61981J0022

SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH INSURANCE - PENSION SUPPLEMENT - GUARANTEE OF MINIMUM INCOME - MINIMUM BENEFIT - CONCEPT

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 50 )

ARTICLE 50 OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT A ' ' MINIMUM BENEFIT ' ' EXISTS ONLY WHERE THE LEGISLATION OF THE STATE OF RESIDENCE INCLUDES A SPECIFIC GUARANTEE THE OBJECT OF WHICH IS TO ENSURE FOR RECIPIENTS OF SOCIAL SECURITY BENEFITS A MINIMUM INCOME WHICH IS IN EXCESS OF THE AMOUNT OF BENEFIT WHICH THEY MAY CLAIM SOLELY ON THE BASIS OF THEIR PERIODS OF INSURANCE AND THEIR CONTRIBUTIONS .

IN CASE 22/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , DIVISIONAL COURT , LONDON , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

REGINA

AND

THE SOCIAL SECURITY COMMISSIONER ( FORMERLY THE NATIONAL INSURANCE COMMISSIONER ), EX PARTE NORMAN IVOR BROWNING ,

ON THE INTERPRETATION OF ARTICLE 50 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 ,

1 BY AN ORDER OF 18 DECEMBER 1980 WHICH WAS RECEIVED AT THE COURT ON 5 FEBRUARY 1981 THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , DIVISIONAL COURT , LONDON , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 50 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ; CODIFIED VERSION : OFFICIAL JOURNAL 1980 , C 138 , P . 1 ), WITH PARTICULAR REFERENCE TO THE MEANING OF THE EXPRESSION ' ' MINIMUM BENEFIT ' ' .

2 FROM THE FILE ON THE CASE IT APPEARS THAT THE RESPONDENT IN THE APPEAL BEFORE THE HIGH COURT OF JUSTICE , ROBERT STANLEY , AN IRISH NATIONAL LIVING IN THE UNITED KINGDOM , COMPLETED PERIODS OF INSURANCE FIRST IN HIS COUNTRY OF ORIGIN AND LATER IN THE UNITED KINGDOM . ON REACHING PENSIONABLE AGE IN 1973 HE WAS AWARDED , BY A DECISION OF THE INSURANCE OFFICER OF 27 MARCH 1973 , A RETIREMENT PENSION CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 . IN ADDITION TO THE PENSION THE INSURANCE OFFICER AWARDED HIM A SUPPLEMENT PURSUANT TO ARTICLE 50 OF THE SAME REGULATION , ACCORDING TO WHICH A RECIPIENT OF BENEFITS MAY IN CERTAIN CIRCUMSTANCES BE ENTITLED TO RECEIVE A SUPPLEMENT TO HIS PENSION EQUAL TO THE ' ' DIFFERENCE ' ' BETWEEN THE TOTAL OF THE BENEFITS PAYABLE UNDER THE REGULATION AND THE AMOUNT OF THE ' ' MINIMUM BENEFIT ' ' .

3 THE INSURANCE OFFICER CONSIDERED THAT THE ' ' MINIMUM BENEFIT ' ' WAS THE BENEFIT PAYABLE UNDER THE UNITED KINGDOM LEGISLATION , AND THE ' ' DIFFERENCE ' ' REFERRED TO IN ARTICLE 50 WAS THE DIFFERENCE BETWEEN THAT BENEFIT AND THE PENSION WHICH WOULD HAVE BEEN PAYABLE HAD ALL THE PERIODS OF INSURANCE BEEN COMPLETED IN THE UNITED KINGDOM . HE THEREFORE AWARDED MR STANLEY A PENSION EQUAL TO THE ' ' THEORETICAL AMOUNT ' ' DEFINED IN ARTICLE 46 ( 2 ) ( A ) OF THE REGULATION . THE DECISION WAS BASED ON THE FACT THAT AT THE TIME IN QUESTION THE UNITED KINGDOM GOVERNMENT HAD MADE A DECLARATION PURSUANT TO ARTICLES 5 AND 50 OF REGULATION NO 1408/71 THAT CERTAIN BENEFITS PAYABLE UNDER , IN PARTICULAR , THE NATIONAL INSURANCE ACT 1965 AS SUBSEQUENTLY AMENDED WERE THE ' ' MINIMUM BENEFITS REFERRED TO IN ARTICLE 50 OF THE REGULATION ' ' ( OFFICIAL JOURNAL 1973 , C 43 , P . 7 , SECTION II ).

