Jean-Louis Thévenon and Stadt Speyer - Sozialamt v Landesversicherungsanstalt Rheinland-Pfalz.
Date: 1995-11-09
2 That question was raised in proceedings between, on the one hand, Mr Thévenon and the Sozialamt (Social Assistance Office) of the city of Speyer and, on the other, the Landesversicherungsanstalt Rheinland-Pfalz (Rhineland-Palatinate Regional Insurance Office, hereinafter "the Landesversicherungsanstalt") concerning the calculation of Mr Thévenon' s invalidity pension.
15 Next, the Court stressed in the judgment in Case 82/72 Walder [1973] ECR 599, paragraphs 6 and 7, relating to the interpretation of Articles 5 and 6 of Regulation No 3 and Articles 6 and 7 of Regulation No 1408/71, that it is clear from those provisions that the replacement by the Community regulations of the provisions of social security conventions concluded between Member States is mandatory in nature and does not allow of exceptions, save for the cases expressly stipulated by the regulations, even where the social security conventions are more advantageous to the persons covered by them than the Community regulations.
16 The plaintiffs in the main action argue, however, that Mr Thévenon' s pension has to be calculated in accordance with the provisions of the Franco-German convention, since the Court held on similar facts in Roenfeldt that, in the case of migrant workers, bilateral social security conventions must continue to apply, even after the entry into force of Regulation No 1408/71, where an insured person is thereby placed in a more favourable position.
17 That argument cannot be accepted.
18 It is appropriate, first, briefly to recall the factual and legal circumstances of the Roenfeldt case, relating to the application of the provisions of a social security convention between the Kingdom of Denmark and the Federal Republic of Germany, which for the most part were similar to those at issue in this case.
19 Mr Roenfeldt, a German national, had worked initially in Germany from 1941 to 1957 and then in Denmark until 1971, during which periods he had paid contributions to the German and Danish social insurance schemes respectively. From 1971 onwards he worked in Germany and was accordingly subject to compulsory insurance there.
20 When he was about to reach the age of 63, Mr Roenfeldt took steps to obtain early retirement, as is permitted under German legislation. However, he was unable to do so because, according to the Federal Insurance Office for Salaried Employees, contributions paid in Denmark could not be taken into account for the calculation of pension rights in Germany until the applicant had reached the general statutory age-limit under Danish law, namely 67 years.
21 Mr Roenfeldt brought proceedings to annul that decision, arguing that, irrespective of the retirement age laid down by Danish legislation, the contribution periods completed in Denmark had to be taken into account in calculating the German pension. In support of that argument he cited the social insurance convention concluded between the Federal Republic of Germany and the Kingdom of Denmark.
22 At the time of Mr Roenfeldt' s return to Germany, the Kingdom of Denmark had not yet joined the European Communities and the convention between the two countries was still in force, having not yet been replaced by Regulation No 1408/71.
23 The Court found in its judgment, first, that the German-Danish convention had been replaced with effect from 1 April 1973 by the rules of Community law contained in Regulation No 1408/71 (paragraph 14) and that the question was therefore whether, and how, Community law required account to be taken of insurance periods completed in Denmark 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 (paragraph 15).
24 In replying to that question, the Court ruled that Articles 48 and 51 of the Treaty preclude the loss of social security advantages for the workers concerned which would result from the inapplicability, following the entry into force of Regulation No 1408/71, of conventions operating between two or more Member States and incorporated in their national law.
25 However, as argued by the governments and institutions which have submitted observations, that principle cannot apply in factual and legal circumstances such as those obtaining in this case.
26 A worker such as Mr Thévenon, who did not exercise his right to freedom of movement until after the entry into force of Regulation No 1408/71, that is to say, after the Franco-German convention had already been replaced by the regulation as regards persons and matters covered by it, cannot claim to have suffered the loss of social security advantages which he would have enjoyed under the Franco-German convention.
27 Consequently, the particular circumstances which prompted the Court in Roenfeldt to allow the exception to the rule laid down by Article 6 of Regulation No 1408/71 are not present in a case such as that which is the subject of the main proceedings.
28 Accordingly, it should be stated in reply to the question from the national court that Articles 48(2) and 51 of the Treaty must be interpreted as meaning that they do not preclude the replacement by Regulation No 1408/71, pursuant to Article 6 thereof, of a convention binding two Member States exclusively where, prior to the entry into force of Regulation No 1408/71, an insured person completed insurance periods in only one of the signatory States, even where the application of the bilateral social security convention would have placed that insured person in a more favourable position.