OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 31 MARCH 1977 ( 1 )

Mr President,

Members of the Court,

The plaintiff in the proceedings before the national court which have given rise to the reference to the Court of Justice for a preliminary ruling in Case 104/76 was born in 1944 and possesses German nationality. After her marriage to a German citizen in March 1965 she obtained reimbursement of the contributions which she had until then paid to the workers' pension insurance scheme on account of employment in the Federal Republic of Germany which was subject to compulsory insurance. This was possible under paragraph 1304 of the Reichsversicherungsordnung (Imperial Insurance Regulation) which was applicable until the end of 1967. After her marriage the plaintiff continued to work and paid compulsory contributions to the German workers' pension insurance scheme for a further 27 months. In May 1968 she gave up her employment in Germany and moved with her husband to the Netherlands. She did not take up employment subject to compulsory insurance there. Since she was no longer liable from that time to pay contributions to the German pension insurance scheme, she applied in May 1970 for a further reimbursement to cover the contributions which she had paid during the abovementioned 27 months. This claim was based on paragraph 1303 (1) of the Reichsversicherungsordnung, according to which:

‘Where there is no compulsory insurance in all branches of the statutory pension insurance scheme and there is no right to voluntary insurance or where the entitlement to voluntary insurance ceases for a reason other than the existence of compulsory insurance in a branch of the statutory pension insurance scheme, one-half of the contributions paid in respect of the period after 20 June 1948 in the territory of the Federal Republic of Germany … shall, upon application, be reimbursed to the insured … A claim may be made only if two years have elapsed since the compulsory insurance ceased and if in the meantime no employment or activity subject to compulsory insurance has been carried on afresh.’

The application was however refused by the competent insitution, the Landesversicherungsanstalt (Regional Insurance Office) Rheinprovinz. The reason stated for this refusal was that the plaintiff was insured in the Netherlands under the General Old-Age Insurance Law which came into force on 1 January 1957, according to which all persons between the ages of 15 and 65 who are deemed to be residents are insured regardless of nationality and of the existence of employment. Since employment in several Member States must be regarded as a single entity, it was impossible to say that the plaintiff was no longer subject to compulsory insurance.

The plaintiff appealed against this decision before the Sozialgericht (Social Court) Dusseldorf. In so doing she referred in support of her claim for reimbursement to the fact that she had not been employed for the last two years before making the application and had no claim to a pension under Netherlands law. Therefore there was no compulsory insurance within the meaning of paragraph 1303 of the Reichsversicherungsordnung. In addition, she stated that it was doubtful whether the EEC regulations on social security for migrant workers, upon which the Landesversicherungsanstalt had relied, were at all applicable to claims for reimbursement and whether EEC law precluded a claim for reimbursement in her case.

The Sozialgericht Dusseldorf dismissed the application by judgment of 17 September 1971. The court regarded as decisive the fact that the plaintiff was covered by the Netherlands statutory pension insurance scheme for residents. It held that that insurance is, pursuant to Annex B to Regulation No 3, a part of Community law and must, for instance, be taken into account in the aggregation of insurance periods under Article 27 of that regulation. Furthermore, the plaintiff is a person covered by Regulations Nos 3 and 4 and the assumption must also be made that those regulations do not only refer to the right to a pension in the narrow sense but also to the right to contribute. The preamble to and the contents of Regulation No 3 as a whole (the court was not able to indicate a specific provision providing the solution to the problem) lead to the conclusion that insurance periods completed in other Member States must also be treated as German insurance periods with regard to the claim for reimbursement of the contributions; reimbursement is therefore also precluded by the existence of compulsory insurance in another Member State.

