C-442/97
ECLI:EU:C:1999:247
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VAN COILE V RIJKSDIENST VOOR PENSIOENEN
OPINION OF ADVOCATE GENERAL ALBER delivered on 18 May 1999 *
A — Introduction 3. The relevant Belgian provision 2 contains a presumption, called the 'war years pre- sumption' whereby, if evidence is provided of normal and principal employment and of payment of the relevant social security contributions for at least one year between 1938 and 1945, contributions will be 1. This reference for a preliminary ruling deemed to have been paid in respect of from the Arbeidsrechtbank Brugge, Afdel- such employment for the remainder of that ing Ostende (Labour Court, Bruges, Ostend period. This presumption is rebutted in Division), in connection with the calcula- respect of periods of employment for which tion of a Belgian employed person's pen- sion, concerns the interpretation of Arti- cle 46b(2) in conjunction with Arti- cle 46(l)(a)(i) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Commu- nity. 1
2 — This is the fifth paragraph of Article 32b of the Royal Decree of 21 December 1967, as amended by the Royal Decree of 5 April 1976, Moniteur belge of 8 April 1976 (although Article 32b was repealed by Article 50 of the Royal Decree of 4 December 1990, but remained applicable to, pensions which — as in the present case — actually 2. The plaintiff in the main proceedings became payable before 1 June 1991, which reads, in the version applicable to the present dispute, as follows: (hereinafter 'the plaintiff') is drawing a 'De werknemer welke in die hoedanigheid een arbeid heeft uitgeoefend tijdens de periode begrepen tussen 1 januari German pension for periods of employment 1938 en 1 januari 1945 en waarvoor een storting werd between 1938 and 1945. Following verricht waarvan het bedrag het in het tweede lid genoemd jaarbedrag bereikt, wordt geacht voldoende stortingen acknowledgment of the German pension verricht te hebben, opdat een gewoonlijke en hoofdzakelijke tewerkstelling bewezen zou zijn gedurende de ganse periode by the German institution, the Belgian begrepen tussen de datum waarop de bewezen tewerks- institution scheme recalculated his Belgian telling een einde nam en 1 januari 1946.' 'An employed person who was in employment during the pension. period between 1 January 1938 and 1 January 1945 in respect of which a contribution was paid of an amount equivalent to the annual amount referred to in the second paragraph shall be deemed to have paid sufficient contribu- tions to establish that he was normally and principally * Original language: German. employed throughout the period between the date on which 1 — Consolidated version of Council Regulation (EEC) the period of employment established came to an end and No 1408/71 of 14 June 1971 (OJ 1992 C 325, p. 1). 1 January 1946.'
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the person concerned can claim a pension, from the end of March 1943 to the under a foreign pension scheme for exam- beginning of May 1945. He had worked ple. 3 The question raised in the reference for Siemens, initially in Nuremberg and for a preliminary ruling is whether this afterwards in the Dresden area. regulation constitutes a provision on reduc- tion within the meaning of Regulation No 1408/71. 6. By a provisional decision of 6 March 1989, the Belgian institution awarded him a pension calculated on the basis of a fraction of 42/45. By decision of 29 Janu- ary 1990 the German institution, the Land- 4. The case was in the context of the es ver sicher ungsanstalt Rheinprovinz following dispute: the plaintiff is seeking (Regional Insurance Office for Rhine Pro- to have the years 1943 and 1944 taken into vince), acknowledged liability for payment account pro rata in the determination of of benefit for a period of employment of the 'national' Belgian pension. The defen- eight months, i.e. for the period in which dant in the main proceedings, the Rijks- the plaintiff had worked in Nuremberg, dienst voor Pensioenen (National Pensions disregarding the subsequent periods in Office) (hereinafter 'the defendant') takes employment on the territory of the future the view that it cannot comply with that (now former) GDR. The Belgian institution request because it has been shown that the then took a final decision on 20 April plaintiff was employed in Germany during 1990, awarding a pension on the basis that period. 41/45.
