C-161/98

PLATBROOD V ONP

OPINION OF ADVOCATE GENERAL ALBER delivered on 18 May 1999 *

A — Introduction Belgian pension was recalculated by the Belgian institution.

3. The applicable Belgian provision 2con- tains a so-called 'war years presumption' to 1. The present reference for a preliminary the effect that 'an employed person who ruling from the Tribunal du Travail was in employment in the period between (Labour Court) Mons concerns, in respect 1 January 1938 and 31 December 1944 of the calculation of a Belgian employee's shall be deemed to have continued to be an retirement pension, the interpretation of employed person under the same condi- Article 46b(2) in conjunction with Arti- tions as regards duration throughout the cle 46(l)(a)(i) of Council Regulation (EEC) period between the date on which his No 1408/71 on the application of social employment ceased and 31 December security schemes to employed persons, to 1945'. 3This presumption may be rebutted self-employed persons and to members of only for periods of employment in respect their families moving within the Commu- of which the person concerned can claim a nity. 1 pension under another Belgian scheme, with the exception of the scheme for self- employed persons, or under a scheme of a foreign county. 4

4. The case arose in the context of the award pensions in such cases, the plaintiff following dispute. The plaintiff in the main did not apply for one. proceedings (hereinafter 'the plaintiff') is seeking to have the years 1943 and 1944 recognised as giving rise to a pension entitlement in regard to a Belgian retire- ment pension for employed persons. The defendant in the main proceedings, the Office National des Pensions (hereinafter 7. On 4 May 1994, following German the 'defendant'), considers that the pre- reunification in 1990, the plaintiff lodged sumption of regular employment during the an application for the award of a German time period in question, established in the pension. By decision of 6 July 1995, the first paragraph of Article 32 of the Royal competent German institution, the Land- Decree, is rebutted because the plaintiff esversicherungsanstalt Rheinprovinz receives a pension for this period under a (Regional Insurance Office for Rhine Pro- foreign scheme. vince), acknowledged a German pension entitlement in the amount of DEM 465.12 p.a. covering the period from 29 March 1943 to 30 April 1945.

5. By decision of 30 September 1986, the plaintiff born on 18 June 1922, was awar- 8. The acknowledgment of a pension enti- ded with effect from 1 July 1986 a Belgian tlement by the German institution led the retirement pension payable under the Bel- Belgian authority, for its part, to recalculate gian scheme for employed persons calcu- the pension it had awarded. By decision of lated on the basis of a representative 31 July 1995, with effect from 1 January fraction of his employment record of 6/45 1992, the Belgian authority acknowledged for the years 1941 to 1946. The statutory a pension entitlement for the years 1941, presumption established in the first para- 1942, 1945 and 1946. 5 graph of Article 32 of the Royal Decree of 21 December 1967 covered the years 1943 to 1945.

12. The referring court considers this assessment correct. In coming to this con- clusion it cites the opinion of the 'auditeur' (representative of the public interest) who 14. As regards the calculation of the pen- was party to the main proceedings: the sion payable to the plaintiff by the Belgian legal presumption is available only if there institution, required under Community were no actual contributions already or law, the referring court has already upheld also giving rise to a retirement pension for the application in part. However, before the same period. This rule is a rule con- handing down a final decision, it asks the cerning the arising of pension entitlement, a Court to clarify the question whether the condition for the award of a pension, not provision that the war years presumption an anti-overlapping rule. In the absence of may be rebutted by evidence of an insur- ance period completed elsewhere, in respect of which a pension is actually being paid, 6 — Council Regulation of 30 April 1992 amending Regulation represents an anti-overlapping provision (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and within the meaning of Regulation to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the proce- No 1408/71 as amended by Regulation dure for implementing Regulation (EEC) No 1408/71; this No 1248/92, which, when calculating a regulation is incorporated in the consolidated version of Regulation No 1408/71, published in OJ 1992 C 325. pension only under the provisions of the

