C-389/99

OPINION OF MR ALBER — CASE C-389/99

OPINION OF ADVOCATE GENERAL ALBER delivered on 26 October 2000 1

I — Introduction I I — Facts

2. Sulo David Rundgren, the claimant in the main proceedings (hereinafter 'the claimant'), who has been a Swedish national since 1975, moved from Sweden to Finland on 29 September 1989. From 1991 to 1996 he received from Sweden a 1. The reference for a preliminary ruling State pension and an old-age pension based made by the Lapin lääninoikeus, a Finnish on his work in the civil service and a life administrative court, raises questions on annuity following an accident at work. the interpretation of Articles 28a and 33(2) From 1994 to 1996 he had no income other of Regulation (EEC) No 1408/71 on the than the pensions paid by Sweden. application of social security schemes to employed persons, to self-employed per- sons and to members of their families moving within the Community, 2in par- ticular the question whether a Swedish national residing in Finland who actually receives pension benefits only from Sweden is liable to pay contributions in Finland. Finland justifies the alleged obligation to pay State pension and sickness insurance 3. In Finland the claimant was declared contributions by reference to the person's liable to pay State pension contributions of residence in the Finnish State. FIM 2 299.20 and sickness insurance con- tributions of FIM 4 611.21 in respect of the tax assessment for 1994, State pension 1 — Original language: German. contributions of FIM 1 279.01 and sick- 2 — Regulation (EEC) No 1408/71 of the Council of 14 June ness i n s u r a n c e c o n t r i b u t i o n s of 1971 in the version relevant to the present dispute — consolidated version (OJ 1992 C 325, p. 1). FIM 4 091.15 in respect of 1995, and

— At the time when he resided in Sweden, he paid all relevant contributions for the financing of pension and sickness 5. The claimant appealed against that deci- insurance schemes, the purpose of sion. He based his appeal inter alia on the which was to cover social security following grounds: protection following his retirement. According to his own statement, the claimant also pays State pension and sickness insurance contributions in Sweden, which form part of Swedish tax at provincial level. If he is liable to pay contributions in Finland, he is subject to double taxation. A person — Since he does not receive any taxable residing in Sweden who receives a income in Finland and does not there- pension and a life annuity from Finland fore pay any income tax there, he does not have to pay any correspond- cannot be required to pay any para- ing contributions in Sweden. He is thus fiscal contributions either. the object of prohibited discrimination.

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I I I— Applicable legislation in accordance with the provisions of that legislation alone.'

(1) Community legislation 7. Article 28a reads as follows:

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pension and which administers legislation insured persons have to pay contributions providing for deductions from pensions in calculated on the basis of the total income respect of contributions for sickness and taken into account for taxes in respect of maternity shall be authorised to make such the preceding tax year. deductions, calculated in accordance with the legislation concerned, from the pension payable by such institution, to the extent that the cost of the benefits under Art- icles 27, 28, 28a, 29, 31 and 32 is to be borne by an institution of the said Member State. 11. Under Paragraph 1 of the Finnish Sickness Insurance Law (Sairausvakuutus- laki), all persons resident in Finland have sickness insurance under that Law. Sickness insurance contributions under Paragraph 2. Where, in the cases referred to in Art- 33(2) of that Law are calculated on the icle 28a, the acquisition of benefits in basis of the total income taken into account respect of sickness and maternity is subject for taxes in respect of the preceding tax to the payment of contributions or similar year. payments under the legislation of a Mem- ber State in whose territory the pensioner in question resides, by virtue of such resi- dence, these contributions shall not be payable.'

12. Under Paragraph 1(2) of the Law of 30 December 1993 on the application of statutory social security provisions on the 9. Other relevant provisions of the regula- basis of residence (1573/93), it must be tion will be cited at the relevant points determined whether a person is to be below for reasons of better clarity. regarded as residing in Finland for the purposes of the application of statutory social security provisions, unless an inter- national convention by which Finland is bound provides otherwise.

