61979J0793

SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - CALCULATION OF BENEFITS - APPLICATION BY ANALOGY WITH PROVISIONS ON INSURANCE FOR OLD AGE AND DEATH - CALCULATION OF THE THEORETICAL AND ACTUAL AMOUNT - SUPPLEMENTARY PERIOD ( ' ' ZURECHNUNGSZEIT ' ' ) - INCLUSION IN THE CALCULATION OF THE THEORETICAL AMOUNT - EXCLUSION IN THE CALCULATION OF THE ACTUAL AMOUNT

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 46 ( 2 ) ( A ) AND ( B ))

ALTHOUGH THE CALCULATION TO BE CARRIED OUT UNDER ARTICLE 46 ( 2 ) ( A ) OF REGULATION NO 1408/71 IS INTENDED TO GIVE A WORKER THE MAXIMUM THEORETICAL AMOUNT WHICH HE COULD CLAIM IF ALL PERIODS OF INSURANCE HAD BEEN COMPLETED IN THE STATE IN QUESTION , THE PURPOSE OF THE CALCULATION UNDER ARTICLE 46 ( 2 ) ( B ) IS SOLELY TO APPORTION THE RESPECTIVE BURDENS OF THE BENEFIT BETWEEN THE INSTITUTIONS OF THE MEMBER STATES CONCERNED IN THE RATIO OF THE LENGTH OF THE PERIODS OF INSURANCE COMPLETED IN EACH OF THE SAID MEMBER STATES BEFORE THE RISK MATERIALIZED .

IT FOLLOWS THAT IF , IN ORDER TO EVALUATE THE BENEFIT AWARDED IN THE EVENT OF PREMATURE INVALIDITY OR DEATH OF THE INSURED PERSON , THE LEGISLATION OF A MEMBER STATE PROVIDES THAT THE BENEFIT MUST BE CALCULATED IN RELATION TO NOT ONLY PERIODS OF INSURANCE COMPLETED BY THE INSURED PERSON BUT ALSO IN RELATION TO A SUPPLEMENTARY PERIOD ( ' ' ZURECHNUNGSZEIT ' ' ) EQUIVALENT TO THE INTERVAL OF THE TIME BETWEEN THE AGE OF THE INSURED PERSON AT THE TIME AT WHICH THE RISK MATERIALIZED AND THE TIME AT WHICH HE REACHED THE AGE OF 55 , THAT SUPPLEMENTARY PERIOD MUST ALSO BE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) BUT NOT IN THE CALCULATION OF THE ACTUAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( B ) OF REGULATION NO 1408/71 .

IN CASE 793/79

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

ALASTAIR MENZIES , OFFENBACH-WALDHEIM ,

AND

BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( FEDERAL INSURANCE OFFICE FOR CLERICAL STAFF ), BERLIN ,

ON THE INTERPRETATION OF ARTICLE 46 ( 2 ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY AN ORDER OF 19 SEPTEMBER 1979 RECEIVED AT THE COURT REGISTRY ON 5 NOVEMBER 1979 THE BUNDESSOZIALGERICHT REFERRED A QUESTION TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY ON THE INTERPRETATION OF ARTICLE 46 ( 2 ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THE QUESTION REFERRED TO THE COURT BY THE BUNDESSOZIALGERICHT IS WORDED IN THIS WAY :

' ' MUST THE EXPRESSIONS ' PERIODS OF INSURANCE . . . COMPLETED ' AND ' PERIODS OF INSURANCE . . . COMPLETED . . . BEFORE THE RISK MATERIALIZES ' CONTAINED IN ARTICLE 46 ( 2 ) ( A ) AND ( B ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES BE INTERPRETED AS ALSO INCLUDING THOSE PERIODS TREATED AS SUCH WITHIN THE MEANING OF ARTICLE 1 ( R ) OF THE REGULATION WHICH CAN ONLY START TO RUN WHEN THE RISK MATERIALIZES BUT WHICH MUST , IN ORDER TO OBTAIN AN APPROPRIATE PENSION , BE ADDED ON TO THE PERIODS OF INSURANCE COMPLETED WHEN THE RISK MATERIALIZES , SUCH AS THE GERMAN SUPPLEMENTARY PERIOD ( ZURECHNUNGSZEIT ) WITHIN THE MEANING OF ARTICLE 37 OF THE AVG?

