61981CJ0055_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 55/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), LIEGE, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
GEORGES VERMAUT
AND
OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES
Subject of the case
ON THE INTERPRETATION OF ARTICLE 48 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),
Grounds
1 BY JUDGMENT OF 25 FEBRUARY 1981, WHICH WAS RECEIVED AT THE COURT ON 11 MARCH 1981, THE SEVENTH CHAMBER OF THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), LIEGE, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THESE QUESTIONS WERE RAISED IN CONNECTION WITH A DISPUTE CONCERNING THE REFUSAL OF THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( NATIONAL PENSION OFFICE FOR EMPLOYED PERSONS, HEREINAFTER REFERRED TO AS ' ' THE OFFICE ' ' ), A BELGIAN SOCIAL SECURITY BODY, TO TAKE INTO ACCOUNT IN AWARDING A RETIREMENT PENSION PERIODS OF EMPLOYMENT OF LESS THAN A YEAR COMPLETED IN MEMBER STATES OTHER THAN BELGIUM SO THAT THE RECIPIENT OF THAT PENSION WAS DEPRIVED OF THE INCREASE FOR THE WAR YEARS 1940 TO 1945 PROVIDED FOR BY BELGIAN LEGISLATION .
3 THE RIGHT TO THE RETIREMENT PENSION IS GRANTED TO THE CLAIMANT SOLELY ON THE BASIS OF HIS PERIODS OF INSURANCE IN BELGIUM WHICH ARE SUFFICIENT BY THEMSELVES ALONE FOR HIM TO ACQUIRE THAT RIGHT . THE FACT THAT THE CLAIMANT WORKED FOR TEN MONTHS IN LONDON IN 1938 AND FOR EIGHT MONTHS IN HEIDELBERG IN 1939 AND PAID CONTRIBUTIONS AND THAT HIS WORK WAS INTERRUPTED EACH TIME BECAUSE HE WAS CALLED UP FOR SERVICE IN THE BELGIAN ARMY WAS ACCORDINGLY NOT TAKEN INTO ACCOUNT .
4 IN SUPPORT OF HIS APPLICATION TO THE NATIONAL COURT THE CLAIMANT INVOKED ARTICLE 48 OF REGULATION NO 1408/71 WHICH PRESCRIBES THE DETAILED PROCEDURES FOR TAKING ACCOUNT OF PERIODS OF INSURANCE OF LESS THAN A YEAR .
5 THE OFFICE CONSIDERED THAT THE PERIODS OF LESS THAN A YEAR SHOULD BE TAKEN INTO ACCOUNT FOR THE ACQUISITION OF THE RIGHT TO THE PENSION BUT THAT THEY SHOULD NOT BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF DETERMINING THE PRO RATA PENSION . SINCE THE PLAINTIFF ACQUIRED THE RIGHT TO THE NATIONAL PENSION IN BELGIUM IT WAS UNNECESSARY TO TAKE ACCOUNT OF PERIODS OF EMPLOYMENT OF LESS THAN A YEAR COMPLETED IN OTHER MEMBER STATES .
6 FURTHERMORE THE INSURANCE BODIES OF THE UNITED KINGDOM AND OF THE FEDERAL REPUBLIC OF GERMANY REFUSED TO RECOGNIZE THE ACQUISITION OF A RIGHT TO A NATIONAL PENSION BECAUSE OF THE SHORT DURATION OF THE CLAIMANT ' S PERIODS OF CONTRIBUTION .
7 IN ORDER TO SETTLE THAT DISPUTE THE TRIBUNAL DU TRAVAIL SUBMITTED THE FOLLOWING PRELIMINARY QUESTIONS TO THE COURT :
1 . WHERE THE LENGTH OF THE PERIODS OF INSURANCE UNDER THE LEGISLATION OF A MEMBER STATE DOES NOT AMOUNT TO ONE YEAR, IS THE COMPETENT INSTITUTION - IN THIS CASE THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES - PERMITTED NOT TO TAKE ACCOUNT OF THOSE PERIODS BECAUSE ENTITLEMENT TO A NATIONAL PENSION EXISTS ; OR MUST THE COMPETENT INSTITUTION TAKE THOSE PERIODS INTO ACCOUNT AS IF THEY HAD BEEN COMPLETED UNDER THE LEGISLATION OF THE STATE OF THAT INSTITUTION?