2. If the answer to Question 1 is affirma- 14. The referring court has quoted the tive, is the expression "nor is any observations of the bodies involved in the pension payable" in Article 28a of main proceedings, the tax inspector for the Regulation No 1408/71 then to be Municipality of Tornio, the State Pension interpreted as covering a case in which: Office (Kansaneläkelaitos), the Ministry of Social Affairs and Health and the Swedish institutions competent in respect of sickness benefits and State pensions. The referring court takes the view that the present case primarily turns on whether Community (a) Mr Rundgren is not entitled to a law precludes the application of the Finnish State pension, or legislation under which the claimant is required to pay State pension and sickness insurance contributions to the compulsory insurance scheme on the basis of his income from Sweden. It therefore makes a refer- ence to the Court for a preliminary ruling (b) he is not entitled to a pension on the following questions: based on gainful employment, or

(c) does that expression cover only a case in which both point (a) and point (b) hold good for him at the same time? V — The questions

In interpreting the aforementioned '1. Is the EC Treaty or Regulation (EEC) expression, is it also to be taken that No 1408/71 on social security or Regu- entitlement to a pension means in this lation (EEC) No 1612/68 on freedom case Mr Rundgren's right in principle of movement for workers within the to a pension in Finland, in which case Community applicable in the situation no account is taken of his actual at issue, Mr Rundgren having changed circumstances, such as the effect on residence from Sweden to Finland on the acquisition of a pension in Finland 29 September 1989, that is, before the of the pension and annuity income Agreement on the European Economic received by him from Sweden, or does

4. What effect, in the interpretation of Articles 28a and 33(2) of Regulation (EEC) No 1408/71, does the fact have that Finland and Sweden have agreed, 7. Is Article 3 of Regulation (EEC) together with the other Nordic States, No 1408/71 or Article 6 of the EC in accordance with Article 36(3) of the Treaty (now Article 12 EC) to be said regulation and Article 23 of the interpreted as meaning that Mr Nordic Social Security Convention, to Rundgren has in the present case waive inter alia all reimbursement of become the object of prohibited the costs of care? discrimination?

5. If Articles 28a and 33(2) of the afore- 8. May Mr Rundgren rely directly on the said regulation apply so that Mr EC Treaty or on other Community law

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on the ground that he has possibly had years or over who resides in Finland has to pay contributions of a tax nature on old-age, invalidity and unemployment the same basis both to Finland and to insurance by law. Entitlement to a State Sweden as a result of the different pension is acquired through a period of methods adopted by Finland and residence of at least three years after Sweden in financing social security attaining the age of 16. The State pension schemes?' is calculated on the basis of the length of periods of residence in Finland. It is in- tended to guarantee a minimum income for persons who receive only a small pension or no pension at all on the basis of their gainful employment. The other pensions are therefore deducted in calculating the State pension. If the pensions exceed a certain ceiling, the State pension ceases to VI — Observations of the parties be payable.

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18. As far as the Swedish legal order is sonal scope of the regulation is laid down concerned, it is also assumed that entitle- in Article 2. 5The Court's case-law places ment to sickness benefits is dependent on recipients of pensions on a equal footing residence in the Member State. The Swed- with employed persons. It is therefore not ish legal order does not make such entitle- impossible that the regulation may be ment dependent on either contributions applicable to the present case. On the other paid, the exercise of a professional activity hand, Regulation (EEC) No 1612/68 of the or the receipt of a pension. Entitlement to Council of 15 October 1968 on freedom of benefits ceases if the person leaves Sweden. movement for workers within the Commun- No social security contributions are due in ity 6 seeks to regulate the situation of respect of a pension. migrant workers. Such a situation does not exist in the case at issue. Therefore, Regulation No 1612/68 is not applicable to the present case.

19. Irrespective of whether Regulation No 1408/71, and in particular Art- icle 13(2)(f) thereof, or the Nordic Conven- tion on Social Security is applied, Finland is competent in respect of a recipient of a The second question pension in the claimant's position.

