Judgment of the Court (Sixth Chamber) of 5 July 1988. - Felix Borowitz v Bundesversicherungsanstalt für Angestellte. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Social security - Regulation no. 1408/71 - Social security convention concluded between a Member State and a non-member country. - Case 21/87.



European Court reports 1988 Page 03715



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Social security for migrant workers - Old-age and death insurance - Calculation of periods of insurance - Assimilation of periods of insurance completed under the legislation of a non-member country to periods completed under German legislation for the purpose of determining the pension payable by the German institutions - Permissible - Taking into account for the application of Community legislation - Excluded

( Regulation No 1408/71 of the Council, Art . 46 ( 1 ) )

Summary

Regulation No 1408/71 permits a German insurance institution, in deciding whether to take interrupting periods ( Ausfallzeiten ) into account for purposes of the German legislation on social security, to treat as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme not only compulsory contributions paid in other Member States but also compulsory contributions and insurance in a non-member country with which the Federal Republic of Germany has concluded a convention on the reciprocal assimilation of insurance periods .

On the other hand, periods completed under the legislation of a non-member country do not, merely because they have been taken into account by the German institution pursuant to a bilateral convention concluded by the Federal Republic of Germany, become periods "completed under the legislation of the Member States" within the meaning of Article 46 of the regulation and, consequently, no provision requires the institutions of the other Member States to take account of them when making calculations under Article 46 and the fact that the German institution has taken those periods into acount does not entail any increase in their obligations .

Parties

In Case 21/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht ( Federal Social Court ) for a preliminary ruling in the proceedings pending before that court between

Felix Borowitz

and

Bundesversicherungsanstalt fuer Angestellte ( Federal Insurance Office for Clerical Staff )

on the interpretation of Council Regulation ( EEC ) No 1408/71 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 ), as amended in particular by Council Regulation ( EEC ) No 1390/81 of 12 May 1981 extending that regulation to self-employed persons and members of their families ( Official Journal 1981, L 143, p . 1 ),

THE COURT ( Sixth Chamber )

composed of : O . Due, President of the Chamber, T . Koopmans, K . Bahlmann, C . Kakouris and T . F . O' Higgins, Judges,

Advocate General : Sir Gordon Slynn

Registrar : D . Louterman, Administrator

after considering the observations submitted on behalf of

the Commission of the European Communities, by Juergen Grunwald, a member of its Legal Department, acting as Agent,

the Government of the Federal Republic of Germany, represented in the written procedure by Alfred Dittrich, Oberregierungsrat, and in the oral procedure by Martin Seidel, Ministerialrat, both of the Federal Ministry for Economic Affairs,

the United Kingdom of Great Britain and of Northern Ireland, by H.R.L . Purse, of the Treasury Solicitor' s Department, Queen Anne' s Chambers, acting as Agent,

the Bundesversicherungsanstalt fuer Angestellte, by Tilo Herrmann, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on

11 February 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 19 April 1988,

gives the following

Judgment

Grounds

1 By order of 25 November 1986 which was received at the Court on 27 January 1987, the Bundessozialgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Council Regulation No 1408/71 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 ) as amended in particular by Council Regulation No 1390/81 of 12 May 1981 extending that regulation to self-employed persons and members of their family ( Official Journal 1981, L 143, p . 1 ).

2 That question was raised in proceedings between Felix Borowitz and the Bundesversicherungsanstalt fuer Angestellte concerning the amount of old-age pension paid to him by that institution .

3 It is apparent from the order making the reference that Mr Borowitz, who was born in Poland in 1910 and, after a period of higher education, was first affiliated to the Polish pension scheme . During the war years he was a prisoner of war and thereafter worked in the Netherlands where he paid contributions to the Netherlands pension insurance system . Between 1952 and the date of his retirement he worked in the Federal Republic of Germany where he became a naturalized citizen and made contributions to the scheme provided for by the Angestelltenversicherungsgesetz ( German Clerical Staff Insurance Law ) which is administered by the Bundesversicherungsanstalt fuer Angestellte, the defendant institution .

4 Since the periods of insurance completed by Mr Borowitz in the Federal Republic of Germany entitled him to old-age benefits, the defendant institution granted him a pension . Pursuant to the second subparagraph of Article 46 ( 1 ) of Regulation No 1408/71, the amount of the pension was calculated on a pro rata basis by reference to the periods of insurance completed in the Netherlands and the Federal Republic of Germany since that amount was higher than the amount resulting from the periods completed in the Federal Republic of Germany alone .

5 To calculate that sum the defendant institution took into account as an "interrupting period" ( Ausfallzeit ), pursuant to the Angestelltenversicherungsgesetz, the period of school and university studies completed by Mr Borowitz in Poland after he had attained the age of 16 years .