2.IN THE CASE OF PENSIONS TAKING EFFECT AFTER 1 JANUARY 1977, BELGIAN LAW REQUIRES PAYMENT OF CONTRIBUTIONS . IF BELGIUM MUST REGARD THE PERIODS IN QUESTION AS HAVING BEEN COMPLETED UNDER ITS LEGISLATION, IS IT ENTITLED TO
REQUIRE PAYMENT OF CONTRIBUTIONS BY THE PLAINTIFF, MAY IT REQUEST TRANSFER OF CONTRIBUTIONS PAID TO THE FEDERAL REPUBLIC OF GERMANY AND THE UNITED KINGDOM OR MUST IT TAKE THE PERIODS IN QUESTION INTO CONSIDERATION WITHOUT BEING ABLE TO CLAIM ANYTHING FROM THE PLAINTIFF, THE FEDERAL REPUBLIC OF GERMANY OR THE UNITED KINGDOM?
FIRST QUESTION
8 BY QUESTION 1 THE TRIBUNAL DU TRAVAIL, LIEGE, WISHES TO ESTABLISH WHETHER THE BELGIAN INSTITUTION WHICH IS COMPETENT IN RETIREMENT PENSION MATTERS MUST TAKE ACCOUNT OF PERIODS OF INSURANCE OF LESS THAN A YEAR COMPLETED UNDER THE LEGISLATION OF TWO OTHER MEMBER STATES IN WHICH SUCH PERIODS DO NOT CONFER ENTITLEMENT TO PENSION RIGHTS OR WHETHER THAT INSTITUTION MAY GRANT THE PENSION ON THE BASIS OF BELGIAN LEGISLATION ALONE WITHOUT TAKING ACCOUNT OF THE PERIODS OF INSURANCE COMPLETED IN THOSE TWO STATES .
9 ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT THE MEMBER STATES ARE NOT BOUND TO TAKE ACCOUNT OF PERIODS OF INSURANCE OF LESS THAN A YEAR COMPLETED UNDER THEIR LEGISLATION IF UNDER THAT LEGISLATION NO RIGHT TO BENEFITS IS ACQUIRED BY VIRTUE ONLY OF THOSE PERIODS .
10 ON THE OTHER HAND ACCORDING TO THE WORDING OF ARTICLES 48 ( 2 ) ' ' THE COMPETENT INSTITUTION OF EACH OF THE OTHER MEMBER STATES CONCERNED SHALL TAKE INTO ACCOUNT THE PERIODS REFERRED TO IN PARAGRAPH ( 1 ), FOR THE PURPOSES OF APPLYING THE PROVISIONS OF ARTICLE 46 ( 2 ) EXCEPTING THOSE OF SUBPARAGRAPH ( B ) ' ', WHICH LATTER PROVISIONS CONCERN THE CALCULATION OF THE ACTUAL AMOUNT OF THE BENEFIT ON A PRO RATA BASIS .
11 THESE TWO PROVISIONS, TAKEN TOGETHER, SHOW CLEARLY THAT THE COMPETENT INSTITUTION OF A MEMBER STATE, IN THIS CASE THE OFFICE, MUST CALCULATE THE AMOUNT OF THE THEORETICAL PENSION BY APPLYING THE PROVISIONS OF NATIONAL LEGISLATION ( ARTICLE 46 ( 1 )) ON THE BASIS OF THE PERIODS OF INSURANCE COMPLETED IN THE MEMBER STATE CONCERNED AS WELL AS IN THE OTHER MEMBER STATES ( ARTICLE 48 ( 2 )) AND REFRAIN FROM ANY PRO RATA CALCULATION .
12 ACCORDINGLY THE REPLY TO QUESTION 1 MUST BE THAT PURSUANT TO ARTICLE 48 ( 2 ) OF REGULATION NO 1408/71 THE NATIONAL INSTITUTION COMPETENT IN RETIREMENT PENSION MATTERS MUST TAKE ACCOUNT OF PERIODS OF INSURANCE OF LESS THAN A YEAR, COMPLETED BY THE WORKER UNDER THE LEGISLATION OF OTHER MEMBER STATES EVEN IF THE RIGHT TO A PENSION ARISES UNDER NATIONAL LEGISLATION ALONE .
SECOND QUESTION
13 BY QUESTION 2 THE TRIBUNAL DU TRAVAIL, LIEGE, WISHES TO ESTABLISH WHETHER A MEMBER STATE MAY, ON THE GROUND THAT ITS NATIONAL LEGISLATION RENDERS THE AWARD OF A PENSION CONDITIONAL ON THE PAYMENT OF CONTRIBUTIONS, REQUIRE FROM THE WORKER PAYMENT OF CONTRIBUTIONS CORRESPONDING TO THE PERIODS OF INSURANCE REFERRED TO IN ARTICLE 48 OF REGULATION NO 1408/71 AND COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES OR REQUEST THE TRANSFER OF THE CONTRIBUTIONS IN RESPECT OF SUCH PERIODS WHICH HAVE BEEN PAID IN SUCH MEMBER STATES .
