CELEX: 61969CC0068
Language: en
Date: 1970-03-11
Title: Opinion of Mr Advocate General Roemer delivered on 11 March 1970. # Bundesknappschaft v Élisabeth Brock. # Reference for a preliminary ruling: Bundessozialgericht - Germany. # Case 68-69.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 11 MARCH 1970 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The problem in the national proceedings which has given rise to the question which has to be dealt with today is concerned with the has taking into account of so-called interrupted periods when determining a pension under the German Reichsknappschaftsgesetz (theGerman law relationg to the Federal Mineworkers' Association) which governs the pensions insurance of mineworkers. Under Article 57 of this law interrupted periods are periods during which any mineworker's employment covered by compulsory insurance is interrupted by reason of sickness, accident or other events as set out therein in detail and for this reason he paid no contributions. However under Article 56 of the Reichsknappschaftsgesetz interrupted periods are added to the other insurance years to be taken into account, that is to say, are treated as insurance periods in certain circumstances; to be more precise, if contributions relating to a employment covered by compulsory pensions insurance have been paid in respect of one half of the period from the date of affiliation to the insurance scheme to the calendar month in which the risk materialized (it is called ‘Halbbelegung’ (‘50 % cover’)), provided however that contributions have been paid for not less than 60 months. With regard to contribution periods completed abroad there were no special provisions concerning 50 % cover until Regulation No 130/63 of the Council of 18 December 1963 was adopted. Article 6 of this regulation of the Council, with reference to Annex G/I-B to Regulation No 3 entitled ‘Implementation of German Legislation’, provided that ‘In order to determine whether contribution periods which under German law are treated as interrupted periods … must be taken into account as such contributions paid under the law of another Member State and affiliation to pensions insurance scheme of another Member State shall be assimilated to contributions paid under German law and to affiliation to a German pensions insurance scheme’. This provision entered into force on 1 January 1964 in accordance with Article 6 (2) of this regulation.
      It is also relevant in the main action which is concerned with the right to a pension of the widow of and legal successor to a former German mineworker who died on 18 July 1968, whose insurance life apparently included interrupted periods within the meaning of the Reichsknappschaftsgesetz and who in addition had paid contributions under the Netherlands mineworkers' insurance scheme from 7 September 1927 to 1 November 1933. When this insured person was disabled he received first of all from the Bundesknappschaft pursuant to a Decision of 3 December 1959 with effect from 1 December 1958 the total benefits to which he was entitled under German law from the Mineworkers' Association and workers' pension insurance schemes. When he attained the age of 65 years the pension was converted by a Decision of 10 March 1961 with effect from 1 July 1959 into a mineworker's old-age pension. When Regulation No 3 concerning social security for migrant workers entered into force it became necessary to review the rent in the light of its provisions. In carrying out this review the contributions paid for 75 months under the Netherlands mineworkers' insurance scheme were taken into account in the relevant Decision of 27 August 1962. But in addition the question also arose whether the interrupted periods established by the insured person could also be taken into account, that is to say, whether the requisite ‘Halbbelegung’ (‘50 % cover’) for this purpose could be made up by including the contributions paid in the Netherlands. The Bundesknappschaft declined to do this and therefore when reviewing the pension on 1 January 1959 only took into account the fixed interrupted period provided by paragraph (2) of Article 2 (9) of the Knappschaftsrentenversicherung-Neuregelunggesetz of 21 May 1957 (Law of 21 May 1957 amending the law relating to the pensions insurance for mineworkers).
      This initiated the legal dispute concerning the pension which the defendant in the main action carried on as her husband's legal successor after his death. The insured was at first unsuccessful in contesting the pensions decision. On the other hand in the proceedings which he brought in the court of first instance he was successful to the extent that the Sozialgericht (the Social Court) Hanover in its judgment of 4 December 1963 held that contribution periods completed in the Netherlands could be taken into account for the purpose of calculating the ‘50 % cover’ provided by Article 56 of the Reichknappschaftgesetz. The Landessozialgericht (Higher Social Court) of Lower Saxony then modified this decision by its judgment of 16 August 1966 which was delivered having regard to Article 6 of Regulation No 130/63 of the Council which had in the meantime entered into force, to the extent that only contribution periods completed in the Netherlands after 1 January 1964 (the date when Article 6 of Regulation No 130/63 entered into force) could be taken into account when calculating the 50 % cover. But that was not the end of the matter; on the contrary the Bundesknappschaft appealed against this judgment and thus brought the matter before the Bundessozialgericht where it is still pending. In the further appeal proceedings the essence of the Bundesknappschaft's argument was that Regulation No 130/63 of the Council cannot be applied to the risk insured against, because that risk materialized before it entered into force (namely in July 1959). Further Article 53 (4) of Regulation No 3 is not applicable, since it only covers cases which had already been determined before 1 January 1959.
      This meant that the Bundessozialgericht had to interpret Community law. As this court was faced with certain problems of interpretation it stayed the proceedings and referred to the Court under Article 177 of the Treaty establishing the European Economic Community for a preliminary ruling the following questions :
      
               1.
            
