C-290/00

OPINION OF MR JACOBS — CASE C-290/00

OPINION OF ADVOCATE GENERAL JACOBS delivered on 22 November 2001 1

1. In the present case, the Oberster Gericht- or privately under the legislation of the shof (Austrian Supreme Court) asks ques- Member State concerned? tions about the temporal scope and inter- pretation of Article 94 of Regulation No 1408/71 2and Articles 39 and 42 EC. 3 Those questions arise in proceedings brought by an Austrian national who, 3. Second, does Community law preclude having suffered an accident in 1968 whilst national rules under which the reference working in Germany, is seeking to obtain period, within which the qualifying period an occupational disability pension under must be completed, can be prolonged only Austrian law with effect from 1 January by periods during which the person was in 1998. The case raises two essential issues. receipt of a pension under the legislation of the Member State concerned?

2. First, does Community law preclude national rules under which an exception The relevant legislative provisions to the requirement of a qualifying period, as a condition for entitlement to occupa- tional disability pension resulting from an accident at work, applies only where the person suffering the accident was at the time of the accident insured compulsorily Community provisions

'Where, under the legislation of a Member benefit, the competent institution of that State, recognition of entitlement to a bene- Member State shall also take into consider- fit is conditional upon completion of a ation accidents at work or occupational minimum period of insurance during a diseases which have occurred or have been specific period preceding the contingency confirmed previously under the legislation insured against (reference period) and of another Member State as if they had where the aforementioned legislation pro- occurred or had been confirmed under the vides that the periods during which the legislation which it administers. benefits have been granted under the legis- lation of that Member State or periods devoted to the upbringing of children in the territory of that Member State shall give rise to prolongation of the reference period, periods during which invalidity pensions or 6. Where the legislation of a Member State old-age pensions or sickness benefits, provides expressly or by implication that unemployment benefits or benefits for accidents at work or occupational diseases accidents at work (except for pensions) which have occurred or have been con- have been awarded under the legislation of firmed subsequently shall be taken into another Member State and periods devoted consideration in order to assess the degree to the upbringing of children in the terri- of incapacity, to establish the right to any tory of another Member State shall likewise benefit, or to determine the amount of such give rise to prolongation of the aforesaid benefit, the competent institution of that reference period.' Member State shall also take into consider- ation accidents at work or occupational diseases which have occurred or have been confirmed subsequently under the legis- lation of another Member State, as if they 5. Article 61 of Regulation No 1408/71, had occurred or had been confirmed under headed 'Rules for taking into account the the legislation which it administers, but special features of certain legislations', only where: provides as far as is relevant:

The national legislation

2. All periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State... before the date of its application in the territory of that Member 8. The (Austrian) Allgemeines Sozialver- State... shall be taken into consideration for sicherungsgesetz (General Law on Social the determination of rights acquired under Security, hereafter 'ASVG') provides for the the provisions of this Regulation. grant of occupational disability pension to persons whose capacity for work has been reduced. Under those rules, entitlement to disability pension is conditional upon the completion by the person concerned of a qualifying period {Wartezeit). The qual-

3. Subject to the provisions of paragraph 1, 5 — OJ 1994 C 241, p. 21. a right shall be acquired under this Regu- 6 — OJ 1994 L 1, p. 3; see in particular Article 29, Protocol 1 lation even though it relates to a contin- and Annex VI.

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ifying period is calculated as the number of benefits 'stemming from the insurance months in which the person contributed to contingency of reduced capacity for work' pension insurance (Versicberungszeiten) that the qualifying period is 60 months. within a certain period ('the reference According to Paragraph 236(2), the 60 period') prior to the date from which the months of insurance which are necessary to pension entitlement is to run ('the relevant complete the qualifying period must fall date', Stichtag). within 'the final 120 calendar months prior to the relevant date' (the reference period).

...' (b) a disability pension stemming from statutory accident insurance on account of earning capacity reduced by at least 50%,

13. Second, the reference period of 120 months, within which the qualifying period must normally be completed, may be pro- longed by 'neutral months' (neutrale Mon- ate). Paragraph 236(3) provides: ...'