The plaintiff appealed against this judgment before the Landessozialgericht Nordrhein-Westfalen (Higher Social Court for North Rhine-Westphalia). That court reversed the judgment of the Sozialgericht and ordered the Landesversicherungsanstalt to reimburse the contributions which had been claimed. In this connexion it referred on the one hand to the fact that the Netherlands general insurance scheme for widows and orphans was not listed in Annex B to Regulation No 3 and that therefore it could not be taken into consideration. Furthermore, on the assumption, which was not further analysed, that the plaintiff was covered by the Netherlands General Old-Age Insurance Law, it is important for the purposes of the decision that the Netherlands insurance offers only incomplete protection in comparison with the German insurance. A typical example of this is, in particular, the fact that under Article 9 of Regulation No 3 it appears impossible to take out voluntary insurance in accordance with paragraph 1233 of the Reichsversicherungsordnung with the aid of the Netherlands insurance periods. Such compulsory insurance cannot be taken into consideration for the purposes of paragraph 1303 of the Reichsversicherungsordnung. If it is also borne in mind that the right to freedom of movement is not prejudiced by the reimbursement of compulsory contributions the only conclusion which remains is that the EEC regulations on social security for migrant workers deliberately omitted claims for reimbursement from their ambit.

Upon appeal by the respondent on a point of law the Bundessozialgericht (Federal Social Court) held in its judgment of 31 January 1974 that both the Netherlands General Old-Age Insurance Law and the Netherlands General Law concerning Widows and Orphans came within the field of application of Regulation No 3. According to the scheme and purpose of that regulation, it is possible to apply it also to payments by way of reimbursement; paragraph 1303 of the Reichsversicherungsordnung may therefore be covered by Community law. For this reason the Bundessozialgericht criticized the view of the Landessozialgericht that the question of the interpretation of Community law does not arise in the case which was brought before it. The Bundessozialgericht did not in fact have a sufficient statement of the facts for a final judgment, that is, information as to whether and how the plaintiff is insured for social security in the Netherlands. For this reason it referred the case back to the Landessozialgericht after quashing the judgment of that court.

The Landessozialgericht subsequently turned to the Netherlands Sociale Verzekeringsbank in Amsterdam for the answer to the abovementioned question. It learned from that court in a letter of 26 November 1975 that the plaintiff had been compulsorily insured under the General Old-Age Insurance Law and the General Law concerning Widows and Ophans since she became resident in the Netherlands, provided that she or her husband were not in employment abroad.

In view of this decision and the questions relating to Community law indicated in the judgment of the Bundessozialgericht, the Landessozialgericht stayed the proceedings and referred to the Court of Justice the following questions for a preliminary ruling:

1. Was the right to reimbursement of contributions already contained in Regulations Nos 3 and 4 of the EEC or was the position different from that provided by Regulation (EEC) No 1408/71 with effect from 1 October 1972? Did that regulation merely clarify a legal situation which existed already or did it make provision for the first time for the right to reimbursement of contributions?

2. In the domestic German law contained in paragraphs 1303 and 1323a of the Reichsversicherungsordnung (Imperial Insurance Regulation, hereinafter referred to as ‘the RVO’) was it necessary for an insurance requirement under the Algemene Ouderdomswet (General Old-Age Insurance Law, hereinafter referred to as ‘the AOW’) and the Algemene Weduwen- en Wezenwet (General Law concerning Widows and Orpha ns, hereinafter referred to as ‘the AWW’) of the Netherlands to be regarded as ‘compulsory insurance’ within the meaning of paragraph 1303 (1) of the RVO even from May 1970 and is a German pension insurance institution for that reason debarred from reimbursing contributions under the abovementioned provisions if a German national transfers his residence to the Netherlands?

3. Can Article 2 of Regulation No 3 of the EEC be interpreted to the effect that the domestic German right of reimbursement of contributions is included in the matters covered by that regulation?

4. Are the relevant EEC regulations primarily intended to serve: (a) to guarantee and reinforce the right of citizens of the EEC to freedom of movement; and (b) to maintain all rights or social security entitlements already acquired in a Member State in particular with regard to a subsequent provision for old-age, for example by aggregating insurance periods which are capable of being taken into account?

5. Is the principle of the maintenance of rights or affiliations already acquired always to take precedence even over the wish of the beneficiary to have his contributions reimbursed even if, as in the case of the AOW, national law provides for the possibility of exemption from the insurance requirement if an application is submitted?

