61967J0014

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1 . FREE MOVEMENT OF PERSONS - WORKERS - SOCIAL SECURITY - PERIODS ASSIMILATED TO INSURANCE PERIODS - REFERENCE TO NATIONAL LAW

( REGULATION NO 3, ARTICLE 1(R ))

2 . FREE MOVEMENT OF PERSONS - WORKERS - OLD-AGE AND DEATH ( PENSIONS ) INSURANCE - APPLICATION OF GERMAN LEGISLATION - TAKING INTO ACCOUNT OF ' SUBSTITUTE PERIODS ' WITHIN THE MEANING OF THAT LEGISLATION - GERMAN INSTITUTIONS NOT OBLIGED TO TAKE INTO ACCOUNT A PERIOD COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ( REGULATION NO 3, ARTICLE 28, ANNEX G )

1 . IN SO FAR AS IT TAKES ' ASSIMILATED PERIODS ' INTO ACCOUNT, REGULATION NO 3 INTENDS NEITHER TO MODIFY NOR SUPPLEMENT NATIONAL LAW, PROVIDED THAT THE LATTER OBSERVES THE PROVISIONS OF ARTICLE 48 TO 51 OF THE EEC TREATY . IN PARTICULAR, REGULATION NO 3 REFERS TO THE CONDITIONS UNDER WHICH NATIONAL LAW WILL REGARD A GIVEN PERIOD AS BEING EQUIVALENT TO INSURANCE PERIODS PROPERLY SO-CALLED .

2 . ARTICLE 28 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, TOGETHER WITH ANNEX G THERETO, DOES NOT REQUIRE THE INSTITUTIONS OF THE FEDERAL REPUBLIC OF GERMANY TO TAKE INTO ACCOUNT A PERIOD COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IN DETERMINING WHETHER ' SUBSTITUTE PERIODS ' WITHIN THE MEANING OF GERMAN LEGISLATION MUST BE TAKEN INTO ACCOUNT .

IN CASE 14/67

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

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ ( THE SOCIAL SECURITY INSTITUTION OF RHEINLAND-PFALZ ), SPEYER,

DEFENDANT,

( APPELLANT BEFORE THE BUNDESSOZIALGERICHT ),

AND

JOSEF WELCHNER, OF FREIBURG IM BREISGAU,

PLAINTIFF,

( RESPONDENT BEFORE THE BUNDESSOZIALGERICHT ),

ON THE INTERPRETATION OF ARTICLE 28(1)(B ) TOGETHER WITH ANNEX G ( I)(B ) TO ( D ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.561 ).

P.336

BY AN ORDER OF 1 MARCH 1967 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 3 MAY 1967, THE IVTH SENATE OF THE BUNDESSOZIALGERICHT REQUESTS THE COURT TO RULE WHETHER ' ARTICLE 28(1)(B ) OF REGULATION NO 3 ..., OR ANNEX G ( I)(B ) TO ( D ) TO THAT REGULATION, OR THOSE PROVISIONS READ TOGETHER, MUST BE INTERPRETED TO MEAN THAT, IN DETERMINING WHETHER UNDER GERMAN LAW SUBSTITUTE PERIODS ( ERSATZZEITEN ) MUST BE TAKEN INTO ACCOUNT, THE CONTRIBUTIONS PAID UNDER THE LEGISLATION OF ANOTHER MEMBER STATE OF THE EEC MUST BE ASSIMILATED TO CONTRIBUTIONS PAID UNDER GERMAN LEGISLATION '.

