CELEX: 61983CC0181
Language: en
Date: 1984-10-25
Title: Opinion of Mr Advocate General Lenz delivered on 25 October 1984. # A. Weber v Bestuur van de Nieuwe Algemene Bedrijfsvereniging. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Social security - Article 47 of Regulation nº 1408/71 - Calculation of the theoretical amount. # Case 181/83.

OPINION OF MR ADVOCATE GENERAL LENZ
   DELIVERED ON 25 OCTOBER 1984 (
         1
      )
   
      Mr President,
   
   
      Members of the Court,
   
   In the case on which I shall give my views today, the facts are as follows:
   
            A —
         
         
            The plaintiff, a Netherlands national, was employed in the Netherlands as a road-worker from 1932 until May 1950 and from June 1933 onwards paid contributions in accordance with the Netherlands Invalidity-Law. From May 1950 until October 1972 he worked as a self-employed paving contractor in the Netherlands, and until January 1965 paid voluntary contributions under the Invalidity Law. In December 1972 he moved — apparently on account of his wife's state of health — to Germany, where, after a period of unemployment, he took up employment in May 1973 as a surveyor's assistant. In June 1974 he became incapacitated for work and thereafter drew sickness benefits. In September 1974 he returned to the Netherlands, where, from September 1975 (until which time payment of the German sickness benefits apparently continued) he carried out light part-time work for a Netherlands firm.
            In June 1975 he applied for disability benefit to the Bestuur van de Nieuwe Algemene Bedrijfsvereniging [Board of the New General Trade Association], the defendant in the main proceedings. The application was approved by a decision dated September 1977; as a result the plaintiff received benefits, backdated to September 1975, on account of the disability which had commenced in June 1974, its severity being initially assessed at 55 to 65 % but from April 1977 at 80 to 100 %.
            The parties are in dispute over the level of the so-called “daily wage”, which serves as a basis, under the Netherlands Law on Disability Insurance (Wet op de Arbeidsongeschiktheidsversekering, hereinafter referred to as “the WAO”), for calculating the benefit due to the plaintiff. In establishing that daily wage, the defendant proceeded on the basis of the remuneration which the plaintiff received as a surveyor's assistant in the Federal Republic of Germany during his one year or so of employment, before he became incapacitated for work on 11 June 1974. The plaintiff, on the other hand, takes the view that the daily wage should properly be calculated by reference to the income which he received over a period of 40 years as a road-worker and foreman in the Netherlands. The court before which the matter was brought now wishes to know how to resolve that issue in accordance with Community law. It referred to the Court of Justice several questions, the wording of which may be found in the request for a preliminary ruling.
         
      
            B —
         
         
            In order to be able to understand and answer the questions submitted, it must be appreciated that there are two distinct types of invalidity insurance in the Member States of the European Communities (see Article 40 (1) of Regulation No 1408/71, and Annex IV thereto). Under the first type the amount of benefit is independent of the length of the insurance periods completed. Invalidity insurance schemes belonging to that type are known as risk schemes. The Commission, in its observations, designates them by the letter A. Under the other type of scheme, the amount of the benefit depends on the length of the insurance periods completed; it is known as a cumulative or endowment system. The Commission designates it by the letter B. The Netherlands scheme belongs to type A, whilst the German scheme belongs to type B. The plaintiff has completed periods of insurance under both types of scheme; at the onset of his disability he belonged to a type B scheme.
            
                     1.
                  