My opinion on these questions is as follows:

1. With regard, first, to the question whether the right to reimbursement of contributions is already contained in Regulations Nos 3 and 4, it is possible in fact to state that those regulations, unlike Regulation No 1408/71, make no express reference to the reimbursement of contributions. Further, it must be acknowledged that the benefits listed in Article 2 of Regulation No 3 are dependent on the materialization of the risk, whereas the precondition for reimbursement of contributions is the retroactive termination of the insurance relationship. Nevertheless, I am, with the Commission and the Landesversicherungsanstalt, of the opinion that the abovementioned Article 2 does not preclude the inclusion of the right to reimbursement amongst the matters covered by Regulation No 3. Several arguments may be put forward in favour of this view. (a) First, the close connexion between the reimbursement of contributions and the right to contribute and to claim a pension tells in favour of a broad interpretation of the concept of benefits. This is shown in particular by the German Reichsversicherungsordnung, which regulates the reimbursement of contributions in the same chapter as pension benefits, that is in Section Two of Book Four under the heading ‘Insurance Benefits’. In addition, Article 2 of Regulation No 3 does not strictly speaking refer to rights to benefits but to legislation concerning such benefits. According to the definition laid down in Article 1 (b), however, the term legislation means the relevant national laws, regulations and so forth and the whole of their contents, of which Regulation No 3 only mentions typical benefits for the purpose of identification. (b) It is also of importance that the application of the export guarantee laid down in Article 10 (1) of Regulation No 3, that is, an export guarantee under Community law and not merely in a national context, is ensured only with regard to claims for reimbursement if the concept is given the abovementioned broad interpretation. In the interests of freedom of movement it is necessary to attach importance to this. (c) Finally, a reference to Regulation No 1408/71 which replaced Regulation No 3 as from 1 October 1972, is of interest. In this connexion it is important that, except for changes of form, Article 4 (1) of Regulation No 1408/71 corresponds exactly to Article 2 (1) of Regulation No 3. According to the recitals of the preamble to the Commission's draft of Regulation No 1408/71, it covers the legislation and schemes specified in Article 2 (1) of Regulation No 3. On the other hand, it is clear from Article 10 of Regulation No 1408/71 and the definition of the concept of benefits contained in Article 1 (t) that the reimbursement of contributions is covered by Regulation No 1408/71. This prompts the conclusion that the reimbursement of contributions is also covered by Article 4 (1) of that regulation, in other words by the provision which corresponds to Article 2 of Regulation No 3. Therefore the express extension of the definition contained in Article 1 (t) to cover the reimbursement of contributions does not, as the Commission has correctly emphasized, mean that the reimbursement of contributions did not come within the field of application of the regulations until then; on the contrary, it must be assumed that Article 1 (t) was only intended to establish a wide interpretation of the concept of benefits.