20. As far as specific answers to the 22. With the second question, the referring individual questions referred for a pre- court seeks to ascertain whether the expres- liminary ruling are concerned, the Finnish sion 'nor is any pension payable' in Art- Governments makes the following observa- icle 28a means any type of pension, includ- tions: ing pensions based on gainful employment and the State pension under Finnish law, and whether it is an abstract legal status in respect of a pension or a specific pension entitlement. The Finnish Government takes the view that this question can be answered only in the overall context of Section 5 of The first question Regulation No 1408/71. The objective of the combined effect of Articles 28a and 33 is to prevent situations where a recipient of a pension is required to pay contributions

even though he has already acquired an The fourth question entitlement to sickness benefits in another Member State. In the view of the Finnish Government, such a situation does not exist in the present case. In the light of the objective of the provisions, an entitlement 'in principle' to a pension must be regarded 24. The Finnish Government points out as a payable pension within the meaning of that the Nordic Convention on Social the provision. It is consequently not Security was concluded at the same time dependent on whether a pension is actually as Regulation No 1408/71 took effect. The paid. The claimant's situation in the main provisions were necessary since the regula- proceedings is therefore governed by Art- tion did not take sufficient account of icle 27 7of Regulation No 1408/71. Under situations where entitlement to benefits in those circumstances, Articles 28a and 33(2) kind in the event of sickness is not con- cannot preclude the obligation to pay tingent on the receipt of a pension. It contributions provided for in the Finnish follows that the provisions of the Nordic legislation. Convention on Social Security do not conflict with Articles 28a and 33(2) of the regulation.

The third question

The fifth question

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Sickness benefits are payable solely under The second, third and sixth questions the Finnish legal order.

The sixth, seventh and eighth questions 28. The second, third and sixth questions, on which the Commission submits com- bined observations, are closely interrelated in the view of the Commission. Ultimately, it is necessary to clarify whether Regulation 26. The Finnish Government assumes that, No 1408/71 precludes the levying of sick- with the three questions, the referring court ness insurance and State pension contribu- wishes to ascertain whether the levying of tions. It must be concluded that the provi- contributions infringes any rule of Com- sions of Title II of Regulation No 1408/71 munity law. The Finnish Government takes constitute a self-contained system of con- the view that there is no discernible infringe- flict of law rules for determining the ment. The fact that different States apply applicable legal order. Consequently, under different legal orders does not in itself Article 13(2)(f) the claimant falls within constitute discrimination. On that assump- the scope of the Finnish legislation. An tion, the claimant's situation cannot be essential distinction must be drawn compared with that of someone residing in between this question and the question Sweden either. Rather, he is treated in the whether the claimant must also pay social same way as any other person residing in security contributions in Finland in respect Finland, irrespective of his nationality and of his Swedish pension. Under Articles 28a the sources of his income. The levying of and 28(2) 9of the regulation, Sweden is the contributions is not therefore contrary to competent State in respect of the award of the prohibition of discrimination enshrined the pension. in Community law.

pension which is based on residence in ant entitlement to further benefits either. Finland should be regarded as an entitle- In the view of the Commission, the neces- ment to a pension within the meaning of sary contributions are contrary to Art- Article 28a, with the result that it is no icles 48 and 51 of the EC Treaty (now, after longer relevant whether a pension is actu- amendment, Article 39 EC and 42 EC). ally paid. The Commission attributes this view to the wording of Article 28a of the regulation in the Finnish version, which can be translated literally as 'there is no entitle- ment to a pension or annuity'. 10 A com- parison of the other language versions of 31. The Commission therefore suggests Regulation No 1408/71 suggests, however, that the questions under consideration be that it refers to a specific entitlement to answered as follows: payment of a pension. This understanding of the provision is also consistent with its objective. Article 28a was incorporated into the regulation at a later date in order to prevent disproportionate burdens on a recipient of a pension who resides in a The second question Member State in which the system of sickness benefits is based on residence.