14 REGULATION NO 1408/71 DOES NOT CONTAIN ANY PROVISION ON THE PAYMENT BY THE WORKER OF CONTRIBUTIONS IN RESPECT OF THE PERIODS OF INSURANCE IN QUESTION . THE OBJECTIVES PURSUED BY THE REGULATION IN QUESTION IMPLY THAT THE OBLIGATIONS FLOWING FROM THAT REGULATION FOR THE BENEFIT OF MIGRANT WORKERS SHOULD BE UNIFORMLY ENFORCED IN ALL MEMBER STATES . THE IMPOSITION OF ADDITIONAL CONDITIONS, SUCH AS THAT OF PAYMENT OF THE CONTRIBUTIONS BY THE WORKER, WOULD ACCORDINGLY BE CONTRARY TO THE SYSTEM ESTABLISHED BY THE REGULATION AND MIGHT RESULT IN INEQUALITY OF TREATMENT OF RECIPIENTS IN THE VARIOUS MEMBER STATES .
15 THE TRANSFER OF CONTRIBUTIONS PAID IN THE OTHER MEMBER STATES IS ACCORDINGLY NOT PRESCRIBED BY THE ABOVE-MENTIONED REGULATION . SUCH A TRANSFER IS ALSO CONTRARY TO THE SYSTEM ESTABLISHED BY THE REGULATION WHICH, IN ORDER TO SIMPLIFY MATTERS, PERMITTED THAT, BY REASON OF THEIR RELATIVELY INSIGNIFICANT AMOUNT, CHARGES WHICH MUST BE BORNE BY THE INSTITUTIONS CONCERNED OF THE MEMBER STATES WHICH ARE REQUIRED TO TAKE ACCOUNT, IN DETERMINING THE PENSIONS WHICH THEY AWARD, OF PERIODS OF INSURANCE OF LESS THAN A YEAR COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES SHOULD BE COMPENSATED ON A FIXED SCALE AND DID NOT JUSTIFY THE ESTABLISHMENT BETWEEN INSTITUTIONS OF THE MEMBER STATES OF A SYSTEM OF REIMBURSEMENT OF CONTRIBUTIONS IN RESPECT OF THOSE SHORT PERIODS . THE ADDITION OF FURTHER CONDITIONS
ACCORDINGLY CANNOT BE PERMITTED ON THE BASIS OF THE INTERPRETATION OF A PROVISION WHICH REMAINS SILENT ON THAT POINT .
16 THE REPLY TO QUESTION 2 SUBMITTED BY THE NATIONAL COURT MUST ACCORDINGLY BE THAT A MEMBER STATE IS NOT ENTITLED TO REQUIRE THE PAYMENT BY THE WORKER OF CONTRIBUTIONS CORRESPONDING TO THE PERIODS OF INSURANCE REFERRED TO IN ARTICLE 48 OF REGULATION NO 1408/71 AND COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES OR THE TRANSFER OF THE CONTRIBUTIONS FOR THOSE PERIODS WHICH MAY HAVE BEEN PAID IN SUCH MEMBER STATES .
Decision on costs
COSTS
17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE ; AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL, LIEGE, BY JUDGMENT OF 25 FEBRUARY 1981, HEREBY RULES :
1 . PURSUANT TO ARTICLE 48 ( 2 ) OF REGULATION NO 1408/71 THE NATIONAL INSTITUTION COMPETENT IN RETIREMENT PENSION MATTERS MUST TAKE ACCOUNT OF PERIODS OF INSURANCE OF LESS THAN A YEAR COMPLETED BY THE WORKER UNDER THE LEGISLATION OF OTHER MEMBER STATES EVEN IF THE RIGHT TO A PENSION ARISES UNDER NATIONAL LEGISLATION ALONE .
2.A MEMBER STATE IS NOT ENTITLED TO REQUIRE THE PAYMENT BY THE WORKER OF CONTRIBUTIONS CORRESPONDING TO THE PERIODS OF INSURANCE REFERRED TO IN ARTICLE 48 OF REGULATION NO 1408/71 AND COMPLETED UNDER THE
LEGISLATION OF OTHER MEMBER STATES OR THE TRANSFER OF THE CONTRIBUTIONS FOR THOSE PERIODS WHICH MAY HAVE BEEN PAID IN SUCH MEMBER STATES .