61995J0025

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Social security for migrant workers ° Community rules ° Matters covered ° Benefits covered and benefits excluded ° Criteria for distinguishing between them ° Adaptation allowance granted to German mine workers from the time at which they are laid off to the time at which they are awarded an old-age pension ° Excluded

(Council Regulation No 1408/71, Art. 4(1) and (2))

Article 4(1) and (2) of Regulation No 1408/71 must be interpreted as not applying to benefits which, like those provided for by the 1971 and 1988 German guidelines on the granting of the adaptation allowance to employees in the coal-mining industry, are granted by a Member State in the form of non-compulsory national subsidies to workers from the time at which they are laid off to the time at which they attain retirement age.

That allowance, which does not appear on the list of social security benefits expressly set out in Article 4(1) of Regulation No 1408/71, does not, by virtue of the factors relating to it and, in particular, its purposes and the conditions for its grant, display characteristics such as to enable a sufficient link to be established between them and any of the risks mentioned on that list. Although the benefits display certain similarities with old-age benefits as regards the method by which they are calculated and certain of their purposes, they nevertheless clearly differ from old-age benefits in that they pursue an object related to employment policy and are financed out of public funds, and although they are granted to workers who have been laid off, they differ from unemployment benefit in that, in addition to the fact that the amount of the allowance is determined in accordance with the provisions governing old-age benefits, recipients of adaptation allowances are not required to register as job-seekers, to keep themselves available on the employment market, or to refrain from undertaking an activity as an employed or self-employed person the income from which exceeds a specified ceiling.

In Case C-25/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hessicher Verwaltungsgerichtshof (Germany) for a preliminary ruling in the proceedings pending before that court between

Siegfried Otte

and

Federal Republic of Germany

on the interpretation of Articles 4(1) and (2), 12(2) and 46 of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and Article 7 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as amended and updated by Regulation No 2001/83 (OJ 1983 L 230, p. 86),

THE COURT (Fifth Chamber),

composed of D.A.O. Edward, President of the Chamber, J.-P. Puissochet, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann and P. Jann, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

° Siegfried Otte, by H. Herbartz, Rechtsanwalt, Herzogenrath,

° the German Government, by E. Roeder, Ministerialrat, Federal Ministry of the Economy, acting as Agent,

° the Commission of the European Communities, by M. Patakia of its Legal Service, and H. Kreppel, a German civil servant seconded to that service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Otte, represented by H. Herbartz, the German Government, represented by B. Kloke, Oberregierungsrat, Federal Ministry of the Economy, acting as Agent, and the Commission, represented by M. Patakia and J. Grunwald, Legal Adviser, acting as Agent, at the hearing on 28 March 1986,

after hearing the Opinion of the Advocate General at the sitting on 14 May 1996,

gives the following

Judgment

1 By order of 12 January 1995, received at the Court on 2 February 1995, the Hessicher Verwaltungsgerichtshof (Higher Administrative Court, Hessen) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty four questions on the interpretation of Articles 4(1) and (2), 12(2) and 46 of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter "Regulation No 1408/71") and Article 7 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as amended and updated by Regulation No 2001/83 (OJ 1983 L 230, p. 86, hereinafter "Regulation No 574/72").

2 Those questions were raised in proceedings between Mr Otte and the Federal Republic of Germany concerning the setting off against an adaptation allowance paid by the Bundesamt fuer Wirtschaft (Federal Office of Economic Affairs, hereinafter "the Bundesamt") of a Netherlands invalidity pension also received by Mr Otte.

3 Mr Otte, who has possessed Netherlands nationality since 1981, worked for many years in the German mining industry. He was born on 3 January 1930; he was insured in Germany under the miners' sickness and invalidity insurance scheme from August 1948 to December 1958 and from December 1979 to August 1987. From January 1959 to July 1968 he was insured in Germany under the general scheme for employees, and from August 1968 to November 1979 and from January 1981 to February 1982 he was insured under the Netherlands general social security scheme.

4 As from January 1987, Mr Otte suffered from an illness which prevented him from working and he therefore received an invalidity pension from the Federal German miners' fund.

5 Having been laid off in 1987, Mr Otte applied on 29 February 1988 to the Bundesamt for benefit under the Richtlinien ueber die Gewaehrung von Anpassungsgeld an Arbeitnehmer des Steinkohlenbergbaus (Guidelines on the granting of adaptation allowance to employees in the coal-mining industry) of 13 December 1971, in the version adopted on 6 June 1983 (hereinafter "the 1971 Guidelines").