The fourth question The seventh and eighth question

The Commission cannot discern any pro- In the view of the Commission an agree- hibited discrimination in the legal situation ment by two Member States to reciprocally which is at issue in the present case. waive reimbursement pursuant to Art- icle 36(3) of Regulation No 1408/71 has absolutely no legal effects on the relation- ship between the competent institution of a Member State and the insured person. It affects only the relationship between the Member States themselves. VII — Assessment

The fifth question (1) The first question

The Commission takes the view that the 32. The first question asked by the refer- levying of social security contributions on ring court is above all a question regarding the Swedish pension is contrary to Com- the material and personal scope of Regula- munity law. It is therefore ultimately irre- tion No 1408/71 in relation to situations levant under what conditions an applica- like that in the main proceedings which tion for exemption under Article 17a of the might depend on events which took place regulation must be made. In the event that before the entry into force of Regulation the Court arrives at a different assessment, No 1408/71 in Finland, that is to say the Commission points out that it is before Finland's accession to the European ultimately for the national court to decide Community.

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35. The personal scope of the regulation is governed by Article 2. 15 Under Art- icle 2(1), the regulation applies first and foremost 'to employed or self-employed 34. The material scope of the regulation is persons who are or have been subject to the governed in Article 4. 14 Thereunder, the legislation of one or more Member States'. regulation applies to all legislation con- The same applies under Article 2(3) to cerning branches of social security which 'civil servants and to persons who, in relate to one of the listed types of benefit. accordance with the legislation applicable, The present case involves both sickness are treated as such'. As a former civil benefits and old-age benefits, as well as servant in Sweden, the claimant therefore benefits in respect of accidents at work and potentially falls within the scope of the occupational diseases. Since, under Art- regulation. With regard to the question whether events which occurred before the entry into force of the regulation might have to be taken into consideration, refer- 12 — The provision states: 'From the date of accession, the provisions of the original Treaties and the acts adopted by ence must be made to the transitional the institutions before accession shall be binding on the provisions of Article 94 of the regula- new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act'. tion. 16 13 — See OJ, English Special Edition 1971 (II), p. 416. 14 — Article 4(1) and (2) state: '1. This Regulation shall apply to all legislation concerning the following branches of social security: (a) sickness and maternity benefits; 15 — See footnote 5 above. (b) invalidity benefits, including those intended for the 16 — Article 94(2) and (3) reads as follows: maintenance or improvement of earning capacity; '2. All periods of insurance and, where appropriate, all (c) old-age benefits; periods of employment or residence completed under the (d) survivor's benefits; legislation of a Member State before 1 October 1972 or (e) benefits in respect of accidents at work and occupa- before the date of its application in the territory of that tional diseases; Member State or in a part of the territory of that State shall (f) death grants; be taken into consideration for the determination of rights (g) unemployment benefits; acquired under the provisions of this Regulation. (h) family benefits. 3. Subject to the provisions of paragraph 1, a right shall be 2. This Regulation shall apply to all general and special acquired under this Regulation even though it relates to a social security schemes, whether contributory or non- contingency which materialised prior to 1 October 1972 contributory, and to schemes concerning the liability of an or to the date of its application in the territory of the employer or shipowner in respect of the benefits referred to Member State concerned or in a part of the territory of that in paragraph 1.' State.'

