Gerda Jansen v Landesversicherungsanstalt Rheinprovinz.
Date: 1977-05-05
7 THE SAME IDEAS UNDERLIE REGULATION NO 1408/71 , WHICH IN THE MEANTIME HAS REPLACED REGULATION NO 3 .
ARTICLE 4 OF THAT REGULATION , WHICH IS IDENTICAL IN SUBSTANCE TO ARTICLE 2 OF REGULATION NO 3 , DETERMINES THE MATTERS COVERED BY THE NEW PROVISIONS IN TERMS WHICH MAKE IT CLEAR THAT THE NATIONAL SOCIAL SECURITY SCHEMES ARE SUBJECT IN THEIR ENTIRETY TO THE APPLICATION OF THE RULES OF COMMUNITY LAW .

HOWEVER , UNLIKE REGULATION NO 3 , REGULATION NO 1408/71 INCLUDES , AT ARTICLE 10 ( 2 ), A SPECIFIC PROVISION RELATING TO THE REIMBURSEMENT OF CONTRIBUTIONS , UNDER 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 ' .

IN COMPARISON WITH REGULATION NO 3 , THAT PROVISION INTRODUCES A NEW RULE , UNDER WHICH , IN ORDER TO DECIDE THE QUESTION WHETHER FOR THE PURPOSES OF REIMBURSEMENT OF CONTRIBUTIONS A PERSON HAS CEASED TO BE SUBJECT TO COMPULSORY INSURANCE IN A PARTICULAR MEMBER STATE , HIS STATUS WITH REGARD TO THE SOCIAL SECURITY LEGISLATION OF ANY OTHER MEMBER STATE MUST BE TAKEN INTO CONSIDERATION .

SINCE IT IS A NEW PROVISION , ARTICLE 10 ( 2 ) OF REGULATION NO 1408/71 CANNOT BE EXTENDED TO FACTS WHICH OCCURRED OUTSIDE THE PERIOD COVERED BY THE REGULATION .

IN CONCLUSION , THE IMPORTANT POINT IS THAT , ALTHOUGH REGULATION NO 3 ALSO APPLIED TO THE REIMBURSEMENT OF CONTRIBUTIONS , ONLY ITS GENERAL PROVISIONS COULD HAVE ANY EFFECT ON THE CONDITIONS OF SUCH REIMBURSEMENT .
12 THE PURPOSE OF THE PROVISIONS OF ARTICLE 51 OF THE EEC TREATY AND OF THE REGULATIONS ADOPTED TO GIVE IT EFFECT IS TO ELIMINATE ANY DISADVANTAGES WHICH WORKERS MIGHT SUFFER AS A RESULT OF THE FACT THAT THEIR SOCIAL SECURITY RECORD WAS COMPLETED UNDER SYSTEMS LAID DOWN BY THE NATIONAL LEGISLATION OF DIFFERENT STATES .

ALTHOUGH THOSE PROVISIONS ENSURE THAT , FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT , MIGRANT WORKERS ENJOY AGGREGATION OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAW OF THE SEVERAL COUNTRIES , THEY CANNOT HOWEVER BE INTERPRETED , IN THE ABSENCE OF EXPRESS PROVISIONS , AS PREVENTING PERSONS SO FAVOURED FROM EXERCISING THE LEGAL OPTIONS OPEN TO THEM UNDER THE LEGISLATION OF ONE OR OTHER OF THE MEMBER STATES , SUCH AS THE RIGHT OF APPLYING IN CERTAIN CIRCUMSTANCES FOR THE REIMBURSEMENT OF SOCIAL SECURITY CONTRIBUTIONS .

INDEED , SUCH AN INTERPRETATION WOULD CONFLICT WITH THE RESPECT WHICH MUST BE SHOWN , IN THE ABSENCE OF PROVISIONS TO THE CONTRARY , FOR THE FREEDOM OF PERSONS WHO ARE MEMBERS OF VARIOUS SOCIAL SECURITY SYSTEMS TO DECIDE ON THEIR OWN BEST INTERESTS , WITHIN THE FRAMEWORK OF THE OPTIONS OPEN TO THEM UNDER A NATIONAL LEGISLATION .

THEREFORE , COMMUNITY LAW , AS IT STOOD AT THE TIME OF THE ADOPTION OF REGULATION NO 3 , CANNOT BE INTERPRETED AS EXCLUDING AN OPTION AVAILABLE UNDER A NATIONAL LEGISLATION WITH REGARD TO THE REIMBURSEMENT OF SOCIAL SECURITY CONTRIBUTIONS .