61990C0010

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Mr President,

Members of the Court,

1. The preliminary question raised by the Bundessozialgericht arises out of a comparison between the German Reichsknappschaftsgesetz (Law on the Miners' Insurance Fund), on the one hand, and Articles 7 and 48 to 51 of the EEC Treaty and Article 3 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community,(1) on the other.

2. Maria Masgio, the widow of an Italian national who had worked in the mining industry in Belgium and in the Federal Republic of Germany, is acting in the main proceedings as successor to her late husband' s rights. The various stages in those proceedings are detailed in the Report for the Hearing.(2)

3. For the purposes of discussion, it will be sufficient to bear the following points in mind.

4. Since 1972 Mr Masgio had been receiving a pension for silicosis from the competent Belgian institution. In accord ance with Belgian law, the silicosis pension was reduced in 1983 when Mr Masgio became entitled to a Belgian old-age pension. That reduction is not in issue here.

5. Also in 1983, Mr Masgio was granted an old-age pension under the German miners' scheme. The position of miners simultaneously receiving both a pension of that kind and an accident pension is governed by the Reichsknappschaftsgesetz, in particular by Paragraphs 75(1) and 76a.

6. Paragraph 75(1) provides that the miner' s pension is "suspended" to the extent that, when added to the accident pension, it exceeds 95% of the annual earnings on which the accident pension is calculated and 95% of the basis of calculation of the old-age pension. In other words, the ceiling to be applied is that which entails the smaller reduction of the old-age pension.

7. Under Paragraph 76a(2) of the Reichsknappschaftsgesetz that choice is not available to a person receiving a pension from an institution outside the Federal Republic of Germany. In such cases "the annual earnings shall not be determined" and only the basis of calculation of the old-age pension is taken into consideration.

8. The lack of that option operated, it appears, to the disadvantage of Mr Masgio and thus to his wife, and the Bundessozialgericht therefore seeks a ruling on whether the abovementioned Community provisions are to be interpreted as meaning that insured persons who are simultaneously receiving a pension granted under national legislation and an accident pension paid by an institution of another Member State may not be put in a worse position, for the purposes of calculating the amount of benefit to be suspended pursuant to national legislation, than insured persons receiving both benefits under national law.

9. The first paragraph of Article 7 of the EEC Treaty provides:

"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

10. In its judgment of 14 July 1977 in Sagulo, Brenca and Bakhouche,(3) the Court of Justice held that

"the general principle of Article 7 can only apply subject to the special provisions of the Treaty".

It is therefore unnecessary to interpret that article, since special provisions of the Treaty, in particular those to which the national court refers, are applicable.

11. Articles 48 to 51 of the EEC Treaty form the basis, the framework and the bounds of the provisions of regulations in the field of social security,(4) in particular Regulation No 1408/71, which lays down the main rules implementing the Treaty in that field. Article 3(1) of that regulation is couched in the following terms:

"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits as the nationals of that State."

12. In the decision against which the appeal before the Bundessozialgericht is directed, the Landessozialgericht (Higher Social Court) for the Land of Nordrhein-Westfalen stated(5) that "a possible legal disadvantage in regard to benefits was not a crucial objective criterion for the choice of place of employment". However, the plaintiff' s representative pointed out at the hearing that a person who has suffered an accident outside Germany would be ill-advised to move there for the purposes of work and then retirement, since the effects of the pension suspension would be harsher for such a person than for German nationals, who may opt for the more favourable system of calculation. That being so, in accordance with the Court' s case-law, it is not necessary to prove the actual existence of an objectively decisive criterion in the choice of place of employment.(6) What matters is to ensure the achievement of the aims set out in Articles 48 to 51 of the Treaty, and in particular to secure compliance with the rule of equal treatment(7) enshrined in Article 3(1) of Regulation No 1408/71.(8)

13. In previous decisions, the Court has always looked beyond the formal criterion of nationality to consider whether the other criteria applied could lead to equivalent discrimination.(9) In particular, in CRAM v Toia,(10) the Court held that

"the rules on equality of treatment, laid down by Article 3(1) of the regulation, prohibit not only patent discrimination, based on the nationality of the beneficiaries of social security schemes, but also all disguised forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result".