                  
                     The first question seeks to establish which provisions are relevant for the calculation of the “daily wage”. Article 46 (2) (a) of Regulation No 1408/71, about which the national court is inquiring, clearly applies to risk schemes (type A), for it lays down the method of calculation “if... the amount of the benefit does not depend on the length of the insurance periods”. Article 47, whose applicability in connection with the second sentence of Article 46 (2) (a) is now the subject of inquiry, governs the calculation of benefits by the competent institution of a Member State whose legislation on the calculation of benefits is of type B.
                     The Netherlands Government and the defendant in the main proceedings contend that Article 47 relates only to schemes under which the amount of benefit depends either on the length of the insured period and the remuneration received during that time or on the contributions paid during that time. The Netherlands Government relies on certain passages in the preamble to the draft of Regulation No 1408/71. There, with regard to what later became Article 47, emphasis is placed on the insurance periods completed in accordance with the legislation of other Member States. The defendant points to the European Convention on Social Security of 14 December 1972, Article 30 of which is similar to Article 47 and applies only to cumulative schemes. That provision, it is contended, is appropriate for those schemes, on grounds of simplification, because in many cases remuneration, contributions and other criteria relating to the distant past come into account. In the case of risk schemes such as that of the WAO, which concentrates only on earnings in the recent past, those criteria are irrelevant.
                     However, I agree with the Commission that it is hardly possible to justify such an extreme view. Under Article 40 (1), a worker who has been successively or alternately subject to the legislation of two or more Member States, of which at least one belongs to type B, is to receive benefits under the provisions of Chapter 3. The plaintiff in the main proceedings worked successively in the Netherlands, the Federal Republic of Germany and then again in the Netherlands. He thus falls unequivocally within the ambit of Article 40 (1). Accordingly, Chapter 3 of Regulation No 1408/71 becomes applicable to the calculation of his benefits. Chapter 3 comprises Articles 44 to 51. In a case such as this, therefore, Articles 45 and 46 inter alia are applicable; in principle, however, reference should also be made to Article 47 with its additional provisions for the calculation of benefits, relating as it docs to Article 46 (2) as a whole. Furthermore, the Commission has convincingly demonstrated that this can be wholly logical even in the case of risk schemes. Such would be the case if the claimant is, on becoming incapacitated for work, subject to the legislation of the country in which the claim is made and that legislation makes the claim dependent on the completion of certain periods of insurance or residence (as occurs in France and Belgium), and if, further, the stipulated requirements can be fulfilled only by aggregating, pursuant to Article 45 (1), the periods of insurance or residence completed in different Member States. The result may then be that the reference period governing the calculation of benefit includes insurance periods completed in other Member States. In such a case it seems quite defensible to make use of the simplifying arrangements under Article 47.
                     In the present instance, however, it is not the aggregation of insurance periods which is in dispute but the establishment of the insurance periods which are to determine the calculation of the “daily wage”. If in such a case the provisions on the calculation of benefits under a cumulative system were to be applied to the calculation of benefits under a risk system the result might be that the requisite calculation would have to be performed by reference to wages earned in the distant past. In the present instance it would be necessary to return to the 1950s, that is to say, inquiries would have to be made into incomes for which, under Netherlands law, no records are kept by the local insurance institution. The incomes would therefore be difficult to ascertain and could, in any event, hardly afford evidence of the loss of earnings due to the disability, which must be compensated for under the Netherlands type A scheme. Such a procedure would, in addition, entail a considerable — perhaps unintended — change to substantive national law, because the determining factor would no longer be the income received in a reference period clearly limited to two years but would include the incomes of earlier periods. It cannot, indeed, be assumed that such is the purpose of Regulation No 1408/71, which does not seek to harmonize national law but only — as may be seen from its preamble, especially the second, fifth and seventh recitals — to coordinate the existing laws. In particular, no such harmonizing intent may be inferred from “additional” provisions of a technical nature, such as Article 47, the main function of which is to simplify administrative procedures, not to complicate them. The principle therefore remains that, in the unanimous opinion of all those involved in the proceedings, the fundamental rule contained in the second sentence of Article 46 (2) (a) must, in the circumstances of this case, take precedence. This means that, under a type A scheme, which is not concerned with the length of the insurance periods completed, the national rules for ascertaining the income attributable to a reference period remain decisive. The additional provisions of Article 47, on the other hand, are to be disregarded wherever they conflict with the national law applicable under Article 46, as is the case with the WAO.
                     The national court points, in support of the view that Article 47 is applicable, to largely similar provisions of Regulation No 1408/71, namely Articles 23 and 58. As may clearly be deduced from their position in the general scheme of the regulation, however, those provisions relate to quite different forms of insurance, namely sickness insurance (Article 23) and insurance against accidents at work and occupational disease (Article 58). The present case deals with invalidity insurance, the structure of which is fundamentally different. Only here do types A and B exist.
                     The first question submitted by the national court should therefore be answered as follows:
                     In principle, Article 47 (1) continues to apply when the second sentence of Article 46 (2) (a) is applicable. The application of that provision may not, however, lead to a result which conflicts with the national legislation to which Article 46 principally refers. Should such a conflict arise, the calculation rules under Article 46 have primacy over the additional provisions of Article 47, which serve merely to simplify administrative procedures.
                  
               
                     2.
                  
                  
                     The second question asks whether, as the defendant in the main proceedings contends and as indeed the question's various components tend to suggest, Article 47 (1) (a) and (b) is also applicable to a scheme such as the WAO in circumstances such as those of the present case. In view of the foregoing, that question should be answered in the negative. The defendant in the main proceedings has rightly submitted that the Netherlands scheme proceeds on the basis of the daily remuneration received in the claimant's usual occupation. Article 47, however, is silent about occupation. It refers only to “earnings”. Furthermore, the Netherlands scheme, as the defendant has stated, does not provide for records of insurance periods, even though these might be essential for the application of Article 47.
                     Lastly, there is a practical difficulty inasmuch as, even if such an approach were to be attempted in this case, reference back to 1952 would have to be made. Enough has already been said about the evidential value of the information thereby retrieved.
                  
               
                     3.
                  
                  
                     No answer to the third question is called for, because the latter is raised only in the eventuality of an affirmative answer to the second question. That eventuality, has not, however, materialized. In order to avoid any misunderstanding, I should simply like to clarify the following. The differing answers proposed by the defendant and the Commission do not really conflict. They are both of the opinion that paragraphs (a) and (b) of Article 47 (1) arc inapplicable in the present instance. If those provisions are incompatible with the structure of national legislation, then they must be subordinated to the principle laid down in Article 46 (2) (a) (calculation of benefits in accordance with the national legislation administered by the institution in question). If it is apparent that national legislation provides that only the remuneration received during a certain period may be taken into consideration, and if in that period income arose only in another Member State, then that legislation must prevail. In other words, no prohibition as contemplated by the third question may be inferred from Community law.
                  
               
      
            C —
         
         
            Accordingly the answers to be given to the questions raised by the Centrale Raad van Beroep are as follows:
            Article 47 (1) of Regulation No 1408/71 continues, in principle, to apply even where the second sentence of Article 46 (2) (a) comes into operation; that is to say where an invalidity benefit is to be determined under a risk scheme winch is not concerned with the length of the insurance periods completed but in which the remuneration received by the insured during a period immediately preceding his incapacitation for work serves to determine the relevant loss of earnings.
            Where a claim to benefit under a risk scheme arises only if certain insurance periods are taken into consideration, a Member State operating such a scheme is not precluded, when calculating benefit under Article 46 (2) (a) trom proceeding on the basis of the last remuneration received by the claimant in another Member State immediately before he became incapacitated for work.
         
      (
         1
      )	Translated from the German.