' '

3 THIS QUESTION IS ASKED IN THE CONTEXT OF A DISPUTE BETWEEN A NATIONAL OF THE UNITED KINGDOM RESIDING IN THE FEDERAL REPUBLIC OF GERMANY , THE PLAINTIFF IN THE MAIN ACTION , AND THE BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( FEDERAL INSURANCE OFFICE FOR CLERICAL STAFF ), BERLIN , THE DEFENDANT IN THE MAIN ACTION . THE PLAINTIFF SUFFERED AN ACCIDENT AT WORK IN THE FEDERAL REPUBLIC IN DECEMBER 1975 AT A TIME WHEN HE HAD 24 MONTHS OF INSURANCE CONTRIBUTIONS IN GERMANY AND 248 MONTHS IN THE UNITED KINGDOM .

4 IN ORDER TO DETERMINE THE AMOUNT OF THE OCCUPATIONAL INVALIDITY PENSION TO WHICH THE PLAINTIFF WAS ENTITLED , THE DEFENDANT , FOR THE PURPOSE OF CALCULATING THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) OF REGULATION NO 1408/71 , TOOK INTO ACCOUNT NOT ONLY PERIODS OF INSURANCE ACTUALLY COMPLETED BY HIM IN GERMANY AND IN THE UNITED KINGDOM BUT ALSO A SUPPLEMENTARY PERIOD ( ZURECHNUNGSZEIT ) OF 199 MONTHS PURSUANT TO ARTICLE 37 OF THE LAW ON INSURANCE OF CLERICAL STAFF ( ANGESTELLTENVERSICHERUNGSGESETZ ). THAT SUPPLEMENTARY PERIOD WHICH IS INTENDED TO HELP EVALUATE THE BENEFITS GRANTED IN THE CASE OF PREMATURE INVALIDITY OR DEATH OF AN INSURED PERSON , IS CREDITED TO INSURED PERSONS WHO HAVE SUFFERED OCCUPATIONAL INVALIDITY BEFORE REACHING THE AGE OF 55 AND IS EQUAL TO THE PERIOD BETWEEN THE MONTH IN WHICH THE RISK MATERIALIZED AND THE LAST MONTH OF THE YEAR IN WHICH THE INSURED PERSON REACHES THE AGE OF 55 . IN THE CALCULATION OF THE ACTUAL AMOUNT OF THE BENEFIT PURSUANT TO ARTICLE 46 ( 2 ) ( B ) OF REGULATION NO 1408/71 THE DEFENDANT REFUSED HOWEVER TO TAKE THAT SUPPLEMENTARY PERIOD INTO ACCOUNT AND CONSEQUENTLY CALCULATED THE TIME-APPORTIONED RATIO OF THE BENEFITS ON THE FOLLOWING BASIS : 24 : 24 + 248 , AMOUNTING TO 8.82% OF THE THEORETICAL AMOUNT IN GERMANY .

5 THE DEFENDANT HAS ARGUED IN PARTICULAR THAT THIS METHOD OF CALCULATION IS IN KEEPING WITH DECISION NO 95 OF THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS OF 24 JANUARY 1974 CONCERNING THE INTERPRETATION OF ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 ON THE CALCULATION OF PRO RATA PENSIONS ( OFFICIAL JOURNAL C 99 , P . 5 ). ACCORDING TO THAT DECISION OF THE ADMINISTRATIVE COMMISSION - WHOSE TASK UNDER ARTICLE 81 ( A ) OF THE REGULATION IS TO DEAL WITH ALL QUESTIONS OF INTERPRETATION ARISING FROM THE PROVISIONS OF THE REGULATION WITHOUT PREJUDICE TO THE RIGHT OF THE AUTHORITIES , INSTITUTIONS AND THE PERSONS CONCERNED TO HAVE RECOURSE TO THE PROCEDURES AND TRIBUNALS PROVIDED FOR BY THE LEGISLATIONS OF MEMBER STATES , BY THE REGULATION OR BY THE TREATY - THE COMPETENT INSTITUTION OF THE MEMBER STATE WHOSE LEGISLATION PROVIDES THAT THE AMOUNT OF BENEFITS MUST BE DETERMINED BY TAKING INTO ACCOUNT PERIODS PRESUMED TO HAVE BEEN COMPLETED AFTER THE OCCURENCE OF THE EVENT INSURED AGAINST SHALL TAKE THESE PERIODS INTO CONSIDERATION SOLELY FOR CALCULATING THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) OF REGULATION NO 1408/71 , AND NOT FOR CALCULATING THE ACTUAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( B ) OF THAT REGULATION .

