred to in the preceding Article 13, which sets out the general rules subparagraph, for determining the legislation applicable, provides that:

the limitation on the term may at any time be lifted by a declaration of the Member State concerned specifying the schemes of '1. Subject to Article 14c, persons to whom such a kind to which this Regulation applies. this Regulation applies shall be subject to the Such a declaration shall be notified and pub- legislation of a single Member State only. lished in accordance with the provisions of That legislation shall be determined in Article 97. accordance with the provisions of this Title.

12. Observations have been submitted in these proceedings by the defendant, the Ger- man Government, the Swedish Government (...)'. and the Commission.

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15. It adds that it is necessary to determine in every case whether Regulation No

17. The German Government states that the 4 — Case 15/69 Sudmilchν Ughola [1969] ECR 363. Arbeitsplatzschutzgesetz was adopted in

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order to fulfil the obligation of assistance remuneration, since it is not payment which and protection incumbent on the State as the employee receives from the employer as employer during the period when its nation- a result of the employment relationship and als are performing their military service, an the obligation to pay the contributions rests obligation based on the relationship between ultimately with the Federal Ministry of the Federal Republic of Germany and its sol- Defence, and, second, that the case-law of diers arising from the fact that they are part the Court, embodied in the judgment in of its armed forces. Anyone called up for Ugliola, 5 is not applicable, since the employ- military service must be insured during that er's obligation is closely bound up with that period and the relevant contributions must of the Federal Ministry of Defence. If these be paid by the Federal authorities, either two obligations could be separated, that is to directly, or indirectly by reimbursing the say if the employer's obligation was not person concerned, for example in the case of accompanied by the right to reimbursement, self-employed persons. That applies to the it would lead to indirect discrimination contributions in the present case, which are against workers who are nationals of other initially advanced by the employer but ulti- Member States, since employers would be mately charged to the Federal authorities. reluctant to recruit foreigners who had not For that reason, only persons required under yet performed their military service in their German law to perform military service country of origin. enjoy those rights.

defence, while others do indeed concern judgment in Ugliola, it contends, first, that questions of employment, these being the a law which protects a worker from any dis­ only ones to fall within the scope of Regu­ advantages occasioned by his performance of lation No 1612/68. Consequently, the above- military service falls within the context of mentioned legal obligation cannot be conditions of employment. And, second, in regarded as a 'social advantage' either, within the light of the Court's ruling that for the the meaning of Article 7(2) of that regu­ purposes of Article 7(2) of Regulation No lation, in the light of the Court's ruling that 1612/68 social advantages should be inter­ a benefit cannot be considered as a social preted as meaning all advantages which are advantage if the main reason for it is the ser­ generally granted to national workers prima­ vices which those in receipt of the benefit rily because of their objective status as work­ have rendered in wartime to their own coun­ ers or by virtue of the mere fact of their res­ try and the hardships suffered. 7 idence on the national territory, it concludes that the advantage granted to German work­ ers, namely reimbursement of the employer by the Federal authorities in respect of con­ tributions paid when they were on military service, does not fulfil that requirement, since the provision at issue is essentially 21. The Commission takes the view that linked to the performance of military service Regulation N o 1408/71 does not apply in the and not to their status as workers or resi­ present case, which is concerned with sup­ dents. plementary old-age and survivors' insurance to which the worker is entitled under a col­ lective agreement and, under Article l(j), provisions of industrial agreements are not regarded as 'legislation' for the purposes of the regulation. There is therefore, in its opin­ ion, no need to consider either the possible implications of applying Article 13(2)(e) or whether both regulations may be applicable in parallel.

