Judgment of the Court of 8 October 1980. - Peter Überschär v Bundesversicherungsanstalt für Angestellte. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - German voluntary insurance. - Case 810/79.



European Court reports 1980 Page 02747

Greek special edition Page 00043

Spanish special edition Page 00899



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - VOLUNTARY INSURANCE - SPECIAL WAYS OF GIVING EFFECT TO CERTAIN LAWS - FEDERAL REPUBLIC OF GERMANY - PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 - CONDITION OF RETROGRESSIVE BUYING-IN LAID DOWN BY NATIONAL LEGISLATION - SCOPE - GERMAN NATIONAL WHO HAS PAID CONTRIBUTIONS TO OLD-AGE PENSION INSURANCE IN ANOTHER MEMBER STATE

( PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1392/74 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - VOLUNTARY INSURANCE - SPECIAL WAYS OF GIVING EFFECT TO CERTAIN LAWS - FEDERAL REPUBLIC OF GERMANY - PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 - CONDITION OF RETROGRESSIVE BUYING-IN LAID DOWN BY NATIONAL LEGISLATION - DISCRIMINATION AGAINST GERMAN WORKERS AND FOREIGNERS RESIDING IN THE FEDERAL REPUBLIC OF GERMANY - NONE

( PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1392/74 )

3 . COMMUNITY LAW - PRINCIPLES - EQUAL TREATMENT - CONCEPT

Summary

1 . IT FOLLOWS FROM THE OBJECTS AND THE WORDING OF PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 ( AS AMENDED BY REGULATION NO 1392/74 ) THAT THOSE PROVISIONS AND IN PARTICULAR THE FIRST SENTENCE OF PARAGRAPH 9 ARE INTENDED TO ENABLE THE REQUIREMENT OF RETROGRESSIVE BUYING-IN SET FORTH IN ARTICLE 49A ( 2 ) OF THE ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ ( CLERICAL STAFF PENSION REFORM LAW ), AS AMENDED BY THE RENTENREFORMGESETZ ( PENSION REFORM LAW ) OF 16 OCTOBER 1972 , TO CONTINUE TO EXIST IN THE LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY EVEN THOUGH THE MOST RECENT PERIODS CORRESPOND TO PERIODS IN WHICH CONTRIBUTIONS WERE COMPULSORY IN ANOTHER MEMBER STATE . WHENEVER A GERMAN NATIONAL OR A NATIONAL OF ANOTHER MEMBER STATE RESIDING IN THE FEDERAL REPUBLIC OF GERMANY CLAIMS THE BENEFIT OF ARTICLE 49A ( 2 ) THE CONTRIBUTION PERIODS IN OTHER MEMBER STATES ARE NOT THEREFORE REGARDED AS ' ' COVERED ' ' BUT MUST BE BOUGHT IN FIRST IF THEY ARE MORE RECENT THAN NATIONAL PERIODS WHICH ARE IN FACT NOT COVERED . ON THE OTHER HAND , THAT REQUIREMENT MAY NOT BE APPLIED AGAINST THE PERSONS REFERRED TO IN PARAGRAPH 8 ( B ) AND ( C ) WHO , MOREOVER , ARE NOT IN ANY EVENT ALLOWED TO BUY-IN PERIODS COMPLETED IN OTHER MEMBER STATES .

CONSEQUENTLY A GERMAN NATIONAL WHO HAS PAID CONTRIBUTIONS TO OLD-AGE PENSION INSURANCE IN ANOTHER MEMBER STATE AND WHO SUBSEQUENTLY WISHES TO PAY A POSTERIORI , BUT WITH RETROACTIVE EFFECT WITHIN THE MEANING OF ARTICLE 49A ( 2 ) OF THE CLERICAL STAFF PENSION REFORM LAW GERMAN PENSION CONTRIBUTIONS IN RESPECT OF PREVIOUS PERIODS , MAY BE REQUIRED TO PAY GERMAN CONTRIBUTIONS IN RESPECT OF PERIODS COVERED BY CONTRIBUTIONS IN ANOTHER MEMBER STATE .