6 THE PLAINTIFF ON THE OTHER HAND ARGUED THAT THE SUPPLEMENTARY PERIOD IN QUESTION MUST BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING THE ACTUAL AMOUNT AS WELL . HE CONSEQUENTLY BROUGHT AN ACTION FOR A DECLARATION THAT HE IS ENTITLED TO A BENEFIT CALCULATED ON THE FOLLOWING BASIS : 24 + 199 : 24 + 248 + 199 , EQUIVALENT TO 47.34% OF THE THEORETICAL AMOUNT IN GERMANY .

7 THE QUESTION REFERRED TO THE COURT BY THE BUNDESSOZIALGERICHT IS MEANT TO ESTABLISH THE EXTENT TO WHICH A SUPPLEMENTARY PERIOD SUCH AS THAT PROVIDED FOR BY ARTICLE 37 OF THE ANGESTELLTENVERSICHERUNGSGESETZ MUST BE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE BENEFITS REFERRED TO IN SUBPARAGRAPHS ( A ) AND ( B ) OF ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 , BEARING IN MIND ARTICLE 1 ( R ) OF THAT REGULATION WHICH DEFINES ' ' PERIODS OF INSURANCE ' ' AS MEANING ' ' PERIODS OF CONTRIBUTION OR PERIODS OF EMPLOYMENT AS DEFINED OR RECOGNIZED AS PERIODS OF INSURANCE BY THE LEGISLATION UNDER WHICH THEY WERE COMPLETED OR CONSIDERED AS COMPLETED , AND ALL PERIODS TREATED AS SUCH , WHERE THEY ARE REGARDED BY THE SAID LEGISLATION AS EQUIVALENT TO PERIODS OF INSURANCE ' ' .

8 IT SHOULD BE OBSERVED AT THE OUTSET THAT THE ANSWER TO THE QUESTION REFERRED TO THE COURT MUST BE SOUGHT FIRST IN THE LIGHT OF THE PROVISIONS AND THE PURPOSE OF ARTICLE 46 ( 2 ) OF THE REGULATION QUOTED WHICH GOVERNS THE CALCULATION OF THE BENEFITS IN QUESTION . IF IT EMERGES THAT TAKING THE SUPPLEMENTARY PERIOD INTO ACCOUNT AT SOME STAGE IN THE CALCULATION PROVIDED FOR BY ARTICLE 46 ( 2 ) RUNS COUNTER TO THE SCHEME OF THAT PROVISION , THAT PERIOD MUST BE LEFT ASIDE AND ITS EXCLUSION MAY NOT BE CALLED IN QUESTION BY INVOKING ARTICLE 1 ( R ) OF THE SAID REGULATION .

9 THE CALCULATION OF THE BENEFITS REFERRED TO IN ARTICLE 46 ( 2 ) CAN BE BROKEN DOWN INTO TWO STAGES . AT THE FIRST STAGE REFERRED TO IN SUBPARAGRAPH ( A ) OF THAT PROVISION , WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF A MEMBER STATE , THE COMPETENT INSTITUTION OF THAT MEMBER STATE MUST FIRST CALCULATE THE THEORETICAL AMOUNT OF THE BENEFIT WHICH THE PERSON CONCERNED COULD CLAIM IF ALL THE PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATIONS OF THE MEMBER STATES CONCERNED HAD BEEN COMPLETED IN THE STATE IN QUESTION AND UNDER THE LEGISLATION ADMINISTERED BY IT . AT THE SECOND STAGE REFERRED TO IN SUBPARAGRAPH ( B ) OF THE SAME PROVISION , THE INSTITUTION THEN ESTABLISHES THE ACTUAL AMOUNT OF THE BENEFIT FOR WHICH IT IS RESPONSIBLE ON THE BASIS OF THE THEORETICAL AMOUNT REFERRED TO IN THE PRECEDING SUBPARAGRAPH AND IN THE RATIO WHICH THE LENGTH OF THE PERIODS OF INSURANCE COMPLETED BEFORE THE RISK MATERIALIZES UNDER THE LEGISLATION ADMINISTERED BY THAT INSTITUTION BEARS TO THE TOTAL LENGTH OF THE PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATIONS OF ALL THE MEMBER STATES CONCERNED BEFORE THE RISK MATERIALIZED .