Similarly, Article 94(2) of Regulation No 1408/71 provides that all periods of insurance and, where appropriate, all per- iods of employment or residence completed 'Article 1(a) of Regulation No 1408/71 under the legislation of a Member State defines the concept of "worker" as any before the date of its application in the person who is compulsorily or voluntarily territory of that Member State are to be insured under one of the social security taken into consideration for the determina- schemes referred to in subparagraphs (i), tion of rights acquired under the provisions (ii) or (iii) of that provision. Laid down of the regulation.' "for the purpose of this regulation", such a definition has a general scope, and in the light of that consideration covers any person who has the capacity of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade 37. When the claimant moved to Finland in activity. It follows that, even if they do 1989, he was already in receipt of a not pursue a professional or trade activity, pension. He was therefore no longer in an pensioners entitled to draw pensions under active employment relationship. On the the legislation of one or more Member one hand, the wording of Article 2 of the States come within the provisions of the regulation makes express reference also to regulation concerning "workers" by virtue the past ('have been subject'). On the other of their insurance under a social security

17 — Case C-275/96 Kuusijarvi[1998] ECR I-3419, paragraphs 18 — Case 182/78 Pimk [1979] ECR 1977 and Case C-57/90 24 and 25. Commission v France [1992] ECR I-75.

41. The first part of the first question should therefore be answered to the effect that Regulation No 1408/71 is applicable 43. It is therefore rather unlikely that to a person who was first gainfully Regulation No 1612/68 is applicable. That employed in a Member State and became regulation might at most be of interest with a recipient of a pension there, then settled respect to the applicability of the prohibi-

22 — Regulation (EEC) No 1251/70 of the Commission of 19 — Case 192/78 Pierik (cited in footnote 18, paragraph 4). 29 June 1970 (OJ, English Special Edition 1970 (II), 20 — Case C-57/90 Commission v France, cited in footnote 18, p. 402). paragraph 11. 23 — Council Directive 90/365/EEC of 28 June 1990 (OJ 1990 21 — Case 143/79 Walsh [1980] ECR 1639, paragraph 6. L 180, p. 28).

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tion of discrimination laid down in the for the reasoning. The Finnish version of regulation. However, it will not be abso- the regulation states 'eikä oikeutta eläkkee- lutely necessary to clarify definitively, in the seen ole', which, literally translated, means context of the approach taken here, 'absolutely no entitlement to a pension whether Regulation No 1612/68 is applicable (exists)'. 2 4That wording explains the to a case like the present one. The answer interpretation of the provision given by to the first question must therefore be that the Finnish authorities. Other language both the Treaty establishing the European versions of the regulation, however, suggest Community and Regulation No 1408/71 a different understanding. are applicable to a case like the present one.

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the legal definitions of the terms 'legisla- objective suggest a specific entitlement to a tion', 'benefits' and 'pensions' in Art- pension. icle 1(j) and (t) of the regulation. Art- icle 1(t) places the emphasis on payable contributions. 25

26 — See Article 50 of the regulation. 25 — Article 1(t) states: '"benefits" and "pensions" mean all benefits and pensions, including all elements thereof 27 — Case 22/81 Browning [1981] ECR 3357, paragraph 11. payable out of public funds, revalorisation increases and 28 — That article states: supplementary allowances, subject to the provisions of 'A recipient of benefits to whom this Chapter applies may Title III, as also lump-sum benefits which may be paid in not, in the State in whose territory he resides and under lieu of pensions, and payments made by way of reimburse- whose legislation a benefit is payable to him, be awarded a ment or contributions'. benefit which is less than the minimum benefit ...'.

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general, to provide the recipients with a pension on account of his other income, guaranteed minimum income'. 29 It there- there is a substantive ground for disquali- fore appears certain that an old-age pension fication from receipt of the pension. The such as the State pension should be re- procedural aspect of making an applic- garded as a pension within the meaning of ation — in order to result in a rejection — Chapter 1 of Title III of the regulation. can then no longer be important.

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is any pension payable' in Article 28a of that the Swedish institution at least reim- Regulation No 1408/71 is to be interpreted bursed the health care costs incurred for the as meaning that neither a State pension nor years 1996 to 1999. As far as the material a pension based on gainful employment is period (1994 to 1996) is concerned, more- payable. The assessment of the situation over, it can inferred indirectly from the depends on the specific circumstances, that claimant's answer that no reimbursement is to say the entitlement to a pension which took place for 1994 and 1995 because the is actually payable. 'annual allowance' was not exceeded. This can be seen from a letter from the Tornio pension fund which formed Annex 2 to the claimant's answer.