2 . THE DIFFERENCE IN TREATMENT WHICH IS INDISPUTABLY APPLIED BY PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 ( AS AMENDED BY REGULATION NO 1392/74 ) BETWEEN , ON THE ONE HAND , GERMAN WORKERS AND FOREIGNERS RESIDING IN THE FEDERAL REPUBLIC OF GERMANY - REFERRED TO IN THE FIRST SENTENCE OF PARAGRAPH 9 - AND , ON THE OTHER HAND , WORKERS FROM OTHER MEMBER STATES - REFERRED TO IN THE SECOND SENTENCE OF PARAGRAPH 9 - DOES NOT CONSTITUTE DISCRIMINATION AGAINST THE FORMER .

AN EXAMINATION OF THE ADVANTAGES AND DRAWBACKS OF THE TWO LEGAL SITUATIONS WHICH HAVE TO BE COMPARED SHOWS IN FACT THAT THEY CANNOT BE REGARDED AS BEING MORE FAVOURABLE TO ONE THAN TO THE OTHER CATEGORY OF WORKERS CONCERNED .

3 . THE GENERAL PRINCIPLE OF EQUALITY , OF WHICH THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY IS MERELY A SPECIFIC ENUNCIATION , IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THIS PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .

Parties

IN CASE 810/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN

PETER UBERSCHAR , HASSELT , BELGIUM ,

PLAINTIFF AND RESPONDENT IN THE APPEAL ON A POINT OF LAW ,

AND

BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( FEDERAL INSURANCE INSTITUTION FOR CLERICAL STAFF ), BERLIN ,

DEFENDANT AND APPELLANT IN THE SAID APPEAL ,

Subject of the case

UPON THE INTERPRETATION OF ANNEX V TO REGULATION 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 ) AS AMENDED BY REGULATION NO 1392/74 OF THE COUNCIL OF 4 JUNE 1974 ( OFFICIAL JOURNAL L 152 , P . 1 )

Grounds

1 BY AN ORDER DATED 12 OCTOBER 1979 WHICH WAS RECEIVED AT THE COURT ON 7 DECEMBER 1979 THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION FRAMED AS FOLLOWS :

' ' MUST THE FIRST SENTENCE OF PARAGRAPH 9 OF PART C OF ANNEX V TO REGULATION ( EEC ) NO 1408/71 , AS AMENDED BY REGULATION ( EEC ) NO 1392/74 , BE INTERPRETED TO MEAN THAT A GERMAN NATIONAL WHO HAS PAID CONTRIBUTIONS TO THE PENSION INSURANCE OF ANOTHER MEMBER STATE AND WHO SUBSEQUENTLY WISHES TO BUY-IN GERMAN CONTRIBUTIONS FOR EARLIER PERIODS IN RESPECT OF WHICH CONTRIBUTIONS HAVE NOT YET BEEN PAID , ( ART . 49A ( 2 ) OF PART 2 OF THE CLERICAL STAFF PENSION REFORM LAW ( ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ ), AS AMENDED BY THE PENSION REFORM LAW ( RENTENREFORMGESETZ ) OF 16 OCTOBER 1972 , MUST FIRST PAY GERMANY CONTRIBUTIONS FOR THE PERIODS COVERED BY CONTRIBUTIONS IN ANOTHER MEMBER STATE OR IS THIS UNNECESSARY UNDER COMMUNITY LAW?

' '

2 THAT QUESTION HAS BEEN SUBMITTED IN THE CONTEXT OF A DISPUTE BETWEEN A GERMAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , AND THE BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( FEDERAL INSURANCE INSTITUTION FOR CLERICAL STAFF ). THE PLAINTIFF PAID CONTRIBUTIONS TO GERMAN INSURANCE FOR CLERICAL STAFF FROM APRIL 1948 TO JUNE 1969 , AND THEN FROM 1973 TO 1974 . IN THE INTERVENING PERIOD ( 1969 TO 1973 ) HE WAS EMPLOYED IN BELGIUM AND COMPULSORILY INSURED UNDER THE BELGIAN INSURANCE SCHEME FOR CLERICAL STAFF . IN HIS FIRST GERMAN INSURANCE PERIOD THERE WERE SOME INTERRUPTIONS , NAMELY FOUR MONTHS IN 1956 AND 41 MONTHS BETWEEN 1964 AND 1967 , DURING WHICH HE WAS NOT INSURED EITHER IN ANOTHER MEMBER STATE OR UNDER ANY OTHER OLD-AGE PENSION INSURANCE SCHEME IN THE FEDERAL REPUBLIC OF GERMANY .