the same circumstances, since, otherwise, it 25. In order to answer the question submit- would lead to discrimination on grounds of ted by the national court, I shall consider nationality which, in the Commission's view, first whether Regulation No 1408/71 is could not be justified by the need to preserve applicable to a worker in the situation of the the integrity of the rules. plaintiff in the main proceedings and then whether the right of German workers employed in the public service to have con- tributions to a supplementary old-age and survivors' pension scheme based on a collec- tive agreement advanced by their employer on behalf of the Federal authorities when they are on military service falls within the scope of Article 7(1) or (2) of Regulation N o 1612/68, in which case it would be applicable to workers of other Member States employed in Germany on the same condi- tions as to German citizens. 24. Lastly, the Commission points out that certain aspects of the present case do never- theless raise the question whether Regulation N o 1612/68 may be applicable, for example the fact that the employer is required to advance contributions only when the employment relationship is suspended The applicability of Regulation No 1408/71 because the employee is on military service, the fact that such contributions are ulti- mately chargeable to the Federal Ministry of Defence or the Ministry for Women and Youth, depending on whether the German worker is performing military or civilian ser- vice, that is, to the institution benefiting directly from the services of those who have 26. Under Article 13 of Regulation N o been called up, the fact that matters directly 1408/71, the persons to whom the regulation connected with the performance of military applies are to be subject to the legislation of service are outside the scope of Community a single Member State only. Article 13(2)(e) law and the fact that if the provision at issue provides that a person called up for service were to apply to workers performing their in the armed forces, or for civilian service, of military service in another Member State, it a Member State must be subject to the legis- would impose a heavy burden on employers, lation of that State. However, account must who would be unable to recover the sums also be taken of the definition of the term they had paid. In conclusion, the Commis- 'legislation' in Article l(j) of the regulation, sion claims that, as Community law now as meaning, in respect of each Member State, stands, unless bilateral agreements on the statutes, regulations and other provisions and reimbursement of contributions under an all other implementing measures, present or insurance scheme based on a collective agree- future, relating to the branches and schemes ment exist or are concluded, the question of social security covered by Article 4(1) and submitted by the national court must be (2) — including old-age and survivor's bene- answered in the negative. fits — or those special non-contributory

27. It follows that Mr de Vos was subject to Belgian social security legislation during the 29. This is not the first time the Court has period when he was performing his military been asked to interpret Article 7(1) in con­ service in Belgium, but only to the branches nection with the provisions of the Arbeits­ and schemes governed by law or regulation. platzschutzgesetz. In its judgment in Ugliola, As the supplementary old-age and survivors' 9 pension scheme to which he was affiliated in it answered a question submitted by Germany is based on a collective agreement, another German court, which sought to it cannot be regarded as 'legislation' within ascertain whether the article must be inter­ the meaning of Regulation No 1408/71. preted to mean that a worker who is a Consequently, I concur with the view national of a Member State and who is expressed by the Commission in its written employed in another Member State, is enti­ observations, that Mr de Vos's relations with tled to have the period of his military service that scheme are unaffected by the provisions in his country of origin taken into account in of Regulation No 1408/71, as it was not the calculation of the duration of his service applicable and the fact that he was called up with his employer, in accordance with the for military service in his country of origin legislation of the country of employment, did not mean that the insurance was auto­ matically suspended, as schemes governed by law or regulation would have been. 9 — Cited in note 4 above.

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31. In the present case, the Court has to 33. Thus in the present case, unlike the Ugli- decide whether another provision of the ola case where the same law required the same German law, which states that the employer to take account of a period of

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military service in calculating an employee's is a social advantage within the meaning of service with that employer, there cannot be Article 7(2) of Regulation No 1612/68. said to be any discrimination between Ger­ man nationals and nationals of other Mem­ ber States, since the employer pays no con­ tributions for either. His role is merely to cooperate with the Federal authorities by advancing on their behalf, for technical and administrative reasons, both the employer's 36. The Court has defined the concept of contributions which he is required to pay social advantage for the purposes of that when the contract of employment is opera­ provision. According to its case-law, '"social tive and the employee's contributions which advantages" should be interpreted as mean­ the employee would be required to pay if the ing all advantages which, whether or not employment contract had not been sus­ linked to a contract of employment, are gen­ pended. erally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Com­ munity'. 1 0