6 For the interrupting periods to be taken into account, the abovementioned German law requires that a semi-complete contribution record (" Halbbelegung ") be attained, that is to say that contributions must have been made in respect of an occupation for at least half the period between entering the insurance scheme and the materialization of the risk .

7 That condition governing the taking into account of interrupting periods under German legislation is the subject of a specific provision in Annex VI to Regulation No 1408/71 . Article 2 ( a ) of part C, Germany, of that annex provides that in order to determine whether interrupting periods should be taken into account as such, compulsory contributions paid under the legislation of another Member State and insurance under the insurance scheme of another Member State are to be treated as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme .

8 In Mr Borowitz' s case the requirement of a semi-complete contributions record was met since for more than half of the period between his entry into the Netherlands insurance scheme and the materialization of the risk he had paid contributions to the Netherlands and German schemes .

9 However, after the entry into force of the Convention between the Federal Republic of Germany and the People' s Republic of Poland on pension and accident insurance, signed in Warsaw on 9 October 1975 ( Bundesgesetzblatt 1976 II, p . 396 ) the defendant institution proceeded to recalculate the pension paid to Mr Borowitz .

10 Under that Convention, when a pension is awarded, the German social security institutions are to take into consideration insurance periods and assimilated periods completed in Poland as if they had been completed in the Federal Republic of Germany .

11 The amount of the pension calculated pursuant to that Convention on the basis of periods of insurance completed in the Federal Republic of Germany and the periods of insurance and assimilated periods completed in Poland was higher than the amount which Mr Borowitz had previously received and consequently he was thereafter paid the higher sum .

12 In determining the new amount the defendant institution first took into account as an interrupting period the period of school and university education completed by Mr Borowitz in Poland . Subsequently, however, it concluded that the contributions paid by Mr Borowitz to the Polish and German schemes were not sufficient to give him a semi-complete contributions record for the period between his entry into the Polish insurance scheme and the materialization of the risk .

13 Mr Borowitz therefore asked that his contributions to the Netherlands scheme also be taken into account to meet the requirement of a semi-complete contribution record . The defendant institution refused to take those contributions into account on the ground that it was required to make two separate determinations of the amount of the pension, one solely on the basis of German legislation and the Convention between Germany and Poland and the other solely on the basis of German legislation and Community law which excluded any integrated approach .

14 An appeal on a point of law in respect of the dispute was brought before the Bundessozialgericht which took the view that the position taken by the defendant institution was not justified by national law . The Bundessocialgericht stated that its own case-law implied an obligation in principle, when determining the amount of a pension, to consider as a whole all the relevant factors under the appropriate legislation and then to make an integrated determination of the pension . It further held that the provisions of the Convention between Germany and Poland could not preclude such an integrated determination of the amount of the pension . The Bundessozialgericht held that it remained to be decided whether or not Community law precluded such an integrated determination on the combined basis of national law, the abovementioned bilateral convention and Regulation No 1408/71 and therefore decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling :

"Does 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 permit a German insurance institution, in deciding whether to take interrupting periods into account, to treat as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme not only compulsory contributions paid under the legislation of other Member States and insurance under the insurance schemes of other Member States but also compulsory contributions and insurance in a non-member country ( Poland ) with which the Federal Republic of Germany has concluded a convention on the reciprocal assimilation of insurance periods?"

15 Reference is made to the Report for the Hearing for a fuller account of the relevant national provisions, the facts of the main proceedings and the observations submitted to the Court which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

16 The Bundesversicherungsanstalt fuer Angestellte and the Government of the Federal Republic of Germany consider that the Bundessozialgericht' s question should be answered in the negative . The problem raised by that question has already been resolved by a decision taken in January 1964 by the Administrative Commission on Social Security for Migrant Workers regarding cases where one of the Member States concerned is bound by a bilateral convention concluded with a non-member country . That decision requires the Member State which has not entered into the convention to determine the benefit pursuant to Regulations Nos 3 and 4, since superseded by Regulation No 1408/71, and requires the Member State which has entered into the convention to make a separate calculation of the proportionate amount payable within the framework of the EEC and that payable within the framework of the Convention and then to award the higher sum . To combine the provisions of a bilateral convention with those of a Community regulation would also be contrary to the general principles of public international law and Community law since each of those instruments constitutes an independent coordinating system which is specifically adapted to the systems which it coordinates .

17 The United Kingdom takes the view, having regard to its observations as formulated at the hearing, that an affirmative reply may be given to the Bundessozialgericht' s question but only in so far as the assimilation of periods completed in non-member countries is possible without producing any effect in law or in practice on the obligations which Regulation No 1408/71 imposes on the other Member States of the Community .