7. Following Germany reunification in 5. The plaintiff, born on 11 August 1924, 1990, the plaintiff lodged an application submitted a claim on 22 September 1988 for review, seeking to have the insurance for an employed person's pension as from periods completed in East Germany, in the 1 September 1989 (that is to say, during the territory of the former GDR, taken into calendar month after that in which his 65th account for pension purposes. By decision birthday fell). In his application he stated of 19 June 1995 the German institution that he had been employed in Germany acknowledged that Germany was liable for payment of a benefit of DEM 903.12 with effect from 1 January 1995, calculated on 3 — See the sixth paragraph of Article 32b, which provides as the basis of a period of employment of 29 follows: 'Het vermoeden voorzien in de twee voorgaande leden is months (26 months of employment from slechts weerlegd voor de perioden van tewerkstelling 30 March 1943 to 30 April 1945, plus waarvoor belanghebbende aanspraak kan maken op een pensioen krachtens een andere Belgische pensioenregeling, three months added by way of a fixed met uitzondering van die voor de zelfstandigen, of van een regeling van een vreemd land. Het is eveneens weerlegd supplement). wanneer de betrokkene een tewerkstelling bewijst als mijnwerker, zeeman of zeevisser.' 'The presumption laid down in the two previous paragraphs may be rebutted only in respect of periods of employment for which the person concerned can claim a pension under another Belgian scheme, with the exception of the scheme for self-employed persons, or under a scheme of a foreign 8. The recalculation of pension entitlement country. It may also be rebutted where the person concerned by the German institution prompted the provides evidence of employment as a mineworker, seaman or fisherman.' Belgian institution in turn to recalculate its
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award. By decision of 26 July 1995, com- persons, or under a scheme of a foreign municated to the plaintiff on 4 August, the country.' Belgian institution determined his entitle- ment with effect from 1 January 1995 on a reduced basis, namely 40/45. The plaintiff appealed against that decision.
Is a provision such as the sixth paragraph of Article 32b of the Royal Decree of 21 December 1967 a provision on reduc- tion, suspension or withdrawal laid down 9. The national court referred the following by the legislation of a Member State, as question for a preliminary ruling: referred to in Article 46b(2) of Regulation No 1408/71, which does not apply to a benefit calculated in accordance with Arti- cle 46(l)(a)(i)?
The fifth paragraph of Article 32b of the Royal Decree of 21 December 1967 laying down general rules concerning retirement and survivor's pensions for workers pro- 10. The defendant and the Commission vides as follows: 'An employed person who participated in the procedure. The argu- was in employment during the period ments of the parties will be considered in between 1 January 1938 and 1 January the context of the legal analysis. 1945 in respect of which a contribution was paid of an amount equivalent to the annual amount referred to in the second paragraph shall be deemed to have paid sufficient contributions to establish that he was normally and principally employed throughout the period between the date on which the period of employment esta- B — Analysis blished came to an end and 1 January 1946.'
11. According to the national court, there is no dispute concerning the insurance period that would have had to be taken The sixth paragraph of Article 32b of the into account for the calculation of the aforesaid Royal Decree of 21 December Belgian pension if the plaintiff had not 1967 provides as follows: 'The presump- been in receipt of a German pension. The tion laid down in the two previous para- years from 1942 to 1945 were therefore graphs may be rebutted only in respect of taken into account in the provisional deci- periods of employment for which the sion of 6 March 1989, partly on the basis person concerned can claim a pension of pension contributions and partly on the under another Belgian scheme, with the basis of the so-called 'war years presump- exception of the scheme for self-employed tion' laid down in the fifth paragraph of
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Article 32b of the Royal Decree of therefore be regarded as a national provi- 21 December 1967. 4Pursuant to the sixth sion against overlapping external benefits. paragraph of Article 32b of that decree, that presumption may be rebutted only in respect of periods of employment for which the person concerned can claim a pension under another Belgian scheme — with the exception of the scheme for self-employed 13. In those circumstances, it follows that, persons — or under a scheme of another pursuant to Article 46b(2) of Regulation State. No 1408/71, the sixth paragraph of Arti- cle 32b of those General Rules may not be applied in calculating the benefits in accor- dance with Article 46(l)(a)(i) of Regulation No 1408/71.
