Ludwig Rönfeldt v Bundesversicherungsanstalt für Angestellte.
Date: 1991-02-07
12 With regard to the doubts expressed by the Sozialgericht as to the compatibility with Community law of national provisions establishing different age limits for retirement, it should be noted that the Court has consistently held (see in particular the judgment of 5 July 1988 in Case 21/87 Borowitz v Bundesversicherungsanstalt fuer Angestellte [1988] ECR 3715, at paragraph 23) that Regulation No 1408/71 does not set up a common scheme of social security but allows different national schemes to exist. As the Court has further held on several occasions (see in particular the judgment of 15 January 1986 in Case 41/84 Pinna v Caisse d' allocations familiales [1986] ECR 1, at paragraph 20), Article 51 leaves in being differences between the Member States' social security systems and, consequently, in the rights of persons working in the Member States. It follows that substantive and procedural differences between the social security systems of individual Member States are unaffected by Article 51 of the Treaty.
14 However, it is clear from Article 6 of Regulation No 1408/71 that subject to the exemptions under Articles 7, 8 and 46(4) the regulation replaces, as regards persons and matters which it covers, the provisions of any social security convention binding two or more Member States. Since the provisions of the German-Danish convention are not included in those express exemptions, they could no longer apply to benefits after Regulation No 1408/71 entered into force in Denmark. Those provisions of the German-Danish convention were therefore replaced with effect from 1 April 1973 by the rules of Community law contained in the regulation.
15 Accordingly, the question is whether, and how, Community law requires account to be taken of insurance periods completed in Denmark, and of contributions paid there before Regulation No 1408/71 entered into force in that country following its accession to the Communities, for the purpose of granting a retirement pension in some other Member State.
16 According to Article 94(2) of Regulation No 1408/71 "all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before the date of entry into force of this Regulation shall be taken into consideration for the determination of rights to benefits under this Regulation". It follows that in the case before the national court account must also be taken, for the purpose of determining pension rights in Germany, of the periods of insurance completed under Danish legislation before the date on which the regulation entered into force in Denmark.
21 In those circumstances, the question submitted by the Sozialgericht Stuttgart must be construed as asking whether the loss of social security advantages which the workers concerned incur because conventions between Member States have been rendered inoperative by the entry into force of Regulation No 1408/71 is compatible with Articles 48(2) and 51 of the Treaty.
22 In the Walder judgment of 7 June 1973 (Case 32/72, [1973] ECR 599, at paragraphs 6 and 7) concerning the interpretation of Articles 6 and 7 of Regulation No 1408/71, the Court ruled that it was clear from those articles that the replacement by the regulation of the provisions of social security conventions between Member States was mandatory in nature and did not allow of exceptions, save for the cases expressly set out in the regulation.
26 According to the case-law of the Court (see in particular the judgments of 24 October 1975 in Case 24/75 Petroni v ONPTS [1975] ECR 1149, at paragraph 13, 25 February 1986 in Case 254/84 De Jong v Sociale Verzekeringsbank [1986] ECR 671, at paragraph 15, and 14 December 1989 in Case C-168/88 Dammer v Securex Kinderbijslagfonds [1989] ECR 4553, at paragraph 21), the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the legislation of a single Member State. In its judgment of 9 July 1980 in Case 807/79 (Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205, at paragraph 7), the Court accordingly concluded that the application of Community rules could not bring about a reduction in the benefits awarded by virtue of the legislation of a single Member State.
27 On a proper construction of that case-law, "benefits awarded by virtue of the legislation of a single Member State" must mean not only the benefits provided under national law alone, as formulated by national legislators, but also the benefits available under the provisions of the international social security conventions in force between two or more Member States and incorporated in their national law, which have the effect of placing the worker concerned in a more favourable position than is accorded by Community provisions.
29 It follows from the foregoing that the answer to be given to the question referred to the Court is that Articles 48(2) and 51 of the EEC Treaty must be interpreted as precluding the loss of social security advantages for the workers concerned which would result from the inapplicability, following the entry into force of Council Regulation (EEC) No 1408/71, of conventions operating between two or more Member States and incorporated in their national law.