3 THE APPLICANT EXPRESSED THE DESIRE TO MAKE USE OF THE FACILITIES AVAILABLE TO PERSONS IN HIS SITUATION UNDER ARTICLE 49A ( 2 ) OF THE ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ ( CLERICAL STAFF PENSION REFORM LAW , HEREINAFTER REFERRED TO AS ' ' THE 1957 LAW ' ' ), AS AMENDED BY ARTICLE 2 ( 2 ) 14 OF THE RENTENREFORMGESETZ ( PENSION REFORM LAW , HEREINAFTER REFERRED TO AS ' ' THE 1972 LAW ' ' ) OF 16 OCTOBER 1972 . ACCORDING TO THAT PROVISION : ' ' PERSONS WHO ARE ENTITLED TO BECOME VOLUNTARILY INSURED PURSUANT TO ARTICLE 10 OF THE CLERICAL STAFF INSURANCE LAW MAY , AT THEIR REQUEST , IN DEROGATION FROM THE PROVISIONS OF ARTICLE 140 OF THAT LAW , VOLUNTARILY BUY-IN CONTRIBUTIONS IN RESPECT OF PERIODS FROM 1 JANUARY 1956 TO 31 DECEMBER 1973 WHICH ARE NOT YET COVERED BY CONTRIBUTIONS TO STATUTORY PENSION INSURANCE , PROVIDED THAT A CONTRIBUTION RELATING TO ANY MONTH MAY NOT BE PAID UNLESS THE CONTRIBUTIONS COVERING ALL SUBSEQUENT MONTHS HAVE FIRST BEEN PAID . A CONTRIBUTION RELATING TO ANY MONTH MAY NOT EXCEED THE SMALLEST CONTRIBUTION PAID IN RESPECT OF A LATER MONTH ' ' .

4 RELYING ON THAT TEXT THE APPLICANT APPLIED TO PAY IN THAT WAY THE CONTRIBUTIONS WHICH HE WOULD HAVE PAID HAD HE BEEN INSURED IN THE FEDERAL REPUBLIC OF GERMANY BETWEEN 1948 AND 1969 ( 45 MONTH IN ALL ). WHILST NOT CONTESTING THAT THE PLAINTIFF SATISFIES THE CONDITIONS FOR THE EXERCISE OF THE OPTION OF MAKING BACK-PAYMENTS , THE DEFENDANT INSTITUTION REFERS TO THE SENTENCE IN ARTICLE 49A ( 2 ) WHICH SAYS THAT SUCH ENTITLEMENT SHALL EXIST ' ' PROVIDED THAT A CONTRIBUTION RELATING TO ANY MONTH MAY NOT BE PAID UNLESS THE CONTRIBUTIONS COVERING ALL SUBSEQUENT MONTHS HAVE FIRST BEEN PAID ' ' , ARGUING THAT THE APPLICANT MUST START BY PAYING THE GERMAN CONTRIBUTIONS IN RESPECT OF THE PERIOD CORRESPONDING TO THAT IN WHICH HE WAS COMPULSORILY INSURED AND PAID CONTRIBUTIONS IN BELGIUM . IT IS THAT REQUIREMENT WHICH IS THE SUBJECT-MATTER OF THE MAIN ACTION . THE APPLICANT HAS AN INTEREST IN CHALLENGING IT OWING TO THE FACT THAT THE ' ' BUYING-IN ' ' OF RECENT MISSING PERIODS , IN THIS CASE FROM 1969 TO 1973 , IS MORE EXPENSIVE THAN THAT FOR PERIODS FURTHER BACK , NAMELY 45 MONTHS BETWEEN 1956 AND 1967 .