            
               Does the procedure adopted by paragraph (1) of Annex G/I-B to Regulation No 3 as amended by Article 5 of Regulation EEC No 130/63 also apply to pensions within the meaning of Regulation No 3 paid in respect of risks which materialized before this amendment entered into force (1 January 1964)?
            
         
               2.
            
            
               If so, are these provisions to be reviewed automatically or only at the request of the person concerned and with effect from what date?
            
         In accordance with Article 20 of the Protocol on the Statute of the Court of Justice the Government of the Federal Republic of Germany and the Commission of the EEC have submitted their observations on these questions. The Bundesknappschaft has stated that it waives its right to submit written observations. The defendant in the main action has referred to the grounds of the judgment of the Landessozialgericht of Lower Saxony of 16 August 1966. During the oral proceedings on 3 March 1970 only the representative of the Commission made submissions to the Court.
      We must now ask ourselves what appear to be the appropriate answers to the questions referred having regard to the foregoing.
      Question 1
      The first point to decide is whether Article 6 of Regulation No 130/63 of the Council, which amended Annex G/I-B to Regulation No 3 with effect from 1 January 1964, also applies to risks which materialized before 1 January 1964 and in respect of which a pension has already been determined.
      Having regard to the convincing arguments of the parties to the proceedings the answer to this question presents no difficulty, all the more because the view put forward by the Federal Government whose proposal it was that the procedure in Annex G/I-B should be extended to broken periods, is shared by the Commission.
      The principle to be followed has been clearly stated by the Court, also in a social security case referred for a preliminary ruling, namely Case 44/65 (Hessische Knappschaft v Maison Singer et Fils [1965] E.C.R. 973). In that case the Court, in addition to declaring that Regulation No 3 was incapable of giving rise before 1 January 1959 to the rights and duties referred to therein went on to say:
      ‘But events occurring before that date may, once the Regulation has entered into force, give rise to those rights and duties. In the absence of an express provision to the contrary, its rules must be regarded as taking effect as soon as they enter into force, in as much as they determine in the present legal consequences of actions in the past’.
      In view of this principle it would have been necessary to include express provisions to the contrary if it had been intended that Article 6 (1) (B) of Regulation No 130/63 was only to apply to risks materializing after it entered into force. In the absence of any such contrary provisions it can be readily assumed that, when calculating German interrupted periods, contribution periods completed in other Member States can also be taken into account, even in the case of risks which materialized before 1 January 1964.
      The transitional provisions of Article 53 of Regulation No 3 also support the correctness of this view. The wording of Article 50 of Regulation No 3 which reads inter alia‘The special procedures … set out in Annex G, including any provisions amending or supplementing the said Annexes shall form an integral part of this regulation’ shows that this view is also applicable to the procedure set out in Annex G and its later amendments. So far as Article 53 refers to the entry into force of provisions, it goes without saying that so far as later amendments and supplementary provisions are concerned, the decisive factor is the time when they enter into force. The application of this rule to the present case produces the following result: in application of the principle laid down in Article 53 (1) that no person shall be entitled by virtue of Regulation No 3 to payment of benefits in respect of a period before that date on which the regulation comes into force, there is no right to an increased pension in respect of the period before Regulation No 130/63 entered into force, that is to say, in respect of the period before the amendment of Annex G whereby broken periods were included in the procedure set out in Part I-B. Since however under Article 53 (3) ‘benefit shall be payable even if it relates to an event before the date on which it enters into force’, this provision-applied to Regulation No 130/63 — must also apply to risks which materialized before it entered into force and apply when deciding whether to take into account contribution periods in other Member States in calculating the interrupted periods valid under German law. Further, as the Federal Government in particular has emphasized, reference must be made to Article 53 (4) which provedes that the rights of persons for whom a pension was determined before Regulation No 3 entered into force may be reviewed. Again if this provision is applied to the entry into force of Regulation No 130/63 the result is that pensions already determined before it entered into force have to be reviewed and of course, with the consequence as expressed in Article 53 (4), that ‘The effect of the review shall be to grant beneficiaries as from the entry into force of this regulation the same rights as they would have had if the regulation had been in force at the date of award’. Accordingly the original decision on pensions of 3 December 1959 must be amended as from the coming into force of Regulation No 130/63 as if on that date, in order to determine the interrupted periods in Germany, account had been taken of contribution periods completed in other Member States.
      The concurring arguments developed by the Federal Government and the Commission clearly show that the first of the questions referred must be answered in the affirmative.
      The second question
      The second question, as you will recall, falls into two parts: the first part concerns the determination of the date with effect from which pensions had already been determined on 1 January 1964 and are affected by the new procedure in Annex G/I-B can be reviewed; the other part relates to the question whether the review can only be carried out at the request of the persons concerned or whether there can also be an automatic review.
      