4 THAT DECLARATION , WHICH WAS BROUGHT UP TO DATE IN 1975 ( OFFICIAL JOURNAL , C 245 , P . 2 , SECTION II ), WAS SUBSEQUENTLY REPLACED BY A DECLARATION PUBLISHED IN THE OFFICIAL JOURNAL OF 14 APRIL 1977 , C 89 , P . 2 , WORDED AS FOLLOWS : ' ' MINIMUM BENEFITS REFERRED TO IN ARTICLE 50 OF THE REGULATION : NONE ' ' . IT WAS SHORTLY BEFORE THAT DECLARATION WAS PUBLISHED , ON 27 JANUARY 1977 , THAT THE INSURANCE OFFICER ADOPTED A DECISION ALTERING HIS EARLIER DECISION AND WITHDRAWING FROM MR STANLEY WITH EFFECT FROM 6 JANUARY 1977 THE EXTRA PAYMENT HE HAD PREVIOUSLY BEEN AWARDED UNDER ARTICLE 50 OF THE REGULATION .

5 MR STANLEY ' S APPEAL AGAINST THAT DECISION TO THE LOCAL TRIBUNAL WITH JURISDICTION IN SUCH MATTERS WAS DISMISSED . HE THEN APPEALED TO THE NATIONAL INSURANCE COMMISSIONER ( NOW THE SOCIAL SECURITY COMMISSIONER ) WHO , ON 13 SEPTEMBER 1979 , RULED THAT THE INSURANCE OFFICER ' S ORIGINAL DECISION MUST STAND , THERE BEING NO GROUNDS FOR AMENDING IT .

6 FROM THE STATEMENT OF THE REASONS ON WHICH THE DECISION WAS BASED IT IS APPARENT THAT THE NATIONAL INSURANCE COMMISSIONER CONSIDERED THAT ' ' MINIMUM BENEFIT ' ' WITHIN THE MEANING OF ARTICLE 50 OF REGULATION NO 1408/71 MUST BE UNDERSTOOD TO MEAN THE LOWEST AMOUNT PAYABLE UNDER THE LAW OF THE UNITED KINGDOM FOR ALL THE PERIODS OF INSURANCE WHICH ARE TO BE TAKEN INTO ACCOUNT . THE FLAT-RATE PENSION CALCULATED ON THE BASIS OF SUCH PERIODS OF INSURANCE CONSTITUTES , ACCORDING TO THE COMMISSIONER , THE MINIMUM PENSION DETERMINED BY UNITED KINGDOM LEGISLATION . THE FACT THAT THE AMOUNT COINCIDES WITH THE ' ' THEORETICAL AMOUNT ' ' REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) OF THE REGULATION IS , IN THE COMMISSIONER ' S VIEW , A MERE COINCIDENCE . IN HIS OPINION THAT INTERPRETATION IS IN ACCORDANCE WITH ARTICLE 50 OF THE REGULATION AND IS NOT AFFECTED BY THE DECISION IN THE JUDGMENT OF THE COURT OF 30 NOVEMBER 1977 ( CASE 64/77 TORRI ( 1977 ) ECR 2299 ), ON WHICH THE INSURANCE OFFICER RELIED IN THE PROCEEDINGS BEFORE HIM .

