WRITTEN QUESTION E-1373/98

by Nikitas Kaklamanis (UPE) to the Commission

(7 May 1998)

Subject: Insurance cover for citizens working in one Member State and performing military service in another Member State

The European Court of Justice recently ruled that military service was a basic duty of citizens vis-à-vis the state, but that it also created obligations for the state. The judgment handed down by the European Court of Justice rules that the state must compensate for any adverse consequences arising during military service and is bound by Community legislation to oblige employers to provide insurance cover for workers called up to perform military service, providing the labour contract has not been terminated before military call-up.

The question that arises here is whether this benefit may also be granted to persons working in a Member State other than their Member State of origin who are obliged to perform military service in the country of which they are nationals.

Will the Commission say whether such workers may claim insurance cover from the country in which they are working for the duration of military service performed in their Member State of origin and, if so, under which conditions?

Answer given by Mr Flynn on behalf of the Commission

(8 June 1998)

Under Community Law, Community nationals are subject to the same conditions under the social security schemes of the Member State in which they are employed as the nationals of that State (Council Regulation (EC) 118/97 of 2 December 1996 amending and updating Regulation (EEC) 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) 574/72 laying down the procedure for implementing Regulation (EEC) 1408/71)(1).

With regard to military service in particular, the Court of Justice has developed case law which gives precise answers to the questions asked by the Honourable Member. According to this case law, if and to the extent that military service is recognised as a period of insurance by the legislation of the State in which it is performed, the other Member States must recognise it as such for the purpose of calculating the benefit due, even if those periods did not have to be taken into account under its own legislation (cf. Judgment of 15 December 1993, Fabrizii et al, C-113/92, C-114/92 and C-56/92, ECR I-6707). Conversely, if they recognise it as such for their nationals, military service performed in another Member State must be recognised under the same conditions (cf. Judgment of 25 June 1997, Romero, C-131/96, ECR I-3659).

Similarly, a "social advantage" within the meaning of Council Regulation (EEC) 1612/68 of 15 October 1968 on freedom of movement for workers within the Community(2), which is accorded to nationals (length of military service taken into account when determining the length of service with the company), must also be granted to migrant workers who have performed their military service in their country of origin (Judgment of 15 October 1969, Ugliola, ECR 363).

Case law, however, is restrictive with regard to supplementary social protection. According to the Judgment of 14 March 1996 (De Vos, C-315/94, ECR I-1417), "a worker who is a national of one Member State and is employed in the territory of another Member State is not entitled to have payment of contributions (employer's and employee's contributions) to the supplementary old-age and survivors" pension scheme for workers in the public service continued, at the same level as would have been payable if the employment relationship had not been suspended because of his call-up for military service, where nationals of that State employed in the public service are so entitled when performing military service in that State". (For a detailed overview of the case law in this field, cf. Advocate General Cosmas" detailed analysis in Case C-248/96, Grahame, ECR 1997, I-6407).

(1) OJ L 28, 30.1.1997.

(2) OJ L 257, 19.10.1968.