14. In a more recent case,(11) the Court was called upon to consider certain provisions of Community law which, when combined with those of the German legislation, prevented activities not subject to compulsory insurance in Germany from being taken into account when determining qualification for entitlement to a pension. The Court observed that that restriction, although it applied independently of the nationality of the worker, was concerned essentially with migrant workers coming from other Member States who had been employed successively in those States and in the Federal Republic of Germany. It therefore found that those provisions worked to the disadvantage of certain migrant workers who had obtained in another Member State a qualification higher than that which they had in the Federal Republic of Germany inasmuch as they were thereby unable to obtain recognition of that qualification when claiming their pension.

15. It would appear that the rules which may thus be inferred from the Toia and Roviello judgments must be decisive in determining the case before the national court. It is true that the first sentence of Paragraph 76a(2) of the Reichsknappschaftsgesetz does not lay down any criterion of nationality. But there is every reason to suppose - and this is a question to be determined by the national court - that, in the words of the Roviello judgment, its application is "concerned essentially with migrant workers coming from other Member States who have been employed successively in those States and in the Federal Republic of Germany".

16. In Toia, however, the Court added that such forms of indirect discrimination could be justified by objective differences.(12) In that regard, the Landessozialgericht Nordrhein-Westfalen had pointed out(13) that the different treatment of persons receiving foreign accident pensions might be objectively justified by the fact that it was often not possible in such cases to determine the annual earnings. The Commission(14) and the plaintiff in the main proceedings(15) have rightly observed that lack of information concerning annual earnings cannot adequately justify such discrimination, since it is possible to calculate a notional annual earnings figure. That is demonstrated by recent changes in the German legisla tion,(16) since from 1 January 1992 it will be possible to calculate the maximum amount on the basis of a notional annual earnings figure obtained by multiplying the monthly amount of the accident pension by 18. The German authorities are obviously aware of the latter amount, since they suspend the old-age pension when the combined amount of the old-age and accident pensions reaches a certain level. Moreover, as the Commission has pointed out, indirect discrimination can no more be justified on grounds of procedural delays and inaccuracies in the determination of the factors necessary for the calculation than by the fact that the number of cases in which discrimination can exist is small and the disadvantages suffered are slight.(17)

17. I therefore propose that the Court should rule as follows:

"Articles 48 to 51 of the EEC Treaty and Article 3(1) of Regulation (EEC) No 1408/71 are to be interpreted as meaning that a migrant worker who is receiving a pension under the national legislation of the host Member State and accident insurance benefits paid by an insurance institution of another Member State may not be put in a worse position, for the purposes of calculating the amount to be suspended pursuant to the national legislation of the host Member State, than a worker receiving both benefits under the national law of that Member State."

(*) Original language: French.

(1) OJ, English Special Edition 1971 (II), p. 416, consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

(2) Point I(b).

(3) Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, paragraph 11.

(4) Case 1/67 Ciechelski v Sécurité sociale d' Orléans [1967] ECR 181 at p. 188; Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 11 of the decision.

(5) Order for reference, p. 3 of the English translation.

(6) Examples are Case 41/84 Pinna v Caisse d' allocations familiales de la Savoie [1986] ECR 1 and Case 20/85 Roviello v Landesversicherungsanstalt Schwaben [1988] ECR 2805.

(7) Pinna, paragraph 24.

(8) Case 63/76 Inzirillo v Caisse d' allocations familiales de Lyon [1976] ECR 2057, paragraph 14.

(9) Pinna, paragraph 23.

(10) Case 237/78 CRAM v Toia [1979] ECR 2645, paragraph 12.

(11) Roviello, paragraphs 15 and 16.

(12) Toia, paragraph 14.

(13) Order for reference, p. 4 of the English translation.

(14) Observations of the Commission, point 26.

(15) Observations of the plaintiff, p. 3.

(16) First sentence (point 4) and third sentence of Paragraph 93(4) of Book VI of the Sozialgesetzbuch (Social Code); Law of 18 December 1989 (BGBl. I, p. 2261).

(17) Observations of the Commission, point 28.

Translation