18 Finally, the Commission submits that it is possible to infer an affirmative reply to the Bundessozialgericht' s question from the abovementioned provisions of Annex VI to Regulation No 1408/71, under which contributions paid under the legislation of another Member State are to be treated as contributions paid under German legislation . The expression "German legislation" must be interpreted in the light of the definition of the expression "legislation" set out in Article 1 ( j ) of the regulation which covers inter alia statutes of the Member States, including therefore statutes whereby the Member States have ratified a bilateral convention on social security . At the hearing the Commission further stated that the issue was simply a problem of German domestic law . The provision concerning interrupting periods and semi-complete contribution records has no equivalent in the laws of the other Member States . No provision of the regulation precludes German institutions from taking the Polish periods into account and there is no provision which obliges the institutions of the other Member States to do so .

19 It must be noted first that the Court has held ( see the judgment of 14 May 1981 in Case 98/80 Giuseppe Romano v Institut national d' assurance maladie - invalidité (( 1981 )) ECR 1241 ) that decisions of the Administrative Commission of the European Communities on Social Security for Migrant Workers do not have the force of law and cannot therefore be an authoritative guide to the interpretation of a regulation adopted by the Council . Furthermore, at the hearing the Commission pointed out that the abovementioned decision was not one of the decisions of the Administrative Commission still in force after Regulation No 1408/71 became applicable .

20 It is thus necessary to place the problem raised by the national court' s question in the context of the rules laid down by Regulation No 1408/71 .

21 In this respect it must be first stressed that a situation, such as that in issue in the main proceedings, of a worker who is a national of a Member State and who has been subject to the social security legislation of several Member States falls within the scope ratione personae of Regulation No 1408/71 as defined in Article 2 ( 1 ) thereof .

22 Secondly, it must be pointed out that where, as in the main proceedings, the case relates to the award of an old-age benefit to which entitlement exists without it being necessary to have recourse to the aggregation of periods of insurance or of periods of residence completed under the legislation of other Member States, it falls within the rules contained in Article 46 ( 1 ) of Regulation No 1408/71 .

23 The problem raised having been defined in this way, it must be noted that, as the Court has stated on many occasions ( see for example judgment of 12 July 1979 in Case 266/78 Brunori v Landesversicherungsanstalt Rheinprovinz (( 1979 )) ECR 2705; judgment of 12 June 1980 in Case 733/79 Caisse de Compensation des allocations familiales des régions de Charleroi et de Namur v Laterza (( 1980 )) ECR 1915; and judgment of 9 July 1980 in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben (( 1980 )) ECR 2205 ), Regulation No 1408/71 does not set up a common scheme of social security but allows different national schemes to exist and its sole objective is to coordinate those national schemes .

24 It should also be pointed out that the Court has consistently held ( see in particular the judgment of 10 January 1980, Case 69/79 Jordens-Vosters v Bedrijfsvereniging voor de Leder -en Lederwerkende Industrie (( 1980 )) ECR 75 ) that Regulation No 1408/71 may not be interpreted as prohibiting national legislation from granting social security benefits broader than those provided for by the application of that regulation .

25 In making the calculations provided for by Article 46 ( 1 ) the competent institution determines the periods of insurance to be taken into account in pursuance of its legislation in accordance with its own domestic law subject only to the express provisions of the regulation . However, no provision of the regulation precludes the German institution from treating periods of insurance completed under Polish legislation as equivalent to periods of insurance completed under German legislation or from taking account, when examining whether the requirement of a semi-complete contributions record has been met, not merely of periods completed under German legislation and under Polish legislation but also periods completed under the legislation of another Member State .

26 On the other hand, such periods completed under the legislation of a non-member country do not, merely because they have been taken into account by the German institution pursuant to a bilateral convention concluded by the Federal Republic of Germany, become periods "completed under the legislation of the Member States" within the meaning of Article 46 of the regulation . Consequently, no provision requires the institutions of the other Member States to take account of them when making calculations under Article 46 and the fact that the German institution has taken those periods into account does not entail any increase in their obligations .

27 Consequently, the answer to the question should be that Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community permits a German insurance institution, in deciding whether to take interrupting periods ( Ausfallzeiten ) into account for purposes of the German legislation on social security, to treat as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme not only compulsory contributions paid in other Member States and insurance under the insurance schemes of other Member States but also compulsory contributions and insurance in a non-member country ( in this case, Poland ) with which the Federal Republic of Germany has concluded a convention on the reciprocal assimilation of insurance periods .

Decision on costs

Costs

28 The costs incurred by the Government of the Federal Republic of Germany, by the United Kingdom of Great Britain and Northern Ireland and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings 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 ( Sixth Chamber )

in answer to the questions referred to it by the Bundessozialgericht by order of 25 November 1986 hereby rules :

Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community permits a German insurance institution, in deciding whether to take interrupting periods ( Ausfallzeiten ) into account for purposes of the German legislation on social security, to treat as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme not only compulsory contributions paid in other Member States and insurance under the insurance schemes of other Member States but also compulsory contributions and insurance in a non-member country ( in this case, Poland ) with which the Federal Republic of Germany has concluded a convention on the reciprocal assimilation of insurance periods .