OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 13 NOVEMBER 1975 ( 1 )

Mr President,

Members of the Court,

The widow of a worker received a survivor's pension in Luxembourg, where her deceased husband worked from 1954 to 1962, and another pension of the same kind in Germany, where he was employed from 1965 to 1967. As the insured died before the completion of his 55th year, leaving a widow and dependent minor children, the German insurance institution awarded an increased pension in the calculation of which account was taken not only of the insurance months actually completed but also of the number of months between the date of death and the date on which the worker would have reached 55 years of age; after which, it completed the pro rata calculation provided for under Article 28 of Regulation No 3 of the Council concerning social security for migrant workers. For this purpose it took account of the ratio between insurance periods completed in Germany and the total duration of periods completed under the legislation of the two Member States concerned.

In the circumstances described above, there is an entitlement to an increase of the normal pension also under Luxembourg law. The increase is calculated on the basis of a fixed co-efficient which is applied to the normal minimum wage, and the person entitled receives it as soon as the worker would have completed 55 years of age.

A dispute has arisen with the national authorities of the two States concerned about the compatibility with Community law of the overlap of benefits which is thus produced by simultaneous application of the increase provided for under Luxembourg law and that provided for under German law.

The Luxembourg insurance institution, which appealed before the Cour de cassation against the decision of the Conseil supérieur des assurances sociales which had acknowledged the right of the person concerned to the special increases provided for under national law, contended that the effect of Community law was to exclude the application of the Luxembourg increases.

Its first contention was that, since the worker was employed in the Federal Republic at the time of death, the effect of Article 12 of Regulation No 3 of the Council concerning social security for migrant workers was, at that time, that he could not be considered to be insured with the Caisse de pension of Luxembourg. There was, in consequence, no question of an obligation on the Luxembourg insurance institution to pay the increase because, under Luxembourg legislation, it is provided that, in cases of successive affiliation to various contributory pension schemes, the above-mentioned increase is the responsibility of the insurance institution to which the insured was affiliated at the time of this death.

The Luxembourg Caisse de pension further relied on Article 51 of the EEC Treaty and Articles 27 and 28 of Regulation No 3, the effect of which is, in its view, to prohibit an overlap in the circumstances of this case, since the benefits involved duplicate rather than supplement each other, unless the Luxembourg increase can also be the subject of a proportional calculation; but this has been ruled out at earlier stages of the proceedings.

Arising from the dispute, the Luxembourg Cour de cassation raised certain questions of interpretation regarding Regulation No 3 and Article 51 of the Treaty.

The first question from the Cour de cassation is whether, in a case where the insured is at the time of death subject to the insurance scheme of another Member State, the effect of Article 12 of Regulation No 3 is to relieve the national organization of certain obligations imposed on it under national law namely, in the present case, the obligation to award the special increase mentioned above.

Under that provision, wage-earners employed in the territory of one Member State are to be subject to the legislation of that State even if they permanently reside in the territory of another Member State. As the Court decided in Case 19/67 (Sociale Verzekeringsbank v van der Vecht [1967] ECR 354), Article 12 is a provision determining what legislation is applicable, the purpose of which is to avoid any simultaneous application of national legislative systems which might result in a purposeless increase in the social security contributions of both the worker and the employer. This is what would happen if the worker, in the course of his working life, found himself, against his will, simultaneously subject to the social security legislation of more than one country. Apart from these circumstances and this objective, as was stated in the judgment in Case 92/63 (Nonnenmacher v Sociale Verzekeringsbank [1964] ECR 281), Article 12 includes no provision prohibiting the simultaneous application of several systems of legislation.

Article 12 cannot, therefore, be relied upon to release a national insurance authority from the obligations which national law imposes upon it in regard to periods which the insured has completed with it.

The denial or limitation of the rights of insured persons which would otherwise occur would be inconsistent with the objectives of Articles 48 to 51 of the Treaty, the attainment of which pre-supposes the elimination of legislative obstacles which might operate to the disadvantage of migrant workers, and certainly does not permit the creation by Community law of fresh obstacles, as would be the case if the effect of applying Community law were to place the migrant worker, in the field of social security, in a less favourable position than that assured for him under national legislative systems.

This principle, which is of general application, acquires added force when, as appears to have happened in the present case, the insured has acquired his right under national legislation alone.

Secondly, the Luxembourg Cour de cassation asks whether Article 51 of the EEC Treaty and Articles 27 and 28 of Regulation No 3 of the Council prohibit the overlap which might be produced by simultaneous application, in full, of the legislation of two States with the result that a State in which there is legislative provision for a special increase of pension without proportional calculation must refuse it to a widow who, under the legislation of another State, receives a pension increase in respect of the same notional insurance period, on the basis of aggregation and proportional calculation.