5 THE PARTIES TO THE MAIN ACTION ARE AGREED THAT THE APPLICANT DOES COME UNDER ARTICLE 49A ( 2 ) AND THAT THE REQUIREMENT LAID DOWN BY THE INSURANCE INSTITUTION OF PAYING FIRST THE CONTRIBUTIONS FOR THE PERIODS BETWEEN 1969 AND 1973 , NOTWITHSTANDING THE FACT THAT THEY CORRESPOND TO COMPULSORY INSURANCE PERIODS IN BELGIUM , DERIVES FROM A PROPER CONSTRUCTION OF THE RELEVANT PROVISIONS OF THE GERMAN LEGISLATION IN THE MATTER . THEY ARE AGREED THAT THE OBLIGATION UNDER GERMAN VOLUNTARY INSURANCE TO BUY-IN THE PERIODS CORRESPONDING TO INSURANCE PERIODS IN ANOTHER MEMBER STATE MAY BE IMPOSED ONLY ON GERMAN NATIONALS AND ON WORKERS FROM OTHER MEMBER STATES WHO LIVE IN THE FEDERAL REPUBLIC OF GERMANY AND THAT IT CANNOT BE IMPOSED ON WORKERS FROM OTHER MEMBER STATES LIVING OUTSIDE GERMANY .

6 ACCORDING TO THE DEFENDANT INSTITUTION THE CONFORMITY OF THAT REQUIREMENT WITH COMMUNITY LAW IS APPARENT FROM THE TEXT OF PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 OF THE COUNCIL . ON THE OTHER HAND THE PLAINTIFF IN THE MAIN ACTION CONTESTS THAT INTERPRETATION OF THOSE PROVISIONS . HE FURTHER MAINTAINS , AS HIS PRIMARY CONTENTION , THAT IF THE INTERPRETATION PUT FORWARD BY THE DEFENDANT WERE CORRECT , THE DISPUTED PROVISIONS WOULD CONSEQUENTLY BE TAINTED WITH DISCRIMINATION AND WOULD THEREFORE BE ILLEGAL OWING TO THE DIFFERENT TREATMENT IMPOSED ON GERMAN NATIONALS AND ON NATIONALS OF OTHER MEMBER STATES LIVING IN GERMANY BY COMPARISON WITH WORKERS FROM OTHER MEMBER STATES HAVING ACCESS TO THE GERMAN VOLUNTARY INSURANCE SCHEME AND TO THE ' ' BUYING-IN ' ' SCHEME , UPON WHOM SUCH AN OBLIGATION TO BUY-IN PERIODS CORRESPONDING TO A PERIOD OF INSURANCE IN ANOTHER MEMBER STATE CANNOT BE IMPOSED .

7 CONSEQUENTLY THE QUESTION REFERRED TO THE COURT PRIMARILY SEEKS TO DETERMINE WHETHER PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V MUST INDEED BE CONSTRUED IN THE MANNER SUGGESTED BY THE DEFENDANT INSTITUTION AND , SECONDLY , SHOULD THE PROVISIONS IN QUESTION HAVE THAT EFFECT , WHETHER THEY ARE NOT THEREFORE INVALID BY REASON OF THE DIFFERENT TREATMENT OF TWO CATEGORIES OF WORKERS BOTH OF WHOM ARE ALLOWED ACCESS TO VOLUNTARY INSURANCE WITH THE OPTION OF MAKING BACK-PAYMENTS IN RESPECT OF EARLIER PERIODS .

8 THE PROVISIONS WHICH REQUIRE CONSIDERATION ARE ARTICLE 89 OF REGULATION NO 1408/71 AND PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO THE SAME REGULATION . THOSE PROVISIONS READ AS FOLLOWS :

ARTICLE 89

' ' SPECIAL PROCEDURES FOR IMPLEMENTING THE LEGISLATIONS OF CERTAIN MEMBER STATES ARE SET OUT IN ANNEX V . ' '