10 AS REGARDS THE THEORETICAL AMOUNT , THE EXPRESS EFFECT OF ARTICLE 46 ( 2 ) ( A ) IS THAT IT MUST BE CALCULATED AS IF THE INSURED PERSON HAD CARRIED OUT HIS OCCUPATIONAL ACTIVITY EXCLUSIVELY IN THE MEMBER STATE IN QUESTION . IT FOLLOWS THAT IF , IN ORDER TO EVALUATE THE BENEFIT AWARDED IN THE EVENT OF PREMATURE INVALIDITY OR DEATH OF THE INSURED PERSON , THE LEGISLATION OF THAT STATE PROVIDES THAT THE BENEFIT MUST BE CALCULATED IN RELATION TO NOT ONLY PERIODS OF INSURANCE COMPLETED BY THE INSURED PERSON BUT ALSO IN RELATION TO A SUPPLEMENTARY PERIOD EQUIVALENT TO THE INTERVAL OF TIME BETWEEN THE AGE OF THE INSURED PERSON AT THE TIME AT WHICH THE RISK MATERIALIZED AND THE TIME AT WHICH HE REACHED THE AGE OF 55 , THAT SUPPLEMENTARY PERIOD MUST ALSO BE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE THEORETICAL AMOUNT REFERRED TO IN SUBPARAGRAPH ( A ).

11 SUCH A PERIOD , WHICH IS INTENDED TO ENSURE THAT THE LEVEL OF BENEFITS IS CALCULATED AS IF AN INSURED PERSON WAS AT LEAST 55 YEARS OF AGE AT THE TIME AT WHICH THE RISK MATERIALIZED , IRRESPECTIVE OF HIS TRUE AGE , CANNOT HOWEVER BE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE ACTUAL AMOUNT REFERRED TO IN SUBPARAGRAPH ( B ). ALTHOUGH THE CALCULATION TO BE CARRIED OUT UNDER SUBPARAGRAPH ( A ) IS INTENDED TO GIVE A WORKER THE MAXIMUM THEORETICAL AMOUNT WHICH HE COULD CLAIM IF ALL PERIODS OF INSURANCE HAD BEEN COMPLETED IN THE STATE IN QUESTION , THE PURPOSE OF THE CALCULATION UNDER SUBPARAGRAPH ( B ) IS DIFFERENT . THE LATTER PROVISION IS INTENDED SOLELY TO APPORTION THE RESPECTIVE BURDENS OF THE BENEFIT BETWEEN THE INSTITUTIONS OF THE MEMBER STATES CONCERNED IN THE RATIO OF THE LENGTH OF THE PERIODS OF INSURANCE COMPLETED IN EACH OF THE SAID MEMBER STATES BEFORE THE RISK MATERIALIZED . THE TAKING INTO ACCOUNT , IN THE CALCULATION OF THE APPORTIONMENT , OF A SUPPLEMENTARY PERIOD LIKE THE ONE IN THIS CASE , WHICH DOES NOT CORRESPOND TO ANY PERIOD OF INSURANCE OR EVEN OF ACTUAL RESIDENCE IN THE MEMBER STATE IN QUESTION COMPLETED BEFORE THE RISK MATERIALIZED , RESULTS IN UNILATERALLY AND ARTIFICIALLY UPSETTING THE BALANCE OF THE BURDEN OF THE BENEFITS EXISTING BETWEEN MEMBER STATES IN A WAY WHICH IS INCOMPATIBLE WITH THE SCHEME OF ARTICLE 46 ( 2 ).

12 CONSEQUENTLY THE ANSWER TO THE QUESTION REFERRED TO THE COURT SHOULD BE THAT A SUPPLEMENTARY PERIOD ( ZURECHNUNGSZEIT ) WHICH THE LEGISLATION OF A MEMBER STATE ADDS TO THE PERIODS OF INSURANCE COMPLETED BEFORE THE RISK MATERIALIZED IN ORDER TO EVALUATE THE BENEFIT AWARDED IN THE EVENT OF THE PREMATURE INVALIDITY OR THE PREMATURE DEATH OF AN INSURED PERSON MUST BE TAKEN INTO ACCOUNT IN THE CALCULATION OF THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) BUT NOT IN THE CALCULATION OF THE ACTUAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( B ) OF REGULATION NO 1408/71 .

13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . SINCE THE 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 NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY AN ORDER OF 19 SEPTEMBER 1979 , HEREBY RULES :

A SUPPLEMENTARY PERIOD ( ZURECHNUNGSZEIT ) WHICH THE LEGISLATION OF A MEMBER STATE ADDS TO THE PERIODS OF INSURANCE COMPLETED BEFORE THE RISK MATERIALIZED IN ORDER TO EVALUATE THE BENEFIT AWARDED IN THE EVENT OF THE PREMATURE INVALIDITY OR THE PREMATURE DEATH OF AN INSURED PERSON MUST BE TAKEN INTO ACOUNT IN THE CALCULATION OF THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( A ) BUT NOT IN THE CALCULATION OF THE ACTUAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ( B ) OF REGULATION NO 1408/71 .