2. A second series of questions, which may be deduced from Questions 2, 4 and 5, then asks the Court to determine the result of the inclusion of the right to reimbursement of contributions in the field of application of Regulation No 3, in other words to examine whether it is possible to deduce from that regulation that reimbursement is precluded if the applicant is compulsorily insured in another Member State. I must say at once that in my opinion Regulation No 3 does not contain sufficient indications, either in an express provision or in accordance with its meaning and purpose, to allow an affirmative answer to be given to this question. (a) The defendant Landesversicherungsanstalt, which takes the opposite point of view, has in this connexion made reference above all to Article 27 of Regulation No 3 and contended that for the purposes of the aggregation required thereunder it is necessary also to take into consideration insurance under the Netherlands General Old-Age Insurance Law. As a result of this aggregation it is possible for the applicant to derive rights from her German contribution payments and thereupon the essential reason for reimbursement of contributions no longer applies. In my opinion the Commission correctly emphasized with regard to that provision that it purports merely to provide for the aggregation of insurance periods in cases in which the objective of freedom of movement is not attained on the basis of national provisions alone. Thus Article 27 is intended to protect workers who exercise freedom of movement from suffering disadvantages. Although it must be acknowledged that the termination of insurance which reimbursement entails can be described as a disadvantage, the decisive fact is that under German law this is not a necessary legal consequence but depends upon the unfettered decision of the person concerned. In fact it is almost impossible to say that the protective purpose of Article 27 is so far-reaching that insured persons are intended to be protected from the disadvantageous consequences of their own freely-made decisions. If national law permits the reimbursement of contributions it cannot be deduced from Article 27 of Regulation No 3 that there is an obligation to maintain acquired rights. (b) The Commission has also correctly emphasized that the principle of the maintenance of paid-up compulsory contributions cannot be deduced from the objective of Regulation No 3, which is the protection of freedom of movement by means of the coordination of the national systems of social security. In fact, freedom of movement is not prejudiced by the reimbursement of compulsory contributions; it is even possible to say that freedom of movement is, on the contrary, encouraged thereby. However, although advantages for migrant workers may arise in this way, that cannot be attributed to Community law but to the fact that different systems of social security still co-exist. (c) Finally, it is also impossible to base an argument contrary to this view on Article 10 (2) of Regulation No 1408/71, according to which: ‘Where under the legislation of a Member State reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition shall not be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State.’ According to the abovementioned recitals of the preamble to the Commission's draft of Regulation No 1408/71 it is in fact quite clear that this is a new provision of Community law. It is henceforth to ensure the harmonization of the right to the reimbursement of contributions and the concept of ‘compulsory insurance’ was thereby first introduced into Community law. Accordingly, it is necessary to state with regard to the central question posed by the court making the reference that it is impossible to deduce from Regulation No 3 the principle that if the reimbursement of contributions is, under national law, conditional upon the person concerned having ceased to be subject to compulsory insurance, it is necessary to take into consideration compulsory insurance existing in another Member State.

3. This could in fact be regarded as a sufficient answer to the questions referred to the Court of Justice for a preliminary ruling. However, since Questions 2, 4 and 5 also appear to include the problem of the persons covered by the Community regulations, an observation must also be made thereon, particularly in case it may be held that Regulation No 3 contains a rule of assimilation as regards insurance periods completed in different Member States where the reimbursement of contributions is involved. I suggest that the Commission's view be followed on this point also when it emphasizes that such a rule of assimilation may perhaps apply to persons who are subject to compulsory insurance as workers. In this connexion the interpretation to be given to Article 4 (1) of Regulation No 3 is not so important. The Landesversicherungsanstalt has concluded from this article that for the purposes of Regulation No 3 the status of worker is maintained even when employment has ceased, because it also speaks of workers who ‘have been subject’ to the legislation of a Member State. It is more important that even Regulation No 1408/71, which expressly covers the case of reimbursement of contributions, clearly lays down at Article 10 the requirement that the applicant be subject to compulsory insurance in another Member State as a worker. According to the wording used this cannot be understood to mean that the fact of having formerly been a worker is sufficient; on the contrary, the compulsory insurance existing in another Member State must apply to workers if it is to be taken into consideration. In the present case it is obvious that the applicant does not fulfil this requirement. She is not a migrant worker because she did not take up residence in the Netherlands for the purpose of entering into employment When she left the Federal Republic of Germany she gave up working completely and is subject to compulsory insurance in the Netherlands merely as a resident, not as a worker, which is the important factor under Article 1 (a) of Regulation No 1408/71 for the purposes of treatment as a worker. Still on the assumption that specific rules for the reimbursement of contributions may be deduced from Regulation No 3, it would accordingly be necessary to state that they would be irrelevant in the case of the plaintiff because she is not a person covered by the regulation.

4. To summarize, the questions referred by the Landessozialgericht should be answered as follows: (a) The wording of Article 2 (1) of Regulation No 3 does not preclude the inclusion of claims regarding the domestic right of reimbursement of contributions in the matters covered by the regulation. (b) The right to reimbursement of contributions is not expressly governed by Regulation No 3. The requirement that compulsory insurance in another Member State be taken into account if, under national law, the reimbursement of contributions is conditional upon the person concerned not being subject to compulsory insurance may not be deduced from the meaning and purpose of that regulation.

( 1 ) Translated from the German.