PARAGRAPH 8 OF PART C OF ANNEX V

' ' ARTICLE 1233 OF THE INSURANCE CODE ( RVO ) AND ARTICLE 10 OF THE CLERICAL STAFF INSURANCE LAW ( AVG ), AS AMENDED BY THE PENSION REFORM LAW OF 16 OCTOBER 1972 , WHICH GOVERN VOLUNTARY INSURANCE UNDER GERMAN PENSION INSURANCE SCHEMES , SHALL APPLY TO NATIONALS OF THE OTHER MEMBER STATES AND TO STATELESS PERSONS AND REFUGEES RESIDING IN THE TERRITORY OF THE OTHER MEMBER STATES , ACCORDING TO THE FOLLOWING RULES :

WHERE THE GENERAL CONDITIONS ARE FULFILLED VOLUNTARY CONTRIBUTIONS TO THE GERMAN PENSION SCHEME MAY BE PAID :

( A ) IF THE PERSON CONCERNED HAS HIS DOMICILE OR RESIDENCE IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY ;

( B ) IF THE PERSON CONCERNED HAS HIS DOMICILE OR RESIDENCE IN THE TERRITORY OF ANOTHER MEMBER STATE AND AT ANY TIME PREVIOUSLY BELONGED COMPULSORILY OR VOLUNTARILY TO A GERMAN PENSION INSURANCE SCHEME ;

( C ) IF THE PERSON CONCERNED IS A NATIONAL OF ANOTHER MEMBER STATE , HAS HIS DOMICILE OR RESIDENCE IN THE TERRITORY OF A THIRD STATE AND HAS PAID CONTRIBUTIONS FOR GERMAN PENSION INSURANCE FOR AT LEAST 60 MONTHS , OR WAS ELIGIBLE FOR VOLUNTARY INSURANCE UNDER THE TRANSITIONAL PROVISIONS PREVIOUSLY IN FORCE AND IS NOT COMPULSORILY OR VOLUNTARILY INSURED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE . ' '

PARAGRAPH 9 OF PART C OF ANNEX V

' ' THE REGULATION SHALL NOT AFFECT ARTICLE 51A ( 2 ) OF THE MANUAL WORKERS PENSION REFORM LAW ( ARVNG ) OR ARTICLE 49A ( 2 ) OF THE CLERICAL STAFF PENSION REFORM LAW ( ANVNG ), AS AMENDED BY THE PENSION REFORM LAW OF 16 OCTOBER 1972 . THE PERSONS WHO , UNDER PARAGRAPH 8 ( B ) AND ( C ), MAY JOIN VOLUNTARY INSURANCE , MAY PAY CONTRIBUTIONS ONLY IN RESPECT OF PERIODS FOR WHICH THEY HAVE NOT YET PAID CONTRIBUTIONS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE . ' '

THE CONSTRUCTION OF PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71

9 WHEN ARTICLE 49A INCLUDING PARAGRAPH ( 2 ) THEREOF WAS ADDED TO THE 1957 LAW IN 1972 THE BENEFIT OF ' ' BUYING-IN ' ' WHICH IT INTRODUCED WAS RESTRICTED TO GERMAN NATIONALS AND TO FOREIGNERS LIVING IN THE FEDERAL REPUBLIC OF GERMANY . IN THE CASE OF THOSE PERSONS THREE CONDITIONS ARE IMPOSED ON THE RIGHT TO ' ' BUY-IN ' ' :

( A ) BUYING-IN IS RESTRICTED TO A PERIOD BETWEEN 1 JANUARY 1956 AND 31 DECEMBER 1973 ;

( B ) IT MAY BE EFFECTED ONLY IN RESPECT OF PERIODS FOR WHICH THE PERSON CONCERNED PAID CONTRIBUTIONS TO STATUTORY INVALIDITY AND OLD-AGE PENSION INSURANCE ( PRINCIPLE OF THE PROHIBITION ON OVERLAPPING INSURANCE ) - THAT PROVISION , AS HAS JUST BEEN INDICATED , BEING UNDERSTOOD AND IMPLEMENTED BY THE COMPETENT INSTITUTIONS AS REFERRING ONLY TO PERIODS OF CONTRIBUTION TO INSURANCE IN THE FEDERAL REPUBLIC OF GERMANY - AND ,

( C ) BUYING-IN MUST START WITH THE MOST RECENT MISSING PERIODS AND GO PROGRESSIVELY FURTHER BACK IN THE PAST ( PRINCIPLE OF RETROGRESSIVE BUYING-IN ).