The first point to be made is that, in the circumstances envisaged by the court making the reference, the overlap is incomplete because, although the notional affiliation periods coincide, the two States concerned appear to take them into account for purposes and in ways which are different; in any case, it would be only a partial overlap, because the period taken into account under the legislation of the Federal Republic in calculating the increase after proportional calculation affects the amount of the German pension only to the extent of a fraction.

It does not appear possible to solve the difficulty of the overlap to which the Luxembourg Caisse de pension refers on the basis of Article 28 of Regulation No 3 because, under the precedents established by this Court, a benefit acquired without recourse to aggregation cannot be subject to proportional calculation (Judgment in Case 2/67, De Moor v Caisse de Pension [1967] ECR 197 and also Judgment in Case 140/73 Securite Sociale Paris v Mancuso [1973] ECR 1449). On the other hand, because the German increase is calculated on a pro rata basis, straightforward cancellation of the Luxembourg increase would mean a loss for the person concerned which could not be justified even on the general principle of avoiding overlapping.

Nevertheless, leaving aside the present case, it must be conceded that, as regards social benefits which do not merely represent the quid pro quo for insurance contributions paid by a worker but arise from the social need to guarantee a minimum wage, the simultaneous application, in cases where there is an overlap of the notional insurance periods taken into account in the calculation of the benefits provided by insurance organizations in various States, of the legislation of more than one State in favour of one and the same person may undoubtedly produce an improper plurality of benefits. Indeed, this may happen especially when notional insurance periods are used, which serves to demonstrate that there is no strict relationship between benefits and contributions.

In the Mancuso case, referred to above, I tried to describe the consequences of the unduly privileged position which might be created by the simultaneous existence of uncoordinated national insurance schemes, to the advantage of those entitled to different invalidity pensions relating to one and the same risk. Moreover, in its judgment in that case, the Court ruled that Regulation No 3 did not contain provisions requiring national authorities to avoid an overlap of the invalidity benefits independently provided for under their legislation. Of the two possibilities, namely, the danger of insufficient protection which might arise in certain cases by the adoption of the general principle of excluding, on grounds of overlap, national benefits acquired without recourse to aggregation and the possibility of too great a degree of protection for the worker, the Court has invariably opted in favour of the second alternative. On this subject the Court has undoubtedly borne in mind that, in the absence of precise rules to coordinate national legislative systems based on different methods of calculation and machinery (and the present is a case in point), a general principle prohibiting overlap might lead to an unjustified reduction in the worker's insurance cover.

In fact, the Court had already given the following ruling in Case 34/69 (Caisse d'Assurance Vieillesse v Duffy [1969] ECR 603): ‘In cases in which the regulations confer on workers social security benefits which they would otherwise be unable to obtain, limitations may be imposed on them corresponding to the advantages which they derive therefrom. In the absence of such a counterbalance, such limitations cannot be justified since they would result in placing the worker in a situation less favourable than that which, were it not for the regulations, would follow from the application of national law or of the special conventions between Member States’. This general principle, laid down concerning a widow's survivor's pension and applied afresh in Mancuso to a case of overlap of invalidity pensions relating to the same risk, is of relevance in the present case, a fortiori because, in its very recent judgment of 21 October 1975 in Case 24/75 (Petroni v Office National des Pensions) the Court declared to be without effect, at least in part, an attempt made by the Community legislature, by means of Regulation No 1408/71, which replaced Regulation No 3, to lay down wider common rules than the previous ones to limit the overlapping of insurance benefits. The judgment further confirmed the principle that, when the right to insurance benefit is acquired under national law alone and, accordingly, without need for recourse to aggregation as provided for under Community rules, Community law cannot operate to reduce the benefit which national law independently confers on the insured and his dependants.

Since the right to the pension and the corresponding increases under consideration in this case was acquired in Luxembourg under national legislation alone, it follows that, in a situation of this kind, Community law cannot provide the insurance authority concerned with the means of avoiding the unfortunate overlap.

In order to avoid situations of this kind, for which there appears to be no justification when viewed in the light of the social needs which national insurance schemes are intended to meet, the competent national authorities can, by amending their present social legislation, adopt appropriate provisions which enable due allowance to be made for the difficulties created by the introduction of freedom of movement for workers over a more extensive area than that of a State, and in which separate and independent insurance schemes exist side by side. As the Commission rightly points out, this does, however, create the risk of unequal treatment and lack of legal certainty. In this context, as in others, the sovereign remedy is the harmonization of the different national legislative systems.

In my opinion, the Court should reply to the questions referred by the Luxembourg Cour de Cassation by ruling that:

1. Article 12 of Regulation No 3 of the Council concerning social security for migrant workers cannot result in depriving the person entitled to an insurance benefit of rights which he is recognized as possessing under national legislation;

2. Articles 27 and 28 of Regulation No 3, interpreted in the light of Article 51 of the EEC Treaty, do not prohibit the overlap of insurance benefits calculated on the basis of one and the same period if the right to such benefits was acquired under national legislation alone.

( 1 ) Translated from the Italian.