6 Pursuant to Paragraph 3 of the 1971 Guidelines:

"An adaptation allowance may be granted only if the worker

1. has been laid off by the employer between 30 June 1971 and 1 January 1990 following closure or a rationalization measure, for reasons not attributable to him,

2. would, if he had retained the post which he held in the undertaking until that time, have fulfilled, within a period not exceeding five years ° reckoned from the day on which he was laid off ° the conditions for entitlement to:

(a) the miners' retirement pension (Paragraph 48(1) of the Reichknappschaftsgesetz (RKG) [Law governing the Mineworkers' Insurance Fund]),

(b) the miners' retirement pension following a period of unemployment (Paragraph 48(2) of the RKG),

(c) the miners' retirement pension for miners who have completed a specified length of service (Paragraph 48(1), point 2, of the RKG),

(d) the miners' retirement pension under Paragraph 48(3) or (5) of the RKG

or

(e) the compensatory benefit for miners (Paragraph 98a of the RKG),

3. in the cases covered by 2(a), (b) and (d), has completed, when he is laid off, an insurance period of at least 180 calendar months, and

4. has worked in a German coal mine without interruption during the two years before he is laid off, unless that period was interrupted for reasons not attributable to him.

The undertaking' s social redeployment scheme under which the worker is laid off must have been drawn up in concert with the Federal Minister of the Economy. The undertaking must receive from the Federal Minister of the Economy confirmation that the measure resulting in the laying off is a closure or a rationalization measure within the meaning of Paragraph 2(2), points 3 or 4."

7 In his application for an adaptation allowance, Mr Otte stated that with effect from 1 March 1988 he was to receive a miners' invalidity pension under the RKG. However, he did not mention that he was already in receipt, as from 15 January 1988, of a Netherlands invalidity pension under the Wet Arbeidsongeschiktheid (Law on incapacity for work, hereinafter "the WAO").

8 By decision of 29 August 1988, the Bundesamt fixed the amount of the adaptation allowance granted to Mr Otte as DM 2 604.70 per month. In accordance with the 1971 Guidelines, the Bundesamt applied by analogy the rules on miners' pensions and took into account the insurance periods completed in the Netherlands in addition to those completed in Germany. The Bundesamt then set off the miners' invalidity pension received under the RKG against the adaptation allowance, reducing the latter to DM 1 960.70 per month.

9 After learning that Mr Otte was also in receipt of an invalidity pension in the Netherlands, on 29 May 1989 the Bundesamt reduced his adaptation allowance by deducting from it the Netherlands invalidity pension. At the same time, it called on Mr Otte to reimburse the sums improperly paid to him. That decision was made under the Richtlinien ueber die Gewaehrung von Anpassungsgeld an Arbeitnehmer des Steinkohlenbergbaus of 22 September 1988 (hereinafter "the 1988 Guidelines"), which replaced the 1971 Guidelines as from 29 September 1988. The changes made to Paragraph 3 of the 1971 Guidelines by the 1988 Guidelines are essentially of a formal nature. However, in Paragraph 3 a new subparagraph 2 now provides:

"A worker covered by Paragraph 2(1), point 3, may receive the adaptation allowance only if the undertaking mining brown coal takes on a worker previously engaged in the mining of hard coal (Steinkohle) or one from a special mining undertaking."

10 Mr Otte' s entitlement to the adaptation allowance expired on 31 January 1990, the month in which he attained the age of 60 and his German invalidity pension under the RKG was converted into a miners' retirement pension with effect from 1 February 1990.

11 Having unsuccessfully contested all the Bundesamt' s amending decisions affecting him, Mr Otte brought an action before the Verwaltungsgericht Gelsenkirchen (Administrative Court, Gelsenkirchen) against the decisions by which the Bundesamt had set off his Netherlands invalidity pension against the amount of the German adaptation allowance and had claimed reimbursement of the sums unduly paid.

12 By judgment of 23 January 1992, the Verwaltungsgericht Frankfurt am Main (Administrative Court, Frankfurt am Main), to which the case had been referred at Mr Otte' s request, dismissed the latter' s application, taking the view that the Bundesamt had been lawfully entitled, in calculating the adaptation allowance, to treat the Netherlands invalidity pension in the same way as a German pension for incapacity for work. It considered the adaptation allowance to be a kind of pre-retirement pension designed to place the person concerned, before the prescribed time, in the situation in which he would be if he were in receipt of an old-age pension. The adaptation allowance did not derive from acquired rights but was a State subsidy which might be awarded by the Bundesamt at its discretion. Moreover, if insurance periods completed abroad were taken into account in favour of the recipient both to determine his right to receive the adaptation allowance and to calculate its amount, any foreign benefits granted to him on the basis of the same insurance periods would in turn have to be deducted from the allowance. If that were not the case, the insurance periods completed abroad would give rise to a double benefit.

13 Mr Otte appealed against that judgment to the Hessicher Verwaltungsgerichtshof. He submitted that the calculation method applied by the Bundesamt was contrary to Article 51 of the EC Treaty: the benefit granted to him was less than that which he would have received if he had been retired since, in such a case, he would have received at the same time the benefits calculated by reference to the insurance periods completed in both Member States, without any reduction whatsoever.