'Where neutral months (Paragraph 234) fall within the periods provided for in subparagraph (2), the periods shall be 15. According to the order for reference, prolonged by those months.' the Austrian courts interpret the words 'statutory accident insurance' in Paragraph 234(l)(2)(b) of the ASVG as a reference to accident insurance under Austrian law, thus excluding disability pensions granted 14. Paragraph 234 of the ASVG, entitled under the legislation of other States. 'Neutral months', provides:

'(1) The following periods, which are not periods of insurance, shall be regarded as being neutral: The facts and the questions referred

16. The facts, as set out in the order for reference, may be summarised as follows.

(2) Periods during which the insured per- son had an entitlement, awarded by notification, to 17. Johann-Franz Duchon, the applicant in the main proceedings, is an Austrian national born on 18 January 1949. On 8 September 1968 he suffered an accident while working as a holiday trainee in

Germany. Since that date he has been in cation for occupational disability pension receipt of a German accident-at-work with effect from 1 January 1998. That insurance benefit equivalent to a reduced application was rejected, again on the capacity for work of 50%. grounds that the applicant had not com- pleted the qualifying period under the ASVG. The applicant challenged that decision before the Landesgericht (Regional Court), Linz, and the Oberlandesgericht (Higher Regional Court), Linz. Having failed in substance, he applied for a review 18. The present case concerns the appli- of the judgment of the Oberlandesgericht, cant's attempt to obtain an occupational Linz, by the Oberster Gerichtshof. Before disability pension under the provisions of the Oberster Gerichtshof, the applicant did the ASVG. not contest the fact that he had not com- pleted the qualifying period for the grant of an occupational disability pension under the ASVG. He contended, however, that the judgment of the Oberster Gerichtshof of 15 April 1997 rested on a misunder- standing of the temporal scope of Commu- 19. The applicant initially applied for such nity law and that Paragraphs 235(3)(a), a pension with effect from 1 January 1994. 234(1)(2)(b) and 236(3) of the ASVG are That application was rejected by the contrary to Regulation No 1408/71 and defendant in the present case, the Pensions- Articles 39 and 42 EC. versicherungsanstalt der Angestellten (Sal- aried Employees' Pension Insurance Insti- tution), and by the lower Austrian courts. On 15 April 1997, the Oberster Gerichts- hof dismissed the applicant's claim essen- tially on the grounds that (i) he had not completed the qualifying period of 60 months within the reference period of 120 months laid down in the ASVG, (ii) he did 21. Considering that the case before it not fall within the exceptions laid down in raised issues of Community law, and that Paragraphs 235(3)(a), 236(3) and it was not bound by its earlier judgment 234(1)(2)(b) of the ASVG, and (iii) since between the parties, the Oberster Gerichts- the accident giving rise to the claim for hof decided to stay the main proceedings pension had taken place before 1 January and refer the following questions to this 1994 he could not rely on Community law. Court: A reference was not made to the Court of Justice in that case.

2. Are Articles 48(2) and 51 of the EC Treaty (now Articles 39(2) and 42 EC) and Regulation (EEC) No 1408/71 to be interpreted as precluding national rules which, for the qualifying period for a benefit stemming from the insur- ance contingency of reduced capacity for work not to apply, require not only that the insurance contingency is the 22. The applicant, the Austrian Govern- result of an accident at work, but also ment and the Commission have submitted that the insurance contingency materi- written observations. A hearing has not alised in respect of a person insured been held.

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28. That rule is however explicitly 'subject to the provisions of paragraph 1' according

25. All of those submitting observations in the present case take the view that the first 7 — See to that effect Case 44/65 Singer [1965] ECR 965, at p. 972 and Case C-275/96 Kuusijärvi [1998] ECR I-3419, question referred by the Oberster Gerichts- paragraphs 23 and 24 of the judgment. hof should be answered in the affirmative. I 8 — See for a similar interpretation of Article 53(3) of Regu- lation No 3 of 1958, Case 68/69 Brock [19701 ECR 171, agree with that proposition. paragraphs 6 to 9 of the judgment.