P.337

THE DISPUTE PENDING BEFORE THE BUNDESSOZIALGERICHT CONCERNS A PROVISION OF GERMAN LAW UNDER WHICH, FOR THE PURPOSE OF CALCULATING AN INVALIDITY PENSION, PERIODS OF MILITARY SERVICE AND OF CAPTIVITY SHALL BE TAKEN INTO CONSIDERATION IN FAVOUR OF THE PERSON CONCERNED AS ' SUBSTITUTE PERIODS ' ( ERSATZZEITEN ), PROVIDED THAT WITHIN A CERTAIN TIME FOLLOWING THE EXPIRY OF THOSE PERIODS HE COMMENCED ' A COMPULSORY INVALIDITY INSURANCE EMPLOYMENT OR OCCUPATION '. THE QUESTION RAISED BY THE BUNDESSOZIALGERICHT REFERS BOTH TO ARTICLE 28 OF REGULATION NO 3, WHICH APPLIES TO ALL MEMBER STATES AND TO ALL CATEGORIES OF ' ASSIMILATED PERIODS ', AND TO ANNEX G(I ) OF THIS REGULATION, WHICH PARTICULARLY REFERS TO CERTAIN PERIODS ASSIMILATED TO INSURANCE PERIODS BY THE LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY .

SINCE THE PROVISIONS OF ARTICLE 28 OF REGULATION NO 3 DO NOT CLARIFY THE CONCEPT OF ' ASSIMILATED PERIODS ', REFERENCE MUST BE MADE TO ARTICLE 1(R ). THE SAME HOLDS GOOD FOR THE PROVISIONS OF ARTICLE 27 TO WHICH ARTICLE 28 REFERS SEVERAL TIMES .

ARTICLE 1(R ) OF REGULATION NO 3 PROVIDES THAT ' FOR THE PURPOSES OF THIS REGULATION...THE TERM " ASSIMILATED PERIODS " MEANS PERIODS TREATED AS INSURANCE PERIODS OR, WHERE APPLICABLE, AS PERIODS OF EMPLOYMENT, AS DEFINED IN THE LEGISLATION UNDER WHICH THEY WERE COMPLETED, IN SO FAR AS THEY ARE REGARDED BY THE SAID LEGISLATION AS BEING EQUIVALENT TO INSURANCE PERIODS OR PERIODS OF EMPLOYMENT '. THIS DOUBLE REFERENCE TO NATIONAL LEGISLATION SETS FORTH VERY CLEARLY THE PRINCIPLE THAT THE SAID REGULATION, IN SO FAR AS IT TAKES ' ASSIMILATED PERIODS ' INTO ACCOUNT, INTENDS NEITHER TO MODIFY NOR SUPPLEMENT NATIONAL LAW, PROVIDED THAT THE LATTER OBSERVES THE PROVISIONS OF ARTICLES 48 TO 51 OF THE TREATY . IN PARTICULAR, THE PHRASE ' IN SO FAR AS THEY ARE REGARDED...AS BEING EQUIVALENT ...' SHOWS THAT THE REGULATION IS ALSO REFERRING TO THE CONDITIONS UNDER WHICH NATIONAL LAW WILL REGARD A GIVEN PERIOD AS BEING EQUIVALENT TO INSURANCE PERIODS PROPERLY SO-CALLED .

THIS INTERPRETATION IS CONFIRMED BY THE TENOR OF ANNEX G(I ) WHICH FORMS AN INTEGRAL PART OF REGULATION NO 3 UNDER THE TERMS OF ARTICLE 50 THEREOF . IN FACT ANNEX G(I)(B)(1 ) PROVIDES THAT ' IN DETERMINING WHETHER PERIODS WHICH UNDER GERMAN LEGISLATION CONSTITUTE PERIODS OF INTERRUPTION ( AUSFALLZEITEN ) OR SUPPLEMENTARY PERIODS ( ZURECHNUNGSZEITEN ) MUST BE TAKEN INTO ACCOUNT AS SUCH, THE CONTRIBUTIONS PAID UNDER THE LEGISLATION OF ANOTHER MEMBER STATE AND AFFILIATION TO THE PENSION INSURANCE SCHEME OF ANOTHER MEMBER STATE SHALL BE ASSIMILATED TO THE CONTRIBUTIONS PAID UNDER GERMAN LEGISLATION AND AFFILIATION TO THE GERMAN PENSION INSURANCE SCHEME '.