7 THE INSURANCE OFFICER APPEALED AGAINST THAT DECISION TO THE DIVISIONAL COURT , QUEEN ' S BENCH DIVISION , OF THE HIGH COURT OF JUSTICE . CONTRARY TO THE OPINION OF THE NATIONAL INSURANCE COMMISSIONER HIS VIEW , BASED ON THE DECLARATION MADE BY THE UNITED KINGDOM GOVERNMENT IN 1977 , IS THAT THE ' ' MINIMUM BENEFIT ' ' REFERRED TO IN ARTICLE 50 OF THE REGULATION IS IN FACT UNKNOWN TO UNITED KINGDOM LEGISLATION .

8 IN ORDER TO OBTAIN CLARIFICATION OF THIS CONCEPT THE HIGH COURT OF JUSTICE REFERRED TO THE COURT TWO QUESTIONS WORDED AS FOLLOWS :

' ' 1 . IS THERE A MINIMUM BENEFIT WITHIN THE MEANING OF ARTICLE 50 OF COUNCIL REGULATION ( EEC ) NO 1408/71 WHERE THE LEGISLATION OF A MEMBER STATE MAKES ENTITLEMENT TO RETIREMENT BENEFIT AT A FLAT RATE CONDITIONAL ON THE YEARLY AVERAGE OF WEEKLY FLAT-RATE CONTRIBUTIONS PAID OR CREDITED TO A CLAIMANT DURING THE PERIOD BETWEEN HIS ENTRY INTO INSURANCE AND HIS ATTAINING PENSIONABLE AGE BEING NOT LESS THAN 50 , AND , IF THAT CONDITION IS NOT SATISFIED BUT THE YEARLY AVERAGE IS NOT LESS THAN 13 , PROVIDES FOR A REDUCED AMOUNT OF RETIREMENT BENEFIT DETERMINED SOLELY BY REFERENCE TO THE CLAIMANT ' S CONTRIBUTION AVERAGE FOR THAT PERIOD?

' ' 2.IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE IS THE ' MINIMUM BENEFIT ' :

( A ) THE SMALLEST AMOUNT OF BENEFIT THAT MAY BE PAID TO AN INSURED PERSON UNDER THE LEGISLATION OF THAT STATE , THAT IS TO SAY , FOR A CONTRIBUTION AVERAGE OF 13 ;

( B)THE AMOUNT THAT WOULD BE PAYABLE TO THE CLAIMANT UNDER THE LEGISLATION OF THAT STATE TAKING ACCOUNT OF ALL THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATIONS OF ALL MEMBER STATES TO WHICH HE HAD BEEN SUBJECT ; OR

( C)SOME OTHER ( AND IF SO WHAT ) AMOUNT? ' '

9 WITH A VIEW TO GIVING A REPLY TO THOSE QUESTIONS THE HEADING AND WORDING OF ARTICLE 50 OF REGULATION NO 1408/71 MUST FIRST BE RECALLED :

' ' AWARD OF A SUPPLEMENT WHEN THE TOTAL OF BENEFITS PAYABLE UNDER THE LEGISLATIONS OF THE VARIOUS MEMBER STATES DOES NOT AMOUNT TO THE MINIMUM LAID DOWN BY THE LEGISLATION OF THE STATE IN WHOSE TERRITORY THE RECIPIENT RESIDES .

A RECIPIENT OF BENEFITS TO WHOM THIS CHAPTER APPLIES MAY NOT , IN THE STATE IN WHOSE TERRITORY HE RESIDES AND UNDER WHOSE LEGISLATION A BENEFIT IS PAYABLE TO HIM , BE AWARDED A BENEFIT WHICH IS LESS THAN THE MINIMUM BENEFIT FIXED BY THAT LEGISLATION FOR A PERIOD OF INSURANCE OR RESIDENCE EQUAL TO ALL THE PERIODS OF INSURANCE TAKEN INTO ACCOUNT FOR THE PAYMENT IN ACCORDANCE WITH THE PROVISIONS OF THE PRECEDING ARTICLES . THE COMPETENT INSTITUTION OF THAT STATE SHALL , IF NECESSARY , PAY HIM THROUGHOUT THE PERIOD OF HIS RESIDENCE IN ITS TERRITORY A SUPPLEMENT EQUAL TO THE DIFFERENCE BETWEEN THE TOTAL OF THE BENEFITS PAYABLE UNDER THIS CHAPTER AND THE AMOUNT OF THE MINIMUM BENEFIT . ' '