39. I consider that, unlike those examples, the German workers' right at issue in the 38. Over the years, the Court has held that present case is not granted to them because various benefits must be regarded as social of their objective status as workers or by vir­ advantages for the purposes of Article 7(2) of tue of the mere fact of their residence on the Regulation No 1612/68 and must conse­ national territory but is granted by the Ger­ quently be granted to workers who are man Government, as it explains in its written nationals of other Member States or to mem­ observations, in partial compensation for the bers of their families on the same conditions consequences of their obligation to perform as to nationals of that State. They include, military or civilian service. for example, interest-free loans granted on childbirth by a credit institution incorpo­ rated under public law to families with a low income with a view to stimulating the birth rate, 1 1a social benefit guaranteeing a mini­ mum income for old persons, 1 2 a social ben­ efit guaranteeing a minimum means of sub­ sistence in a general manner to any person who does not have adequate means and is unable to obtain them, 1 3 cash benefits for 40. The Court has already held, in Even, 19 young job-seekers, 1 4 the possibility for a that the right granted under the legislation of migrant worker of obtaining permission for a Member State to nationals of that State his unmarried companion to reside with him who have served in the allied forces between where that companion is not a national of 1940 and 1945 and are in receipt of a war ser­ the host Member State, 15 assistance granted vice invalidity pension granted by an allied for maintenance and training with a view to nation for incapacity for work attributable to the pursuit of university studies leading to a an act of war, entitling them to draw an professional qualification, 16 birth grants and employed person's retirement pension dur­ ing the period of 5 years preceding the nor­ mal pension age without the reduction of 5% per year of early retirement, cannot be 11 — Case 65/81 Reina ν Landeskreditbank Baden-Württemberg regarded as a social advantage within the [1982] ECR 33. meaning of Article 7(2) of Regulation 12 — Case 261/83 Castelli ν ONPTS [1984] ECR 3199 and Case 157/84 Frascogna ν Gaisse des Dépôts et Consignations N o 1612/68. The benefit in that case was [1985] ECR 1739. 13 — Case 249/83 Hoeckx ν Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout [1985] ECR 973 and Case 122/84 Scrivner ν Centre Public d'Aide Sociale de Chastre [1985] ECR 1027. 17 — Case C-111/91 Commission ν Luxembourg [1993] ECR 14 — Case 94/84 ONEM ν Deak [1985] ECR 1873. I-817. 15 — Case 59/85 Netherlands ν Reed [1986] ECR 1283. 18 — Schmid, cited in note 10 above. 16 — Case 39/86 Lair ν Universität Hannover [1988] ECR 3161. 19 — Cited in note 7 above.

41. As Community law now stands, the question whether or not a person is under an obligation to perform military service is entirely a matter of nationality and as such is outside the scope of Community law. Mem­ ber States' practice in this connection differs as between those that have an exclusively professional army, in which case none of their nationals are subject to that obligation, and those whose army consists mainly of conscripts, in which case there is a general 43. I therefore take the view that when, as in obligation incumbent on all their nationals to the present case, the legislation of a Member contribute to the defence of their country. A State grants a recompense to its nationals for Member State which imposes that general the period during which they are on military obligation on its nationals and in return, for service, whereby the employer continues that reason alone, pays them at a certain rate during that period to pay the employer's and for their services, for example, or allows the employee's contributions to a supple­ them to travel on public transport at conces­ mentary old-age and survivors' pension sionary rates or, as in Germany, decides to scheme based on a collective agreement, for assume responsibility for paying the employ­ which he will subsequently be reimbursed er's and the employee's contributions to a out of the State budget, that recompense supplementary old-age and survivors' pen­ does not constitute either a condition of sion scheme based on a collective agreement, work or employment or a social advantage is not granting them a social advantage for the employee during that period; conse­ within the meaning of Article 7(2) of Regu­ quently, Community law, as it now stands, lation N o 1612/68, since the fact that the does not require that Member State to grant persons concerned may in some cases have that recompense on the same conditions to the objective status of workers is less impor­ an employee who is a national of another tant than the fact that they are performing a Member State and who performs his military compulsory personal service for that State. service in the State of which he is a national.