               (a)
            
            
               The Federal Government and the Commission have given what is essentially the same and in my opinion the correct opinion as regards the first part of this question. In fact the date in question is 1 January 1964, that is to say, the date of the entry into force'of the procedure set out in Article 6 (1) (B) which is mentioned in Article 6 (2) of Regulation No 130/63. Once again Article 53 of Regulation No 3 can be cited in support of this view. It is true that paragraph (1) of this article only excludes the payment of benefits in respect of a period before the date on which Regulation No 3 entered into force, that is to say, in respect of the period before 1 January 1959. However when, as in this case, later substantive additions of this regulation are at issue the exclusion of the payment of benefits embodied in Article 53 must accordingly be related to the date when those additions entered into force, that is to say, 1 January 1964.
               The Commission, as well as making these submissions, raised the further question, which it nevertheless answered in the negative, whether a procedure corresponding to the present procedure set out in paragraph (1) of Annex G/I-B had not been in existence before 1 January 1964 and whether for this reason a review could be considered for an earlier period. It proceeds on the basis that interrupted periods are assimilated periods within the meaning of Article 1 (r) of Regulation No 3 and it invites the Court to consider whether, with reference to Articles 27 and 28 of Regulation No 3, when checking the Halbbelegung (50 % cover), contributions to the Netherlands and German pensions insurance schemes must not be treated on the same footing. In fact it is clear, however, that a review, with effect from a date prior to the entry into force of Regulation No 130 of the pension in question in the main action cannot possibly be justified in this way. As the Commission itself has stated this emerges from the previous case-law relating to similar questions. In Case 14/67, Welchner [1967] E.C.R. 331 it was emphasized that, in so far as Regulation No 3 takes ‘assimilated periods’ into account, its intention is neither to modify nor to supplement national law. In particular the Court refers to the conditions under which national law will regard given periods as being equivalent to insurance periods properly so-called. Therefore the interpretation of the concept ‘interrupted periods’ and the question whether they can be taken into account depends upon fulfilment of the actual conditions laid down by national laws and contribution periods completed in other Member States could not be taken into account for the purpose of calculating interrupted periods under national law without the special procedure introduced by Regulation No 130/63.
               Therefore with regard to the first part of the second question it has to be recognized that for the purpose of reviewing the pension which is the subject-matter of the main action the operative date is the date when Regulation No 130 entered into force or more precisely the date when Article 6(1) (B) thereof entered into force.
            
         
               (b)
            
            
               With regard to the second part of the second question the views of the Federal Government and the Commission are not quite the same. The Federal Government relies solely on the wording of Article 53 of Regulation No 3 and in fact it does appear that the firm conclusion can be drawn from this provision, read in conjunction with Article 50 of Regulation No 3, that pensions which had already been determined on 1 January 1964 may only be reviewed at the request of the person concerned. This view supported by the wording of Article 53 (4) which reads ‘Applications for review shall be submitted within two years of the date on which this regulation enters into force’ (as I have already mentioned, in the case of the amended version of Annex G the two year period runs from the entry into force of Regulation No 130/63). Moreover Article 53 (3), which also states that an application must be made by the person concerned, also supports this view.
               Nevertheless the Commission raises the question whether on this point the answer could not be framed in a slightly more flexible way. It takes the view that, where national law provides for an automatic review, the before-mentioned requirement that applications be made by the person concerned should not be enforced if the application of the relevant provision of Community law produces a more favourable result for the person entitled to the pension. In this connexion it refers to the case-law concerning other social security cases, namely Cases 92/63 and 1/67, from which the principle can be deduced that, if interpretation of Regulation No 3 raises any doubt, it must be construed in favour of the migrant worker. On the basis of this principle the Commission therefore construes the requirement in Article 53 (4) that a review can only be carried out at the request of the person concerned as meaning only that there can be no automatic review if the result would be less favourable to the applicant. In fact such a slight variation of the answer to the second question can be justified with reference to the main trend of our social security law; an argument pointing in this direction — as the representative of the Commission showed during the oral procedure — can also be found in Article 53 (5) of Regulation No 3. I therefore consider it in every way appropriate for the Court in its preliminary ruling, or at least in the grounds of its judgment, to approve the line of argument developed by the Commission.
            
         Summary
      The questions referred by the Bundessozialgericht can therefore be answered as follows:
      
               1.
            
            
               The procedure set out in paragraph (1) of Annex G/I—B to Regulation No 3, as set forth in Regulation No 130/63, also applies to pensions already determined, arising out of risks which materialized before the entry into force of Regulation No 130/63, that is to say, before 1 January 1964;
            
         
               2.
            
            
               In the cases mentioned at (1) above the review takes effect at the earliest as from 1 January 1964. Under Community law the review is to be carried out at the request of the person entitled to the pension.
            
         The Court does not have to make an order as to costs, since the decision as to costs, as in other references to the Court for preliminary rulings, is a matter for the court making the reference.
      (
            1
         )	Translated from the German.