61976J0079

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY SYSTEM - AREA OF APPLICATION

( EEC TREATY , ARTICLE 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY AND PENSIONS INSURANCE - GERMAN LEGISLATION - INSURANCE PERIODS COMPLETED BEFORE 1945 OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND WEST BERLIN - BENEFITS - COMMUNITY LAW - INAPPLICABILITY

1 . LEGISLATION WHICH CONFERS ON THE BENEFICIARIES A LEGALLY DEFINED POSITION WHICH INVOLVES NO INDIVUDUAL AND DISCRECTIONARY ASSESSMENT OF NEED OR PERSONAL CIRCUMSTANCES COMES IN PRINCIPLE WITHIN THE FIELD OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF REGULATIONS NOS 3 AND 1408/71 .

2 . WHERE THE COMPETENT INSURANCE INSTITUTIONS TO WHICH THE PERSONS REFERRED TO BY GERMAN LEGISLATION HAD BEEN AFFILIATED BEFORE 1945 NO LONGER EXIST OR ARE SITUATED OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND THE PURPOSE OF SUCH LEGISLATION IS TO ALLEVIATE CERTAIN SITUATIONS WHICH AROSE OUT OF EVENTS CONNECTED WITH THE NATIONAL SOCIALIST REGIME AND THE SECOND WORLD WAR AND WHERE THE PAYMENT OF THE BENEFITS IN QUESTION TO NATIONALS IS OF A DISCRETIONARY NATURE WHERE SUCH NATIONALS ARE RESIDING ABROAD , THOSE BENEFITS ARE NOT TO BE REGARDED AS IN THE NATURE OF SOCIAL SECURITY .

IN CASE 79/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CARLO FOSSI , FLORENCE ,

AND

BUNDESKNAPPSCHAFT , BOCHUM ,

ON THE INTERPRETATION OF ARTICLE 8 OF REGULATION NO 3 AND OF ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 ,

1 BY ORDER OF 29 JUNE 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 6 AUGUST , THE BUNDESSOZIALGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 8 OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JO 1958 , P . 561 ) AND OF ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION , 1971 ( II ), P . 416 ).

2 THE QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION CONCERNING THE RIGHT OF THE PLAINTIFF IN THE MAIN ACTION , AN ITALIAN NATIONAL RESIDING IN ITALY WHO WORKED FROM 1 JUNE 1942 TO 1 JULY 1943 IN A MINE IN THE SUDETENLAND , WHICH WAS AT THAT TIME PART OF THE FORMER GERMAN REICH , TO A PENSION PAYABLE UNDER GERMAN LEGISLATION ON THE GROUND OF TOTAL DISABLEMENT .

DURING THAT PERIOD THE PLAINTIFF WAS SUBJECT TO THE COMPULSORY INVALIDITY AND PENSIONS INSURANCE SCHEME OF THE THEN COMPETENT SOCIAL SECURITY INSTITUTION FOR MINEWORKERS IN THE SUDETENLAND ( THE SUDETENDEUTSCHE KNAPPSCHAFT ) ( SUDETEN GERMAN MINEWORKERS ' ASSOCIATION ) WHICH WAS GOVERNED BY THE REICHSKNAPPSCHAFTSGESETZ ( LAW OF THE REICH GOVERNING SOCIAL SECURITY FOR MINEWORKERS , HEREINAFTER REFERRED TO AS ' THE RKG ' ).

IN 1958 THE PLAINTIFF IN THE MAIN ACTION WAS AWARDED AN INVALIDITY PENSION BY THE COMPETENT ITALIAN INSTITUTION ON THE BASIS OF INSURANCE PERIODS WHICH HE HAD COMPLETED IN HIS COUNTRY OF ORIGIN . ON 1 FEBRUARY 1970 HE APPLIED TO THE BUNDESKNAPPSCHAFT , THE MINEWORKERS ' INSURANCE FUND FOR THE FEDERAL REPUBLIC OF GERMANY , FOR A PENSION .

THE BUNDESKNAPPSCHAFT , THE DEFENDANT IN THE MAIN ACTION , WHICH IS REQUIRED TO ASSUME CERTAIN OF THE OBLIGATIONS INCUMBENT UPON THE MINEWORKERS ' SOCIAL SECURITY INSTITUTIONS IN EXISTENCE BEFORE 1945 , AWARDED THE PENSION APPLIED FOR BUT REFUSED TO PAY IT ON THE GROUND THAT SINCE THE PLAINTIFF HAD ONLY WORKED AND COMPLETED INSURANCE PERIODS OUTSIDE THE FEDERAL REPUBLIC OF GERMANY AND WAS RESIDING OUTSIDE THAT TERRITORY , IT WAS ' SUSPENDED UNDER PARAGRAPHS 105 ET SEQ . OF THE ( AMENDED ) RKG ' , ( IMPERIAL LAW GOVERNING SOCIAL SECURITY FOR MINEWORKERS ).

THE BUNDESKNAPPSCHAFT MAINTAINS THAT THE SUSPENSION IS NOT INCOMPATIBLE WITH THE PROHIBITION CONTAINED IN ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 , SINCE ANNEX V B 1 B TO THAT REGULATION PROVIDES FOR AN EXCEPTION TO THAT PROHIBITION IN CASES SUCH AS THE PRESENT , WHILST THE PLAINTIFF MAINTAINS THAT THE EXCEPTION IS INCOMPATIBLE WITH ARTICLES 48 ET SEQ . OF THE EEC TREATY AND THAT THE REFUSAL OF THE BUNDESKNAPPSCHAFT RESULTS IN DISCRIMINATION AGAINST FOREIGN NATIONALS .

