Opinion of Mr Advocate General Lenz delivered on 19 September 1991. - Commission of the European Communities v Kingdom of Belgium. - Social security - Deduction of sickness insurance contributions from supplementary pensions or any other advantage replacing a statutory old-age, retirement, service-related or survivor's pension - Persons residing in a Member State other than Belgium. - Case C-253/90.



European Court reports 1992 Page I-00531



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The case with which I am to deal now, like Case C-57/90, (1) also concerns the infringement of both the principle governing Regulation No 3 and the regulations subsequently adopted that the legislation of a single Member State only is to apply and the parallelism between the payment of contributions for sickness insurance and the granting of benefits in that respect.

2. As the Court is aware, the Commission has raised a complaint to that effect against the Kingdom of Belgium because in that country contributions towards the financing of the general health insurance scheme are also imposed on the recipients of supplementary pensions or any other benefits replacing a statutory old-age or survivors' pension who, pursuant to Community law, are subject to sickness insurance in another Member State.

3. In that respect, it should be noted at the outset that the provision in question was originally applied generally. Its scope was then restricted by the judgment in Case 275/83, (2) where it was held that, by deducting contributions from statutory old-age, retirement, service-related and survivors' pensions in respect of Community nationals residing in another Member State, the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty. Now the complaint is confined to the benefits mentioned in paragraph 2.

4. It should also be mentioned that it is common ground in this case that as the benefits from which contributions are deducted are based on industrial agreements they do not fall within the substantive scope of Regulation (EEC) No 1408/71; (3) to that extent, therefore, Article 33, which provides that the institution of a Member State which is responsible for payment of a pension is to be authorized to make deductions in respect of sickness insurance from the pension payable by such institution only in so far as the cost of the benefits (under Articles 27, 28, 28a, 29, 31 and 32) is to be borne by an institution of the said Member State, is not directly applicable.

5. Analysis of the arguments put forward in these proceedings yields the following observations.

6. (i) The defendant in these proceedings, too, challenges primarily the existence of the principle relied upon by the Commission, on the ground that it is not laid down in any Community measure.

7. There is no need for me to devote lengthy discussion to that point; I refer to the Opinion in Case C-57/90, where all that was necessary was said regarding the fact that the principle invoked by the Commission has been established by the case-law in the light of Community legislation. It is, of course, irrelevant - I say this with regard to a particular argument put forward in this case - whether the existence of such a principle may be ascertained in the legal orders of the Member States.

8. It is necessary to add only that the defendant is wrong in considering that if such a principle did exist there would be no need to refer to it in Article 13 of Regulation No 1408/71 and that Article 33 of the regulation, cited above, would be equally pointless. The fact that the principle in question is expressly mentioned in relation to the most important situations certainly does not justify the conclusion that it does not apply otherwise; such a conclusion may not be drawn in particular from Article 33, which refers only to pensions, since Regulation No 1408/71 could scarcely mention contributions deducted from benefits which do not even fall within the substantive scope of the regulation.

9. (ii) In so far as the defendant, like the defendant in Case C-57/90, refers to the special nature of the contribution in question (a solidarity contribution; a quasi-fiscal contribution) and draws attention to the characteristics that the contribution is not payable where overall income remains below a certain level and that family responsibilities also play a role (thus the relevant factors are unconnected with social security but are typical of tax law), I would repeat the remarks already made in the Opinion in Case C-57/90. That is to say, it must be remembered that Community law makes no distinction according to the nature of the contribution, and it is significant, moreover, that the contribution at issue today is governed by the same provision as the contributions which formed the subject-matter of Case 275/83 (Law of 9 August 1963 in the version amended by the Law of 8 August 1980), which makes it reasonable to assume that it has the same legal nature as those contributions.

10. (iii) The same applies to the complaint that the Commission' s point of view leads to unequal treatment because only recipients of supplementary pensions residing in Belgium would be liable to pay sickness insurance contributions.

11. In that respect also, everything necessary has already been said in the Opinion in Case C-57/90. In particular, it was necessary to agree with the view expressed by the Commission, which indicated that even the application of Articles 27 to 32 of Regulation No 1408/71 could put workers who failed to make use of their freedom of movement at a certain disadvantage, that Regulation No 1408/71 is concerned not to maintain equal treatment of workers in general but to protect migrant workers against disadvantages that could arise from the application of more than one system of legislation.

12. (iv) Finally, in so far as the defendant complains that the application itself refers only to Article 13 in conjunction with Article 33 of Regulation No 1408/71 without mentioning either the general principle that the legislation of a single Member State alone is to apply or parallelism, I perceive therein perhaps a certain irregularity, but no ground at all to justify dismissing the application. The essential thing is - as the defendant itself acknowledged in the oral procedure - that the abovementioned general principle is certainly mentioned in the grounds for the application. There can thus be no difficulty in determining the precise content of the application, as it has been appropriate to do on occasion in other cases, where the Court has taken the necessary steps to interpret the content of the application in its entirety (see for example the judgment in Case 2/78 Commission v Belgium [1979] ECR 1761, at p. 1783).

13. (v) I therefore propose that in this case, too, the Court should declare that, by deducting sickness insurance contributions from supplementary retirement benefits or any other benefits replacing a statutory old-age, retirement, service-related or survivors' pension for Community nationals residing in another Member State under whose legislation they are entitled to sickness benefits, the Kingdom of Belgium has failed to fulfil its obligations under Regulation (EEC) No 1408/71. The defendant in this case, too, should be ordered to pay the costs of the proceedings.

(*) Original language: German.

(1) - Case C-57/90 Commission v France [1992] ECR I-75.

(2) - Case 275/83 Commission v Belgium [1985] ECR 1097.

(3) - Regulation (EEC) No 1408/71 of the Council of 14 June 1971, consolidated version in OJ 1983 L 230, p. 1.