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9 — Or to recognition of certain periods as equivalent to contribution periods. See my Opinion in Kauer, cited in 33. On the one hand, there are no general note 3, at paragraph 67. provisions in the Regulation which oblige

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the Member States to recognise, for the The second question purpose of awarding disability pensions in respect of reduced capacity for work, accidents at work which take place in other Member States. Nor are there in the Regulation any specific provisions con- cerned with exceptions to national rules on qualifying periods. Article 61(5) and (6) of the Regulation lay down specific rules 35. By its second question the Oberster which oblige the authorities of the Member Gerichtshof asks, in substance, whether States to recognise, in certain circum- Articles 39 and 42 EC preclude national stances, accidents at work sustained in rules under which an exception to the other Member States. 10 It is clear however requirement of a qualifying period, as from the wording of those provisions, and condition for entitlement to occupational from the fact that, as the Commission disability pension, applies only where the points out, they are placed in Chapter 4 disability is the result of an accident at of Title III of the Regulation ('Accidents at work and the person suffering the accident work and occupational diseases') rather was at the time of the accident insured than in Chapter 2 ('Invalidity'), that they compulsorily or privately under the legis- do not apply in the context of occupational lation of the Member State concerned. disability pensions.

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obstacle to that freedom even if they apply 39. Under that provision, an exception to without regard to the nationality of the the requirement of a qualifying period, as workers concerned. condition for entitlement to occupational disability pension, applies only where the disability is the result of an accident at work and the person suffering the accident was at the time of the accident insured compulsorily or privately under the rel- evant provisions of the ASVG. As the 37. With regard to social security in par- Commission points out, migrant workers ticular, the Court has held that Articles 39 who sustain accidents while working in to 42 EC are intended to prevent a worker other Member States are in practice less who, by exercising his right of free move- likely to fulfil the requirement of insurance ment, has been employed in more than one under the ASVG than workers who have Member State from being placed in a worse remained in Austria. The resulting dis- position than one who has completed his advantage for migrant workers might dis- entire career in only one Member State. 12 courage Community nationals from exer- More specifically, the Court has accepted cising their right to freedom of movement. that the aim of Articles 39 to 42 EC would A provision such as Paragraph 235(3)(a) of not be attained if, as a consequence of the the ASVG thus constitutes an obstacle to exercise of their right to freedom of move- that freedom. ment, migrant workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State; such a consequence might discourage Community workers from exer- cising their right to freedom of movement and would therefore constitute an obstacle to that freedom. 13

The third question sory insurance and paid at least 36 monthly contributions within a reference period of 60 months before the invalidity arose. The German legislation provided for prolon­ gation of the reference period by 'non- computed periods', including periods in 42. By its third question, the Oberster which no contributions were made by the Gerichtshof asks the Court of Justice person concerned owing to, inter alia whether Articles 39(2) and 42 EC are to incapacity for work. However, no provi­ be interpreted as precluding Article 9a of sion was made for prolongation of the Regulation No 1408/71 and national rules reference period where events or circum­ which exclude in general any prolongation stances, corresponding to those which of the reference period in respect of the otherwise enabled the period to be pro­ period during which a pension is received longed, occurred in another Member State. or limit such prolongation to cases of entitlement to a pension stemming from the statutory accident insurance of the Member State concerned.

49. The Oberster Gerichtshof asks, more- over, whether Articles 39 and 42 EC are to be interpreted as precluding Article 9a of Regulation 1408/71. It appears that by that question, it seeks to ascertain whether Article 9a is contrary to Articles 39 and 42 EC and thus invalid in so far as it does 47. I agree with the applicant, the Austrian not require account to be taken, for the Government, the Commission and the purpose of prolonging the reference period, Oberster Gerichtshof that that reasoning of pensions which have been awarded may be transposed to the present case. under the legislation of another Member Rules of national law — such as Para- State. graphs 236(3) and 234(l)(2)(b) of the ASVG — which provide for prolongation of a reference period by periods in which the person concerned has been in receipt of an occupational disability pension under the law of the Member State in question, to the exclusion of pensions granted under the legislation of other Member States, are liable to affect migrant workers more gravely than persons who have not exer- cised their rights to freedom of movement. Those rules therefore have the effect of dissuading migrant workers from exercis- 50. In my view, it is not necessary for the ing their right of free movement. Moreover, Court of Justice to rule on that issue in the there is — as the Austrian Government present case since it is clear from the facts itself accepts — no objective justification as presented in the order for reference that for refusing prolongation of the reference the reply given to the first part of the third period in respect of periods of entitlement question gives the Oberster Gerichtshof to pension under the law of other Member sufficient guidance to give judgment in the States. main proceedings.