3 THE QUESTION ASKS WHETHER ' AN ITALIAN NATIONAL LIVING IN ITALY WHO AT NO TIME HAD LIVED OR WORKED IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY OR OF WEST BERLIN , IS TO BE TREATED , BY VIRTUE OF ARTICLE 8 OF REGULATION NO 3 AND OF ARTICLE 3 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 ON THE SAME FOOTING AS A GERMAN NATIONAL WHEN APPLYING PARAGRAPH 108 C OF THE RKG , SO FAR AS CONCERNS INSURANCE PERIODS WHICH WERE COMPLETED BEFORE 1945 WITH THE REICHSKNAPPSCHAFT ( THE COMPETENT SOCIAL SECURITY INSTITUTION FOR MINEWORKERS ) UNDER THE LAW OF THE REICH OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY OR WEST BERLIN ' .

4 THE REPLY TO BE GIVEN TO THE QUESTION REFERRED TO THE COURT DEPENDS ON WHETHER A PROVISION SUCH AS PARAGRAPH 108 C OF THE RKG IS COVERED BY REGULATION NO 3 AND REGULATION NO 1408/71 AS LEGISLATION ON SOCIAL SECURITY .

5 IN ORDER TO FACILITATE THE ECONOMIC AND SOCIAL INTEGRATION OF REFUGEES AND PERSONS DEPORTED WHO COULD NO LONGER ENJOY THEIR RIGHTS TO INSURANCE BECAUSE THE COMPETENT INSTITUTIONS NO LONGER EXISTED OR WERE SITUATED OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , THE FREMDRENTEN- UND AUSLANDSRENTENGESETZ OF 1953 ( LAW ON SUBSTITUTE PENSIONS AND PENSIONS AWARDED TO CERTAIN CATEGORIES OF PERSONS RESIDING ABROAD ) TOOK RESPONSIBILITY UNDER CERTAIN CONDITIONS FOR THE RIGHTS OF THE PARTIES CONCERNED , WHETHER OR NOT THEY WERE GERMAN NATIONALS .

UNDER THE TERMS OF THAT LAW AS AMENDED BY THE RKG OF 1960 , PAYMENT OF SUCH PENSIONS IS TO BE SUSPENDED IF THE PERSON ENTITLED THERETO IS HABITUALLY RESIDENT OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY .

6 THE GERMAN PROVISION WHICH STATES THAT THE BENEFITS ARE NOT IN THE NATURE OF SOCIAL SECURITY IS NOT DECISIVE AS REGARDS COMMUNITY LAW .

LEGISLATION WHICH CONFERS ON THE BENEFICIARIES A LEGALLY DEFINED POSITION WHICH INVOLVES NO INDIVIDUAL AND DISCRETIONARY ASSESSMENT OF NEED OR PERSONAL CIRCUMSTANCES COMES IN PRINCIPLE WITHIN THE FIELD OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF REGULATIONS NOS 3 AND 1408/71 .

7 HOWEVER , IN THE LIGHT OF THE FACTS THAT THE COMPETENT INSURANCE INSTITUTIONS TO WHICH THE PERSONS REFERRED TO IN THE PROVISION IN QUESTION HAD BEEN AFFILIATED NO LONGER EXIST OR ARE SITUATED OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND THAT THE PURPOSE OF THE GERMAN LEGISLATION IN QUESTION IS TO ALLEVIATE CERTAIN SITUATIONS WHICH AROSE OUT OF EVENTS CONNECTED WITH THE NATIONAL SOCIALIST REGIME AND THE SECOND WORLD WAR AND , FINALLY , THAT THE PAYMENT OF THE BENEFITS IN QUESTION TO NATIONALS IS OF A DISCRETIONARY NATURE WHERE SUCH NATIONALS ARE RESIDING ABROAD , THOSE BENEFITS ARE NOT TO BE REGARDED AS IN THE NATURE OF SOCIAL SECURITY .

THAT CONCLUSION IS , MOREOVER , CONFIRMED BY THE RESERVATION CONTAINED IN ANNEX G I A 2 OF REGULATION NO 3 AND IN ANNEX V B 1 ( B ) OF REGULATION NO 1408/71 .

8 THE ANSWER MUST THEREFORE BE THAT ARTICLE 8 OF REGULATION NO 3 AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 DO NOT APPLY TO BENEFITS SUCH AS THOSE PROVIDED FOR IN PARAGRAPH 108 ( C ) OF THE REICHSKNAPPSCHAFTSGESETZ IN RESPECT OF INSURANCE PERIODS COMPLETED BEFORE 1945 OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND OF WEST BERLIN .

COSTS

9 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY ORDER OF THAT COURT OF 29 JUNE 1976 , HEREBY RULES :

' ARTICLE 8 OF REGULATION NO 3 AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 DO NOT APPLY TO BENEFITS SUCH AS THOSE PROVIDED FOR IN PARAGRAPH 108 ( C ) OF THE REICHSKNAPPSCHAFTSGESETZ IN RESPECT OF INSURANCE PERIODS COMPLETED BEFORE 1945 OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY AND WEST BERLIN . '