14. The national court notes however that the Arbeidshof Gent (High Labour Court, Ghent) had already upheld the defendant's contention that the rebuttal of the war 12. The national court points out that, with years presumption is not a provision on regard to Article 46(1) of Regulation overlapping benefits in the event of the No 1408/71, in the version applicable on person concerned being in receipt of a 1 June 1992, 5the Court has repeatedly pension under the scheme of another stated, that on the basis of Article 12(2) of Member State. the Regulation, in the case of benefits of the same kind national rules against overlap- ping external benefits had to be left out of account. That is to say, it was necessary to calculate the amount of the pension which could be claimed under national law as if 15. The defendant, having clarified the the person concerned was not in receipt of temporal scope of the relevant provisions, a pension under a scheme of another discusses the content and purpose of the Member State. It may be inferred from this provision in question. It contends that the that any provision which is designed to intention of the Belgian legislature in take into account a pension received by the introducing the war years presumption person concerned under a scheme of was to ensure that workers whose employ- another Member State constitutes a ment and social security contribution national provision against overlapping record had been interrupted because of external benefits. That being so, the sixth wartime events would not forfeit subse- paragraph of Article 32b of the Belgian quent pension entitlement. However, the General Rules on Workers' Pensions could presumption established for this purpose may be rebutted. Under the sixth paragraph of Article 32b, it may be rebutted for 4 — Cited in footnote 2. periods during which the person concerned 5 — OJ 1992 C 325. can claim a pension under another Belgian
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or foreign pension scheme. The legislature's 'completed year' 6 should not be recog- aim in introducing the rule was to avoid nised, because of a foreign pension claim pension being paid twice in respect of the but that the foreign pension precludes same period. This applied regardless of the recognition of a year unaccounted for as a reasons for which a worker's career was period of employment. If a pension is to be interrupted and the reasons why he or she calculated exclusively under Belgian pen- may have acquired another type of pension sion law (within the meaning of Arti- entitlement. cle 46(l)(a)(i)), periods for which a Ger- man pension is granted cannot therefore be treated as equivalent. Since this is not a matter of overlapping benefits of the same kind under the legislation of two Member States, Article 46b of R e g u l a t i o n No 1408/71 is not applicable. 16. Indeed, similar provisions applied before the rule in question came into force. Under both the earlier and the later rules, it claims, periods not accounted for were treated as periods of employment. 19. The defendant proposes that the ques- tion referred for a preliminary ruling should be answered as follows:
17. According to the defendant, Arti- cle 32b concerns the conditions for entitle- ment to benefit, specifically the manner in A provision such as the sixth paragraph of which evidence can be furnished of pen- Article 32b of the Royal Decree of sionable employment, and how far periods 21 December 1967 does not constitute a not credited can be recognised as periods of provision on reduction, suspension or with- employment. In its view, it is for the Belgian drawal laid down by the legislation of a legislature alone to determine the condi- Member State, as referred to in Arti- tions governing evidence of employment. In cle 46b(2) of Regulation No 1408/71. deciding that pension entitlement may arise only in respect of periods for which there is no pension entitlement under another national or foreign system, the legislature was not laying down a rule against over- lapping benefits. 20. The Commission states, first, that the pension benefits in question are undoubt- edly benefits of the same kind within the meaning of Regulation No 1408/71. It then compares the relevant provisions in the versions preceding and subsequent to
18. According to the defendant, it does not follow from the relevant provisions that a 6 — A proven year.
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1 July 1992, and concludes that neither Ultimately, what is involved here is a rule of permits application of 'provisions on reduc- evidence. tion, suspension or withdrawal' for the purpose of calculating a Belgian national pension. The only point to be determined is therefore whether the fifth and sixth para- graphs of Article 32b of the Royal Decree of 21 December 1967 7 constitute a provi- sion on overlapping, within the meaning of Article 46b of Regulation No 1408/71. 22. The Commission proposes the follow- ing reply to the question referred for a preliminary ruling:
Provisions such as those contained in the sixth paragraph of Article 32b of the Royal Decree of 21 December 1967 are not 21. In order to answer this question, the provisions on reduction, suspension or Commission considers in detail the withdrawal laid down by the legislation Romano8 and Conti9 cases. In those cases, of a Member State, as referred to in national years 10 and a supplement 11 had Article 46b(2) of Regulation No 1408/71, been reduced by years of actual employ- such as may not be applied in calculating a ment completed under another scheme and benefit under Article 46(l)(a)(i). by an entitlement obtained under similar circumstances respectively. The Court held that these calculation procedures constitute provisions on overlapping within the mean- ing of Regulation No 1408/71. In the Commission's view, that ruling cannot be transposed automatically to the present case. The provision at issue in the present case does not provide for national years, in the sense of periods that could not be Law 'localised in time'. 12 On the contrary, there is a presumption that the beneficiary was employed in Belgium for a certain length of time. That presumption can be rebutted.