10 FOLLOWING THE INTERVENTION OF THE COMMISSION THE FEDERAL REPUBLIC OF GERMANY ACCEPTED THAT THE BENEFIT OF THAT PROVISION SHOULD BE EXTENDED TO THE NATIONALS OF OTHER MEMBER STATES WHO DID NOT RESIDE IN THE FEDERAL REPUBLIC OF GERMANY PROVIDED THAT THEY HAD PREVIOUSLY BEEN COMPULSORILY OR VOLUNTARILY INSURED UNDER THE GERMAN OLD-AGE PENSION INSURANCE SCHEME . THAT IS THE OBJECT OF PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V , AMENDED TO THAT END IN 1974 .

11 THOSE TWO PROVISIONS ARE CLOSELY LINKED AND MUST BE CONSTRUED IN CONJUNCTION WITH ONE ANOTHER . THEY DISTINGUISH BETWEEN , ON THE ONE HAND , WORKERS WHO DERIVE THEIR RIGHT TO AVAIL THEMSELVES OF ARTICLE 49A ( 2 ) DIRECTLY FROM THE GERMAN LEGISLATION , NAMELY GERMAN NATIONALS WHATEVER THEIR PLACE OF RESIDENCE AND NATIONALS OF OTHER MEMBER STATES RESIDING IN THE FEDERAL REPUBLIC OF GERMANY WHO ARE REFERRED TO IN PARAGRAPH 8 ( A ) AND IN THE FIRST SENTENCE OF PARAGRAPH 9 , AND , ON THE OTHER HAND , WORKERS ENTITLED TO APPLY TO ' ' BUY-IN ' ' ONLY BY VIRTUE OF COMMUNITY LAW , WHO ARE REFERRED TO IN PARA- GRAPH 8 ( A ) AND ( B ) AND IN THE SECOND SENTENCE OF PARAGRAPH 9 .

12 ACCORDING TO THE SECOND SENTENCE OF PARAGRAPH 9 PERSONS IN THE SECOND CATEGORY , THAT IS TO SAY THOSE REFERRED TO IN PARAGRAPH 8 ( B ) AND ( C ), MAY ' ' PAY CONTRIBUTIONS ONLY IN RESPECT OF PERIODS FOR WHICH THEY HAVE NOT YET PAID CONTRIBUTIONS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ' ' . IN OTHER WORDS , THEY ARE BARRED FROM ' ' BUYING-IN ' ' PERIODS WHICH , FROM THE POINT OF VIEW OF THE GERMAN LEGISLATION , ARE ACTUALLY MISSING , WHILST THEY CORRESPOND TO CONTRIBUTION PERIODS IN ANOTHER MEMBER STATE , EVEN THOUGH IT MAY BE IN THEIR INTERESTS TO DO SO BECAUSE , FOR INSTANCE , THEY DO NOT HAVE ANY OTHER PERIODS TO BE BOUGHT IN . IT IS THEREFORE SELF-EVIDENT THAT THE COMPETENT GERMAN INSTITUTIONS CANNOT REQUIRE THEM TO ' ' BUY-IN ' ' THOSE PERIODS EVEN THOUGH THEY ARE MORE RECENT THAN THE PERIODS TO BE ' ' BOUGHT-IN ' ' .