(3) The third, sixth and eighth questions

55. It can be inferred from the claimant's answer to the questions asked by the Court 34 — See point 69 below.

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tax either. However, by virtue of his income analogy to its wording 36 — in such cases from Sweden, the claimant is subject to a the acquisition by a pensioner of benefits in tax of 25% of taxable income levied at respect of sickness and maternity in a source. Such taxation applies to natural Member State is subject to the payment of persons residing abroad. That tax replaces contributions or similar payments by virtue the taxes levied under the Swedish Law on of his residence, these contributions are not municipal tax and the Law on income tax. payable.

57. It is not possible to assess conclusively whether, by virtue of their replacement function, those taxes can at least also be regarded as contributions within the mean- ing of Article 33(1) of the regulation 35 without further information concerning the interaction between the taxes and contri- butions and the social security scheme.

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notion of contribution under Article 33(2). one Member State simply because he has In the event that they are not covered by the gone to reside in another Member State'. 39 provision, the further question arises whether the levying of those contributions infringes another rule of Community law, whether it be Treaty law or secondary Community law. Therefore, Questions 6 and 8 should be dealt with in this context. 62. The Court drew the following conse- quences from that assertion:

'It follows from the foregoing that the rules 61. A broad interpretation of the terms laid down by the aforesaid Article 33 'contributions or similar payments' within concerning sickness or maternity benefits the meaning of Article 33(2) of the regula- constitute the application of a more general tion, which is not restricted to sickness principle according to which a pensioner insurance contributions, is suggested by the cannot be required, because he resides in aim of the provision, which is connected the territory of a Member State, to pay with the general objective of the regulation, compulsory insurance contributions to to contribute to the establishment of the cover benefits payable by an institution of fullest possible freedom of movement for another Member State'. 4 0 migrant workers. 38

63. This broad interpretation is perfectly capable of subsuming the contested State pension contributions for 1994 and 1995 In Noij the Court further stated: under the terms 'contributions or similar payments'. With regard to such contribu- tions to finance old-age, invalidity and unemployment schemes it is not possible to infer from Regulation No 1408/71 any more specific rules for a case such as forms the basis of Article 28a in conjunction with Article 33, with the result that a broad 'It would be contrary to that objective if, in interpretation of Article 33(2) appears to the absence of grounds of general interest, a be appropriate. This is also supported by worker could be deprived of part of a the fact that the contributions in cases like pension received under the legislation of

that in the main proceedings do not corre- double social levy contrary both to the spond to any entitlement to a benefit. regulation and to Articles 48 and 52 (now, after amendment, Article 43 EC) of the EC Treaty. 46 The Court found that there was both an infringement of Article 13 of Regulation No 1408/71 and an infringe- ment of Articles 48 and 52 of the Treaty. 64. The aspect of the interdependence of contributions and entitlement to benefits has already been highlighted by the Court in earlier judgments. For example, in the judgment in Terhoeve 41 the Court re- garded as an infringement of Article 48 of the EC Treaty (now Article 39 EC) a rule 65. If these principles of case-law are 'levying, on a worker who has transferred applied to the present case, it can be his residence in the course of a year from concluded that the levying of contributions one Member State to another in order to for State pensions which is contrary to take up employment there, greater social Article 33(2) is also an infringement of security contributions than those which Articles 48 and 52 of the Treaty. Both the would be payable, in similar circumstances, provisions of Regulation No 1408/71 and by a worker who has continued to reside the abovementioned Treaty provisions are throughout the year in the Member State in directly applicable law, with the result that question, without the first worker also the individual may rely directly on those being entitled to additional social bene- provisions. fits'. 42 In two Treaty infringement proceed- ings 43 brought against France, the Com- mission took action against the levying of the 'social debt repayment contributions' 44 and 'general social contributions' 45 in so far as the levying of contributions related to the employment income and substitute income obtained by employed and self- 66. Even if the Court were not to classify employed persons resident in France and the State pension contributions as contri- taxable in that Member State in connection butions or similar payments within the with employment in another Member meaning of Article 33(2) of the regulation, State. Such persons were therefore covered the individual still has the option in any by the social security scheme of the State of case to rely directly on the Treaty provi- employment in accordance with Regulation sions. The fact that the State pension No 1408/71. According to the Commis- contributions have been described by the sion, the levying of contributions was also a Finnish Government as parafiscal contribu- tions does not preclude this view. It is undisputed that the levies are collected not 41 — Case C-18/95 Terhoeve [1999] ECR I-345. 42 — Case C-18/95 Terhoeve (cited in footnote 41, paragraph as general taxes, but are designated for the 42; author's own emphasis). 43 — Cases C-34/98 and C-169/98 Commission v France [2000] ECR I-995,I-1049. 44 — Contribution pour le remboursement de la dette sociale. 46 — Case C-34/98 Commission v France (cited in footnote 43, paragraphs 19 and 20) and Case C-169/98 Commission v 45 — Contribution sociale généralisée. trance (cited in footnote 43, paragraphs 18 and 19).