P.338

THE EXPRESSIONS ' PERIODS OF INTERRUPTION ' AND ' SUPPLEMENTARY PERIODS ' MENTIONED IN THE SAID ANNEX G(I)(B)(1 ) CORRESPOND TO TERMS EMPLOYED BY THE GERMAN LEGISLATION TO WHICH THIS PART OF THE ANNEX REFERS . THIS LEGISLATION DISTINGUISHES CLEARLY BETWEEN THOSE TWO CATEGORIES AND THE ' ERSATZZEITEN ' ( SUBSTITUTE PERIODS ) IN QUESTION . IT IS THUS IMPOSSIBLE TO ATTRIBUTE TO A MERE OVERSIGHT THE FACT THAT THE AUTHORS OF ANNEX G DID NOT PROVIDE FOR THE ' SUBSTITUTE PERIODS ' RULES ANALOGOUS TO THOSE WHICH THEY MADE FOR THE OTHER ABOVE-MENTIONED CATEGORIES OF PERIODS . THIS IS ALL THE MORE IMPROBABLE SINCE THE COUNCIL HAS REPEATEDLY CONSIDERED THE PROBLEM OF THE ASSIMILATED PERIODS PROVIDED FOR BY GERMAN LEGISLATION . IN FACT, ALTHOUGH THE ORIGINAL WORDING OF ANNEX G(I)(B ), WHICH ENTERED INTO FORCE ON 1 OCTOBER 1958, ONLY MENTIONED ' SUPPLEMENTARY PERIODS ', THE WORDING AS AMENDED BY ARTICLE 6 OF REGULATION NO 130/63/EEC OF THE COUNCIL, WHICH ENTERED INTO FORCE ON 28 DECEMBER 1963, ADDS ' PERIODS OF INTERRUPTION ' THERETO . MOREOVER, THE GERMAN LEGISLATION IN QUESTION ONLY REFERS TO SPECIFIC SITUATIONS BEFORE THE ENTRY INTO FORCE OF THE TREATY, WHICH CANNOT THEREFORE HAVE AN ADVERSE EFFECT ON THE FREE MOVEMENT OF WORKERS WITHIN THE COMMON MARKET .

TAKEN TOGETHER THE FOREGOING GROUNDS LEAD TO THE CONCLUSION THAT THE PROVISIONS OF ARTICLE 28 OF REGULATION NO 3 AND ANNEX G THERETO DO NOT REQUIRE THE INSTITUTIONS OF THE FEDERAL REPUBLIC OF GERMANY TO ASSIMILATE CONTRIBUTIONS PAID UNDER THE LEGISLATION OF ANOTHER MEMBER STATE TO THE CONTRIBUTIONS PAID UNDER GERMAN LEGISLATION IN DETERMINING WHETHER ACCOUNT MUST BE TAKEN OF CERTAIN PERIODS AS ' SUBSTITUTE PERIODS ' ( ERSATZZEITEN ) WITHIN THE MEANING OF GERMAN LAW .

THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE IVTH SENATE OF THE BUNDESSOZIALGERICHT THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE IVTH SENATE OF THE BUNDESSOZIALGERICHT, BY AN ORDER OF THAT COURT OF 1 MARCH 1967, HEREBY RULES :

1 . ARTICLE 28 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, TOGETHER WITH ANNEX G THERETO, DOES NOT REQUIRE THE INSTITUTIONS OF THE FEDERAL REPUBLIC OF GERMANY TO TAKE INTO ACCOUNT A PERIOD COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IN DETERMINING WHETHER ' SUBSTITUTE PERIODS ' WITHIN THE MEANING OF GERMAN LEGISLATION MUST BE TAKEN INTO ACCOUNT;

2 . THE DECISION ON COSTS IN THE PRESENT PROCEEDINGS IS A MATTER FOR THE IVTH SENATE OF THE BUNDESSOZIALGERICHT .