10 THE WORDING OF THAT PROVISION MAKES IT CLEAR THAT THE ' ' MINIMUM BENEFIT ' ' TO WHICH THE ARTICLE REFERS IS TO BE DEFINED PRIMARILY NOT ON THE BASIS OF THE CONCEPTS EMPLOYED IN THE REGULATION ITSELF BUT BY REFERENCE TO THE MINIMUM BENEFITS FIXED BY THE LAWS OF THE VARIOUS MEMBER STATES . AN EXAMINATION OF THE DECLARATIONS WHICH HAVE BEEN MADE IN THAT CONTEXT BY THE MEMBER STATES PURSUANT TO ARTICLE 5 OF THE REGULATION REVEALS THAT ' ' MINIMUM BENEFITS ' ' , WITHIN THE MEANING OF ARTICLE 50 , ARE PROVIDED FOR BY THE LAW OF ONLY SOME OF THE MEMBER STATES . SINCE THE QUESTION OF THE EXISTENCE OF SUCH BENEFITS UNDER UNITED KINGDOM LEGISLATION IS IN DISPUTE IT WOULD APPEAR APPROPRIATE TO EXAMINE THE NATURE OF SUCH BENEFITS IN THOSE NATIONAL LEGAL SYSTEMS IN WHICH THEIR EXISTENCE IS NOT CONTESTED .

11 ACCORDING TO THE INFORMATION CONTAINED IN THE CASE-FILE AND THAT FURNISHED BY THE COMMISSION IN THE COURSE OF THE PROCEEDINGS THE RELEVANT PROVISIONS IN THE MEMBER STATES WHICH HAVE ' ' MINIMUM BENEFITS ' ' WITHIN THE MEANING OF ARTICLE 50 ARE DESIGNED , IN VARIOUS FORMS , TO GUARANTEE TO RECIPIENTS OF RETIREMENT PENSIONS A MINIMUM INCOME IN EXCESS OF THE AMOUNT TO WHICH THEY WOULD NORMALLY BE ENTITLED ON THE BASIS OF THE PERIODS OF INSURANCE COMPLETED BY THEM AND THE CONTRIBUTIONS WHICH THEY HAVE PAID . THE PURPOSE OF SUCH PROVISIONS IS , IN GENERAL , TO PROVIDE THE RECIPIENTS WITH A GUARANTEED MINIMUM INCOME .

12 THAT WAS THE OBJECTIVE IN VIEW OF WHICH THE COURT MADE REFERENCE IN ITS DECISION OF 30 NOVEMBER 1977 , CITED ABOVE , WHERE IN PARAGRAPH 5 IT IS STATED THAT ' ' ARTICLE 50 COVERS CASES WHERE THE PERIODS OF EMPLOYMENT OF THE WORKER UNDER THE LEGISLATION OF THE STATE TO WHICH HE WAS SUBJECT WERE RELATIVELY SHORT WITH THE RESULT THAT THE TOTAL AMOUNT OF THE BENEFITS PAYABLE BY THOSE STATES DOES NOT PROVIDE A REASONABLE STANDARD OF LIVING ' ' .