23. Under Article 46(l)(a)(i) of Regulation 7 — Cited in footnotes 2 and 3. No 1408/71, the competent institution 8 — Case 58/84 [1985] ECR 1679. initially calculates the amount of benefit 9 — Case C-143/97 [1998] ECR I-6365. 10 — See Romano, cited in footnote 8. that would be due under the provisions of 11 — See Conti, cited in footnote 9. the legalisation which it administrates. 12 — Specified periods. Under Article 46b(2) of the regulation, the
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provisions on reduction, suspension or calculation which it requires to be made withdrawal laid down by the legislation has the effect of reducing the amount of of a Member State apply to a benefit pension which the person concerned may calculated in accordance with Arti- claim because he receives a benefit from cle 46(1)(a)(i) only under specific condi- another Member State.' 15 tions, clearly defined in paragraph 2(a) and (b), 1 3 which are not fulfilled in this instance.
26. However, in the present case it must 24. It therefore appears that provisions on first be ascertained how far the person reduction, suspension or withdrawal within concerned has a 'claim'. The first step must the meaning of that provision do not apply therefore be to define the conditions for to the calculation of the Belgian pension. It entitlement before proceeding to the sec- must accordingly be determined whether ond, which involves calculating any reduc- the national provision, under which the so- tion in line with this definition. called 'war years presumption' may be rebutted in respect of insurance periods for which a pension can also be claimed under another national or foreign pension scheme, is to be qualified as a provision on reduction.
27. In the main proceedings, it appeared that the plaintiff was first awarded, and even paid, for a number of years, a Belgian pension which was reduced on account of 25. In its judgment of 22 October 1998 in the German pension granted subsequently. Conti,14 the Court defined a provision on reduction in the following terms: In the light of its outcome, this situation might at first sight appear to result from a 'provision on reduction'. However, it should not be forgotten that the sequence of events was an inevitable consequence of the political developments associated with 'A national rule must be regarded as a the reunification of Germany. It is not an provision for reduction of benefit if the inherent element of the provisions govern- ing the calculation of benefits. In order to arrive at a proper appraisal of these provi- 13 — '... only if the benefit concerned is: sions, it is legitimate to ask how the (a) either a benefit, which is referred to in Annex IV, pension would have been calculated if, part D, the amount of which does not depend on the length of the periods of insurance or of residence when the application was made, there had completed; or (b) a benefit, the amount of which is determined on the been a corresponding pension entitlement basis of a credited period deemed to have been completed between the date on which the risk materialised and a later date ...'. 14 — Case C-143/97, cited in footnote 9. 15 — Case C-143/97, cited in footnote 9, paragraph 25.
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for all periods of employment in German gorising them as rules for calculating the territory. amount payable'. 16
30. There is no such risk in the case to be decided here, since the war years presump- 28. It seems beyond question that in that tion comes into play at a stage preceding event, not merely the eight months' the actual pension calculation. The first employment in Nuremberg, but the 29 step in the process of awarding a pension is months' employment validated by the Ger- to establish all the periods which are man pension fund would have been taken relevant for pension insurance purposes, into account from the outset, so that the i.e. periods of employment covered by a war years presumption contained in the compulsory social security scheme and Belgian rule would not have been applic- periods treated as equivalent. 17 It is at this able to these definable periods of time. A point that the war years presumption under fraction of only 40/45 would then have the Belgian scheme comes into play. If the been taken as a basis for the Belgian worker is unable, for various reasons which pension from the beginning and no reduc- may be factual or administrative, to furnish tion, even of a purely computational kind, evidence for all the war years of periods of would have been made in the amount of employment that are relevant for pension pension initially fixed. insurance purposes, as long as a minimum period of employment has been completed the worker will be deemed in accordance with the war year presumption to have been in employment covered by a compul- sory social security scheme for the duration of the war.