13 ON THE OTHER HAND , IN THE CASE OF WORKERS IN THE FIRST CATEGORY WHO DERIVE THE RIGHT TO ' ' BUY-IN ' ' DIRECTLY FROM THE GERMAN LEGISLATION , THE SITUATION PRIOR TO THE AMENDMENT OF PART C OF ANNEX V MAINTAINED . THEY MAY BUY-IN EVEN PERIODS COVERED BY CONTRIBUTIONS IN OTHER MEMBER STATES - WHICH MAY IN FACT BE TO THEIR ADVANTAGE - BUT THE COUNTERPART OF THAT OPTION IS THAT THEY MAY BE REQUIRED TO BUY-IN THOSE PERIODS BEFORE THE GERMAN PERIODS LYING FURTHER BACK IN TIME . THAT IS CLEARLY EXPRESSED AT THE BEGINNING OF PARA- GRAPH 9 WHICH STATES : ' ' REGULATION ( NO 1408/71 ) SHALL NOT AFFECT . . . ARTICLE 49A ( 2 ) OF THE CLERICAL STAFF PENSION REFORM LAW . ' ' THE COMMISSION HAS STATED THAT IT HAS ACCEPTED THE SPECIAL SITUATION OF THOSE WORKERS , NOW IN DISPUTE , OWING TO THE CLOSE AND LEGITIMATE LINK , PARTICULARLY FROM THE FINANCIAL VIEWPOINT , WHICH THE GERMAN LEGISLATURE HAS PLACED BETWEEN A RIGHT TO BUY-IN , WHICH WAS GENEROUSLY EXTENDED TO COVER A WIDE CATEGORY OF PERSONS , AND AN OBLIGATION INTENDED TO PREVENT INSURED PERSONS FROM BEING ABLE TO BUY-IN SYSTEMATICALLY THE LEAST EXPENSIVE PERIODS , IN THIS CASE THOSE FURTHER BACK IN TIME .

14 IT THUS FOLLOWS FROM THE OBJECTS AND THE WORDING OF PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V THAT THOSE PROVISIONS , AND IN PARTICULAR THE FIRST SENTENCE OF PARAGRAPH 9 , ARE INTENDED TO ENABLE THE REQUIREMENT OF RETROGRESSIVE BUYING-IN SET FORTH IN ARTICLE 49A ( 2 ) OF THE 1957 LAW TO CONTINUE TO EXIST IN THE LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY EVEN THOUGH THE MOST RECENT PERIODS CORRESPOND TO PERIODS IN WHICH CONTRIBUTIONS WERE COMPULSORY IN ANOTHER MEMBER STATE . WHENEVER A GERMAN NATIONAL OR A NATIONAL OF ANOTHER MEMBER STATE RESIDING IN THE FEDERAL REPUBLIC OF GERMANY CLAIMS THE BENEFIT OF ARTICLE 49A ( 2 ) THE CONTRIBUTION PERIODS IN OTHER MEMBER STATES ARE NOT THEREFORE REGARDED AS ' ' COVERED ' ' BUT MUST BE BOUGHT-IN FIRST IF THEY ARE MORE RECENT THAN NATIONAL PERIODS WHICH ARE IN FACT NOT COVERED . ON THE OTHER HAND , THAT REQUIREMENT MAY NOT BE APPLIED AGAINST THE PERSONS REFERRED TO IN PARAGRAPH 8 ( B ) AND ( C ) WHO , MOREOVER , ARE NOT IN ANY EVENT ALLOWED TO ' ' BUY-IN ' ' PERIODS COMPLETED IN OTHER MEMBER STATES .

BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION

15 IT IS NOW APPROPRIATE TO EXAMINE THE QUESTION WHETHER THE DIFFERENCE IN TREATMENT WHICH IS INDISPUTABLY APPLIED BY PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V BETWEEN , ON THE ONE HAND , GERMAN WORKERS AND FOREIGNERS RESIDING IN THE FEDERAL REPUBLIC OF GERMANY - REFERRED TO IN THE FIRST SENTENCE OF PARAGRAPH 9 - AND , ON THE OTHER HAND , WORKERS FROM OTHER MEMBER STATES - REFERRED TO IN THE SECOND SENTENCE OF PARAGRAPH 9 - DOES NOT CONSTITUTE DISCRIMINATION AGAINST THE FORMER .

16 ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT THE GENERAL PRINCIPLE OF EQUALITY , OF WHICH THE PROHIBITION ON DISCRIMINATION ON GROUNDS OF NATIONALITY IS MERELY A SPECIFIC ENUNCIATION , IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THIS PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .

17 AN EXAMINATION OF THE ADVANTAGES AND DRAWBACKS OF THE TWO LEGAL SITUATIONS WHICH HAVE TO BE COMPARED LEADS TO THE CONCLUSION THAT THE OBJECTION AS TO DISCRIMINATION CANNOT BE SUSTAINED IN REGARD TO EITHER OF THOSE SITUATIONS SINCE THEY CANNOT BE REGARDED AS BEING MORE FAVOURABLE TO ONE THAN TO THE OTHER CATEGORY OF WORKERS CONCERNED . THE FINANCIAL BURDEN OF THE BUYING-IN TRANSACTION WILL IN FACT BE HEAVIER OR LIGHTER FOR EITHER CATEGORY DEPENDING ON WHETHER THE PERIODS TO BE BOUGHT-IN ARE MORE RECENT OR FURTHER BACK IN TIME SO THAT THE FINANCIAL EFFECT OF THE RULES IN QUESTION IS NOT IN GENERAL MORE UNFAVOURABLE TO ONE THAN TO THE OTHER OF THE TWO CATEGORIES . THE VARIATIONS IN THAT FINANCIAL BURDEN FROM ONE INDIVIDUAL CASE TO ANOTHER ARE IN FACT EXCLUSIVELY THE RESULT OF THE OBJECTIVELY DIFFERENT FACTUAL SITUATIONS IN WHICH THE INSURED PERSONS CONCERNED MAY FIND THEMSELVES DEPENDING ON THE CHANGES AND CHANCES OF THEIR WORKING LIFE .

18 THE REPLY TO THE QUESTION SUBMITTED SHOULD THEREFORE BE THAT PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION NO 1408/71 , AS AMENDED BY REGULATION NO 1392/74 , MUST BE INTERPRETED TO MEAN THAT A GERMAN NATIONAL WHO HAS PAID CONTRIBUTIONS TO OLD-AGE PENSION INSURANCE IN ANOTHER MEMBER STATE AND WHO SUBSEQUENTLY WISHES TO PAY A POSTERIORI , BUT WITH RETROACTIVE EFFECT WITHIN THE MEANING OF ARTICLE 49A ( 2 ) ADDED TO THE ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ BY THE RENTENREFORMGESETZ OF 16 OCTOBER 1972 , GERMAN PENSION CONTRIBUTIONS IN RESPECT OF PREVIOUS PERIODS MAY BE REQUIRED TO PAY GERMAN CONTRIBUTIONS IN RESPECT OF PERIODS COVERED BY CONTRIBUTIONS IN ANOTHER MEMBER STATE AND THAT CONSIDERATION OF THE SAID PARAGRAPHS 8 AND 9 , AS THUS CONSTRUED , HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THEIR VALIDITY .

Decision on costs

19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THE 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 ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY AN ORDER OF 12 OCTOBER 1979 RECEIVED AT THE COURT ON 7 DECEMBER 1979 , HEREBY RULES :

PARAGRAPHS 8 AND 9 OF PART C OF ANNEX V TO REGULATION 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 , AS AMENDED BY REGULATION NO 1392/74 OF THE COUNCIL OF 4 JUNE 1974 , MUST BE INTERPRETED TO MEAN THAT A GERMAN NATIONAL WHO HAS PAID CONTRIBUTIONS TO OLD-AGE PENSION INSURANCE IN ANOTHER MEMBER STATE AND WHO SUBSEQUENTLY WISHES TO PAY A POSTERIORI , BUT WITH RETROACTIVE EFFECT WITHIN THE MEANING OF ARTICLE 49A ( 2 ) ADDED TO THE ANGESTELLTENVERSICHERUNGS-NEUREGELUNGSGESETZ BY THE RENTENREFORMGESETZ OF 16 OCTOBER 1972 , GERMAN PENSION CONTRIBUTIONS IN RESPECT OF PREVIOUS PERIODS , MAY BE REQUIRED TO PAY GERMAN CONTRIBUTIONS IN RESPECT OF PERIODS COVERED BY CONTRIBUTIONS IN ANOTHER MEMBER STATE . CONSIDERATION OF THE SAID PARAGRAPHS 8 AND 9 , AS THUS CONSTRUED , HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THEIR VALIDITY .