Additional comments: the temporal scope Österreichischer Gewerkschaftsbund 19 of Articles 39 and 42 EC and Saldanha and MTS 20 provisions of the EC Treaty are, in accordance with Article 2 of the Act of Accession, immedi- ately applicable from the date of accession and capable of applying to the present effects of situations which have arisen prior to accession. 5 1 . While the Austrian Government accepts that the provisions in issue in the present case, as interpreted hitherto by the Austrian courts, are contrary to Article 39 and 42 EC, it none the less doubts the relevance for the main proceedings of those Treaty provisions. Referring to Tsiotras, 16 it stresses that the Treaty does not have retroactive effect in Austria. A distinction must therefore be drawn between situations occurring before and after Community law entered into force in Austria, pursuant to the EEA Agreement, on 1 January 1994. Since the work-related accident giving rise to the main proceedings occurred in 1968, it follows that the freedom of movement provisions are inapplicable ratione tempo- ris to those proceedings. 53. The main proceedings concern a person who has applied for a disability pension with effect from a date which falls after the entry into force of the Treaty in Austria. In my view, the application of Articles 39 and 42 EC to such a situation does not entail retroactive application of the Treaty; it amounts to no more than the immediate application of Community law to facts 52. It is true that in accordance with a which have occurred in the past. Since the general principle of law, 17 provisions of act of deciding upon entitlement to a the EC Treaty do not have retroactive disability pension is of necessity based on effect. 18 However, as the Court held in facts which have occurred in the past, the application of Articles 39 and 42 EC to that act does not of itself involve the 16 — Case C-171/91 [1993] ECR I-2925. recognition of Community law rights with 17 — S e e , in particular, Case 98/78 Racke (1979) ECR 69, paragraph 20 of the judgment and, with regard to the retroactive effect, in any event where the temporal effect in the Member States of provisions of the applicant seeks a pension with effect only Treaty on European Union, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 42. 18 — See, with regard to Article 39 EC, Case C-I 95/98 Öster- reichheber Gewerkschaftsbund [2000] ECR I-10497, paragraph 55 of the judgment and, with regard to 19 — Cited in note 18, paragraph 55 of the judgment. Article 73B EC, Case C-464/98 Stefan [2001] ECR I-173, 20 — In the context of Article 12 EC, Case C-122/96 [1997] paragraph 2 1 . ECR I-5325, paragraph 14 of the judgment.

56. It follows therefore that a claim by a person such as the applicant in the main proceedings, who applies for a disability pension under the ASVG with effect from a 55. Moreover, that view is not at variance date which falls after the entry into force of with Tsiotras. 22 In that case a Greek the Treaty in Austria, falls within the scope national who before the accession of ratione temporis of Articles 39 and 42 EC. Greece to the Community had worked in Germany, but who on the date of accession 23 — See similarly, in the context of a national of a Member State who died before that State acceded to the European Community, Case C-131/96 Mora Romero [1997] ECR 21 — Cited in note 11. 1-3659, paragraphs 17 to 19 of the judgment. 22 — Cited in note 16. 24 — Cited in note 11.

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Conclusion

57. In the light of all the foregoing observations, I am of the opinion that the Court should answer the questions referred by the Oberster Gerichtshof as follows:

(1) The situation of a national of a Member State who was employed prior to the accession of that State in another Member State, and sustained an accident there, falls within the scope of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community where the person concerned applies for an occupational disability pension after the accession of the first Member State and the accident at work can have the effect of establishing entitlement to an occupational disability pension under the law of that State.