15. The questions referred by the national In other words, must the new provisions of court for a preliminary ruling are worded Regulation No 1248/92 be interpreted as as follows: authorising overlapping, without reduc- tion, suspension or withdrawal, of a retire- ment pension awarded to a Belgian national, payable by Belgium and calcu- lated on the basis of presumed or notional contributions by virtue of the principle that there is a legal presumption in respect of the war years, as laid down by Arti- cle 32(1) of the Royal Decree of 21 Decem- 'Do the new provisions of Regulation ber 1967 (subject to the reservation con- (EEC) No 1248/92 require Belgium to tained in that provision whereby the person grant a beneficiary the right to a retirement concerned may not, however, claim a pension calculated on the basis of an pension under a foreign scheme for those employment record comprising in part periods of employment) with a retirement years in the course of which presumed or pension payable by Germany calculated on notional contributions must be taken into the basis of actual contributions covering account — unless the person concerned can the same period or, on the contrary, does claim a pension under a foreign scheme for the exception provided for by Article 32(1) those periods of employment (principle that of the Royal Decree of 21 December 1967 there is a legal presumption in respect of (no legal presumption in respect of the war the war years, as laid down by Arti- years if the person concerned can claim a cle 32(1) of the Royal Decree of 21 Decem- pension under a foreign scheme for those ber 1967 establishing general rules for the periods of employment) not constitute a retirement and survival pension scheme for provision on reduction, suspension or with- employed persons prior to its repeal by the drawal declared inapplicable by the new Royal Decree of 4 December 1990 — provisions of Regulation No 1248/92?' although it remains applicable to retire- ment pensions which became payable for the first time before 1 January 1991) in circumstances where, specifically, the per- son concerned has been awarded a retire- ment pension payable by Germany on the basis of actual contributions corresponding to the presumed or notional contributions 16. The defendant and the Commission are parties to the present procedure. Their 7 — See Article 46(1)(a)(i) of Regulation No 1408/71. submissions will be considered in the legal 8 — See Article 46b(2) of Regulation No 1408/71. analysis.

20. The defendant suggests that the ques- tion referred to the Court be answered in the following terms: 18. Citing the judgments in Romano 10 and Di Crescenzo11 concerning a Belgian pro- vision on the recognition of notional insured periods for miners which the Court qualified as anti-overlapping provisions, the defendant contends that the present The concept of a provision on reduction, case concerns a fundamentally different suspension or withdrawal referred to in provision. The statutory war years pre- Articles 12 and 46 of Regulation sumption may be rebutted. In its view, the No 1408/71 is to be interpreted as meaning rule of evidence represents a condition of that it does not include a national provision pension entitlement laid down by the which establishes, as a condition to entitle- Belgian legislature. The system of a legal ment, a rule in the form of a statutory war presumption for specific periods of time, years presumption which may be rebutted which can be rebutted by evidence of by evidence of specific insurance periods completed under another national or for- eign scheme. 9 — See page 4 of the defendant's written observations Case 24/75 Vetroni v ONPTS [1975] ECR 1149; Case 236/78 FNROM v Mura [1979] ECR 1819; Case 58/84 ONPTS v Romano [1985] ECR 1679; Case 117/84 ONPTS v Ruzzu [1985] ECR 1697; Case 296/84 Sinatra v FNROM [1986] ECR 1047; Case 37/86 van Gastel v Rijksdienst and Rijkskas [1987] ECR 3589; Case 323/86 Collini v ONPTS [1987] 21. The Commission contends first that the ECR 5489; Case 128/88 Di Felice v INASTI [1989] ECR 923; Case C-199/88 Cabras v INAMI [1990] pension payments at issue undoubtedly ECR I-1023; and Joined Cases C-90/91 and C-91/91 ONP constitute benefits of the same kind within v Di Crescenzo and Casagrande [1992] ECR I-3851. 10 — Case 58/84, cited in footnote 9. the meaning of Regulation No 1408/71. It 11 —Joined Cases C-90/91 and C-91/91, cited in footnote 9. then goes on to compare the relevant

Provisions such as those contained in 22. In order to resolve this question, the Article 32(1) of the Royal Decree of Commission examines the Romano 13 and 21 December 1967 do not constitute pro- Conti 14 cases in greater detail. In those visions on reduction, suspension or with- cases, notional insurance years 15 and a drawal within the meaning of Regulation supplement 16 had been reduced in respect No 1408/71. of years of actual employment under another scheme, and a pension entitlement acquired under such a scheme, respectively. The Court qualified calculation provisions of this kind as anti-overlapping provisions within the meaning of Regulation No 1408/71. The Commission is of the opinion, that this conclusion does not necessarily apply in the present case. It contends that the provision at issue in this Assessment case does not accord any notional years in the sense of crediting periods that could not be localised in time. There is, on the contrary, a presumption that the benefi- ciary was employed for a specific period of time in Belgium. That presumption can be 24. Under Article 46(l)(a)(i) of Regulation No 1408/71 the competent institution is first required to calculate the amount of the 12 — Cited in footnote 4. benefit that would be due under the 13 — Case 58/84, cited in footnote 9. 14 — Case C-143/97 ONP v Conti [1998] ECR 1-6365. legislation which it administers. Under 15 — Romano, cited in footnote 9. Article 46b(2) of the regulation, provisions 16 — Conti, cited in footnote 14. on reduction, suspension or withdrawal of