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Finland and Sweden have availed them- of another Member State may at his request selves of the option provided for in Art- be exempted from the legislation of the icle 36(3) of the regulation by reciprocally latter State provided that he is not subject waiving reimbursement of costs of care. to that legislation because of the pursuit of an occupation.'

(5) The fifth question That provision was incorporated into Regu- lation No 1408/71 by Council Regulation (EEC) No 2195/91. 49 The fourth recital of 71. By the fifth question, the referring court that regulation states: seeks to ascertain whether and, if appro- priate, under what conditions exemption from the application of the legislation of the State of residence may be applied for in the event that an obligation to pay con- tributions should stem from the relevant provisions of Regulation No 1408/71. In accordance with the approach adopted 'Whereas a new provision must be inserted here, an obligation to pay contributions to in Regulation (EEC) No 1408/71 to the Finnish social insurance scheme in a exempt pensioners from the legislation of case like that of the claimant certainly does the State of residence when they are already not follow from the interpretation of Art- entitled to sickness insurance, maternity icle 28a in conjunction with Article 33(2). and family benefits under the legislation of It is consequently not necessary to give an another Member State'. express answer to the fifth question. The considerations regarding the question asked are therefore purely hypothetical in nature.

75. It should first be pointed out that the present case is not a typical case of discrimination prohibited under Commun- ity law. The claimant is not treated any worse than a national in Finland. The case 73. With regard to the effects of such a of a Finn who has settled in Sweden, which request, it should be pointed out that it is the referring court apparently assumes as a for the national legal order to organise the frame of reference for the comparison and administrative procedure, having regard, of with respect to which the claimant con- course, to the requirements of Community siders that unequal treatment exists, is not, law. The retrospective effect of a request having regard to the general principle of made under Article 17a of the regulation equal treatment, comparable with that of a therefore appears to be perfectly possible if Swede who has settled in Finland. and in so far as the person concerned was not previously informed of the possibility of making a request and its effects.

(2) The expression 'nor is any pension payable' in Article 28a of Regulation No 1408/71 is to be interpreted as meaning that neither a State pension nor a pension based on gainful employment is payable. The assessment of the situation depends on the specific circumstances, that is to say the entitlement to a pension which is actually payable.

(3) Contributions which are levied in respect of old-age, invalidity and unemployment (State pension contributions) may, under the circumstances of the specific case, be subsumed under the terms 'contributions or similar payments' within the meaning of Article 33(2) of Regulation No 1408/71. In any case, however, they should be assessed on the basis of Articles 48 and 52 of the Treaty, which the levying of such contributions infringes in so far as the payment of contributions does not correspond to any entitlement to a benefit.

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