29. Since there is always a calculation involved in determining the amount of the pension to be paid, it is important to ensure that a comparatively lower pension is not merely the result of applying a rule for 31. This arrangement to the worker's calculating the amount. In its judgment in advantage which is designed to establish Conti, the Court stated: an insurance record as free from gaps as possible and which is necessitated by the difficult conditions prevailing during the war, can be dispensed with if it can be shown that the worker has completed relevant periods of employment for pension insurance purposes, under another national
'... national provisions for reduction of benefits cannot be rendered exempt from 16 — See judgment in Case C-143/97 cited in footnote 9, the conditions and limits of application laid paragraph 24. 17 — For instance, periods of sickness, invalidity or unemploy- down in Regulation No 1408/71 by cate- ment.
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or foreign scheme, which itself gives rise to 34. As regards the Court's definition of a a pension entitlement. provision on reduction, cited in point 25 above, it should be noted that the mechan- ism of the war years presumption and its rebuttal comes into play at the stage when it is determined whether the conditions for a pension claim are met.
32. Considered in isolation this criterion for a valid pension claim — undoubtedly introduced for the worker's benefit — may be misleading, in as much as it could be construed as meaning that a foreign pen- 35. In support of the view advanced here, it sion is to be deducted from a national should be pointed out that the structure of pension entitlement. Such an approach the Belgian pension rules at issue in should not however be allowed to obscure Romano, 18 Di Crescenzo 19 and Conti, 20 the fact that the war years presumption which the Court defined as provisions on takes effect systematically at the stage when reduction, is essentially different from that the pension is determined. By establishing of the provision at issue here. Those three the qualitative criterion of a 'pensionable cases concerned a fixed increase period of employment' the Belgian legisla- designed — by mean of national years or ture is merely ensuring that such periods, to a supplement — to bring the pension paid be credited to the employee for pension in respect of periods actually completed up purposes, are treated as sufficient evidence to the level payable in respect of a full of a period of employment. employment record in each case. In the present case, by contrast, the question is how to fill gaps in the record which can be accurately localised in time.
33. The war years presumption is therefore to be regarded as a rule of evidence, 36. The purpose of the two sets of rules is necessitated by the conditions which pre- also quite different. Whereas in those three vailed during the war, for substantiating cases 21 the rules that gave rise to the periods relevant for pension purposes, a judgments were intended to 'compensate' rule which will not come into play if for factors associated with the person of the another kind of pension insurance cover beneficiary and the work done (at least 25 has been shown to exist. The definition of years underground in the mining industry) the war years presumption as a rule of evidence cannot be seriously challenged on the ground that, in the main proceedings, 18 — Case 58/84, cited in footnote 8. the Belgian pension was retroactively 19 —Joined Cases C-90/91 and C-91/91 [1992] ECR 1-3851. reduced because of the actual conditions 20 — Case C-143/97, cited in footnote 9. and political circumstances prevailing in 21 — Case 58/84, cited in footnote 8; Joined Cases C-90/91 and C-91/91, cited in footnote 18 and Case C-143/97, cited in Germany. footnote 9.
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in the present case a rule of evidence is ment, on the other. The earlier judgments required to mitigate the problems of main- do not therefore mean that the national taining regular employment in the difficult provision at issue in the present case must social and political conditions which pre- be held to be a provision on reduction vailed during the war, on the one hand, and within the meaning of Regulation providing evidence of such regular employ- No 1408/71.
Conclusion
37. In the light of the foregoing remarks, I propose that the Court give the following answer to the question referred for a preliminary ruling:
A provision such as that contained in the sixth paragraph of Article 32b of the Royal Decree of 21 December 1967, under which the 'war years presumption' (being a presumption of uninterrupted employment subject to compulsory social security contributions throughout the Second World War) may be rebutted by periods in respect of which there is a pension entitlement under the scheme of another Member State, is not to be regarded as a provision on reduction, suspension or withdrawal laid down by the legislation of a Member State which, in that case, would not apply to the calculation of a pension under Article 46(1)(a)(i) of Regulation (EEC) N o 1408/71 pursuant to Article 46b(2) of the regulation.
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