13 THAT VIEW MAY BE DEDUCED FROM THE ACTUAL WORDING OF ARTICLE 50 , WHERE REFERENCE IS MADE IN THE HEADING AND IN THE BODY OF THE ARTICLE TO THE AWARD OF A ' ' SUPPLEMENT ' ' , MEANING AN ADDITIONAL PAYMENT IN EXCESS OF THE MINIMUM PAYABLE IN APPLICATION OF THE NORMAL RULES UNDER A PARTICULAR NATIONAL LEGAL SYSTEM . THAT VIEW MAY LIKEWISE BE DEDUCED FROM THE SECOND SENTENCE OF ARTICLE 50 , WHICH STATES THAT A RECIPIENT OF BENEFITS TO WHOM THE REGULATION APPLIES IS ENTITLED TO PAYMENT OF THE ' ' DIFFERENCE ' ' BETWEEN THE TOTAL OF THE BENEFITS PAYABLE UNDER THE REGULATION , THAT IS TO SAY , THE SUM RESULTING FROM THE NORMAL APPLICATION OF THE RULES CONCERNING AGGREGATION AND APPORTIONMENT LAID DOWN IN ARTICLE 46 , AND THE MINIMUM BENEFIT WHICH IS GUARANTEED BY THE LAW OF THE STATE OF RESIDENCE . SUCH A METHOD OF CALCULATION IMPLIES THAT WHAT IS MEANT IS A MINIMUM RESULTING FROM A SPECIFIC GUARANTEE LAID DOWN UNDER NATIONAL LEGISLATION AND NOT THE MINIMUM BENEFITS WHICH MAY RESULT FROM THE NORMAL OPERATION OF THE RULES CONCERNING THE DETERMINATION OF RIGHTS TO RETIREMENT PENSION ON THE BASIS OF THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED AND THE CONTRIBUTIONS WHICH HAVE BEEN PAID .

14 THOSE CONSIDERATIONS MAKE IT CLEAR THAT THE MINIMUM BENEFITS REFERRED TO IN ARTICLE 50 ARE DISTINCT FROM THE ' ' THEORETICAL AMOUNT ' ' REFERRED TO IN ARTICLE 46 ( 2 ) ( A ), WHICH DOES NOT REPRESENT A SUM THE ACTUAL PAYMENT OF WHICH IS GUARANTEED , BUT FORMS THE BASIS OF CALCULATION USED IN APPLYING THE RULES CONCERNING AGGREGATION AND APPORTIONMENT .

15 THE REPLY TO THE QUESTION WHICH HAS BEEN RAISED MUST THEREFORE BE THAT ARTICLE 50 OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT A ' ' MINIMUM BENEFIT ' ' EXISTS ONLY WHERE THE LEGISLATION OF THE STATE OF RESIDENCE INCLUDES A SPECIFIC GUARANTEE THE OBJECT OF WHICH IS TO ENSURE FOR RECIPIENTS OF SOCIAL SECURITY BENEFITS A MINIMUM INCOME WHICH IS IN EXCESS OF THE AMOUNT OF BENEFIT WHICH THEY MAY CLAIM SOLELY ON THE BASIS OF THEIR PERIODS OF INSURANCE AND THEIR CONTRIBUTIONS .

16 IN VIEW OF THE FOREGOING THE SECOND QUESTION RAISED BY THE NATIONAL COURT HAS NO PURPOSE .

17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , DIVISIONAL COURT , BY ORDER OF 18 DECEMBER 1980 , HEREBY RULES :

ARTICLE 50 OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT A ' ' MINIMUM BENEFIT ' ' EXISTS ONLY WHERE THE LEGISLATION OF THE STATE OF RESIDENCE INCLUDES A SPECIFIC GUARANTEE THE OBJECT OF WHICH IS TO ENSURE FOR RECIPIENTS OF SOCIAL SECURITY BENEFITS A MINIMUM INCOME WHICH IS IN EXCESS OF THE AMOUNT OF BENEFIT WHICH THEY MAY CLAIM SOLELY ON THE BASIS OF THEIR PERIODS OF INSURANCE AND THEIR CONTRIBUTIONS .