25. It therefore appears that provisions on reduction, suspension or withdrawal, within the meaning of that provision do not apply to the calculation of the Belgian pension. It must accordingly be determined whether the national provision, under which the so-called 'war years presump- tion' may be rebutted in respect of insur- 28. In the main proceedings, it appeared ance periods for which a pension can also that the applicant was first awarded, and be claimed under another national or even paid for a number of years, a Belgian foreign pension scheme exists, is to be pension which was reduced on account of qualified as a provision on reduction. the German pension granted subsequently. In the light of its outcome, this situation might at first sight appear to result from 'provision on reduction'. However, it should not be forgotten that the sequence 26. In its judgment of 22 October 1998 in of events was an inevitable consequence of Conti, 18the Court defined a provision on the political developments associated with reduction in the following terms: the reunification of Germany. It is not an inherent element of the provisions govern- ing the calculation of benefits. In order to arrive at a proper appraisal of these provi- sions, it is legitimate to ask how the 'A national rule must be regarded as a pension would have been calculated if, provision for reduction of benefit if the when the application was made, there had calculation which it requires to be made been a corresponding pension entitlement has the effect of reducing the amount of for all periods of employment in German pension which the person concerned may territory. claim because he receives a benefit from another Member State.' 19

applicable to the period recognised by the security covered by compulsory contribu- German institution (29 May 1943 to tions and periods treated in the same 30 April 1945). A fraction of only 4/45 way. 2 1 It is at this point that the war years would then have been taken as a basis for presumption under the Belgian scheme the Belgian pension from the beginning, comes into play. If the worker is unable, within the framework of the general pen- for various reasons which may be factual or sion scheme and no reduction, even of a administrative, to furnish evidence for all purely computational kind, would have the war years of periods of employment been made in the amount of pension that are relevant for pension insurance initially fixed. purposes, as long as a minimum period of employment has been completed, the worker will be deemed in accordance with the war years presumption to have been in employment covered by a compulsory social security scheme for the whole dura- 30. Since there is always a calculation tion of the war. involved in determining the amount of the pension to be paid, it is important to ensure that a comparatively lower pension award is not merely the result of applying a rule for calculating the amount. In its judgment in Conti, the Court already stated: 32. This arrangement to the worker's advantage, which is designed to establish an insurance record as free from gaps as possible and which is necessitated by the difficult conditions prevailing during the '... national provisions for reduction of war, can be dispensed with if it can be benefits cannot be rendered exempt from shown that the worker has completed the conditions and limits of application laid relevant periods of employment for pension down in Regulation No 1408/71 by cate- insurance purposes under another national gorising them as rules for calculating the or foreign scheme, which itself gives rise to amount payable'. 20 a pension entitlement.

36. In support of the view advanced here, it should be pointed out that the structure of the Belgian pension rules at issue in Romano,22 Di Crescenzo23 and Conti,24 which the Court defined as provisions on reduction, is essentially different from that 34. The war years presumption is therefore of the provisions at issue here. Those three to be regarded as a rule of evidence cases concerned a fixed increase necessitated by the conditions which pre- designed — by means of notional years, vailed during the war, for substantiating or a supplement — to bring the pension . periods relevant for pension purposes, a paid in respect of periods actually comple- rule which will not come into play if ted up to the level payable in respect of a another kind of pension cover has been full employment record in each case. In the shown to exist. The definition of the war present case, by contrast, the question is years presumption as a rule of evidence how to fill gaps in the record which can be cannot be seriously challenged on the accurately localised in time. ground that, in the main proceedings, the Belgian pension was retroactively reduced because of the actual conditions and poli- tical circumstances prevailing in Germany.

37. The purpose of the two sets of rules is also quite different. Whereas in those three

22 — Case 58/84, cited in footnote 9. 35. As regards the Court's definition of a 23 — Joined Cases C-90/91 and C-91/91, cited in footnote 9. provision on reduction, cited in point 26 24 — Case C-143/97, cited in footnote 14.

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OPINION OF MR ALBER — CASE C-161/98

41. There is consequently no valid reason for challenging on grounds of justice the conclusion reached on the basis of systema- tic considerations. 39. In the first place, it may be assumed for the sake of argument that a pension is being 26 — This represents a statutory condition for rebuttal of the presumption. 27 — See Article 46(1)(a)(i) of Regulation No 1408/71. 25 — Case 58/84, cited in footnote 9; Joined Cases C-90/91 and 28 — See Article 46(2)(b) of Regulation No 1408/71. C-91/91, cited in footnote 9; Case C-143/97, cited in 29 — See Article 46(2)(a) of Regulation No 1408/71. footnote 14. 30 — See Article 46(3) of Regulation No 1408/71.

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PLATBROOD V ONP

C — Conclusion

42. In the light of the foregoing considerations, I propose that the question referred to the Court be answered as follows:

A national provision 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 insurance periods completed elsewhere, 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 Council Regulation (EEC) No 1408/71, as amended by Council Regulation (EEC) No 1248/92, pursuant to Article 46b(2) thereof.