14 The German Government, on the other hand, considers that the Verwaltungsgerichtshof was right to take the view that the adaptation allowance constituted a kind of pre-retirement pension which, unlike old-age pensions properly so called, is not based on the contribution periods completed by the worker but is in the nature of a subsidy paid by the State and does not fall within the matters covered by Regulations Nos 1408/71 and 574/72.

15 In those circumstances, the national court stayed the proceedings pending a ruling from the Court of Justice on the following questions:

"(1) Are Article 4(1) and (2), and in particular Article 4(1)(c) of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), to be interpreted as also applying to benefits granted by a Member State in the form of a national subsidy upon application and without legal entitlement (in this case in accordance with the Guidelines on the Granting of Adaptation Allowance to Employees in the Coal-Mining Industry) to older employees in the coal-mining industry laid off as a result of closure or rationalization measures?

(2) If the answer is in the affirmative:

Does Article 4(1)(c) of Regulation (EEC) No 1408/71 require the national subsidy granted by the Member State to be assessed in accordance with Article 46 of Regulation (EEC) No 1408/71, having regard to Article 46(2)(b) in particular?

(3) If the national subsidy granted by the Member State is to be assessed in accordance with Article 46 of Regulation (EEC) No 1408/71:

Does the first sentence of Article 12(2) of Regulation (EEC) No 1408/71 permit a pension, within the meaning of Article 1(t) of Regulation (EEC) No 1408/71, paid by another Member State (in this case the Netherlands WAO pension) to be deducted, or does the second sentence of Article 12(2) of Regulation (EEC) No 1408/71 preclude such deduction?

(4) If a deduction in accordance with the first sentence of Article 12(2) of Regulation (EEC) No 1408/71 is permissible:

Is such deduction limited by Article 7(1)(b) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983?"

The first question

16 By its first question, the national court asks essentially whether Article 4(1) and (2) of Regulation No 1408/71 must be interpreted as covering benefits which, like those provided for by the 1971 and 1988 Guidelines, are paid by a Member State, in the form of non-compulsory national subsidies, to workers from the time at which they are laid off to the time at which they attain retirement age.

17 In answering that question it must be borne in mind that, pursuant to Article 4(1), (2) and (4) of Regulation No 1408/71,

"1. This regulation shall apply to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

(c) old-age benefits;

(d) survivor' s benefits;

(e) benefits in respect of accidents at work and occupational diseases;

(f) death grants;

(g) unemployment benefits;

(h) family benefits.

2. This regulation shall apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or shipowner in respect of the benefits referred to in paragraph 1.

...

4. This regulation shall not apply to social and medical assistance, to benefit schemes for victims of war or its consequences, or to special schemes for civil servants and persons treated as such."

18 It is clear from those provisions that Regulation No 1408/71 applies to all legislation of the Member States concerning the branches of social security listed in subparagraphs (a) to (h) of Article 4(1) thereof, whilst "social and medical assistance" are matters not covered by it.

19 First, it should be noted that the failure to include the adaptation allowance in the declaration on the scope of Regulation No 1408/71 made by the Federal Republic of Germany pursuant to Article 5 of the same regulation is of little importance.

20 The fact that a Member State did not mention a law in that declaration does not have the effect of excluding that law ipso facto from the matters covered by Regulation No 1408/71 (see Case C-35/77 Beerens v Rijkdienst voor Arbeidsvoorziening [1977] ECR 2249, paragraph 9; Case 70/80 Vigier v Bundesversicherungsanstalt fuer Angestellte [1981] ECR 229, paragraph 15; and Case C-327/92 Rheinhold & Malha [1995] ECR I-1223, paragraph 18).

21 Next, as the Court has repeatedly held, the distinction between benefits which are excluded from the scope of Regulation No 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant, and not on whether the national legislation describes the benefit as a social security benefit or not (see in particular Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout [1985] ECR 973, paragraph 11, and Case 122/84 Scrivner v Centre Public d' Aide Sociale de Chastre [1985] ECR 1027, paragraph 18).

22 In order to fall within the scope of Regulation No 1408/71, legislation must in particular cover one of the risks expressly specified in Article 4(1) of that regulation. That list is exhaustive, so that a branch of social security not mentioned does not fall within that category even if it confers upon individuals a legally defined position entitling them to benefits (see in particular Hoeckx, paragraph 12, and Scrivner, paragraph 19).

23 Consequently, since the adaptation allowance does not appear on the list of social security benefits expressly set out in Article 4(1) of Regulation No 1408/71, it is necessary to examine the factors relating to it and, in particular, its purposes and the conditions for its grant, in order to determine whether a sufficient link can be established between that allowance and any of the risks mentioned on that list.

24 According to Mr Otte, the adaptation allowance paid by the Bundesamt to workers laid off by a German coal-mining undertaking constitutes a non-contributory social security scheme within the meaning of Article 4(2) of Regulation No 1408/71 and more precisely an unemployment benefit within the meaning of Article 4(1)(g) since the allowance is inseparably linked to the loss of employment resulting from the closure or rationalization decided on by the employer.

25 On the other hand, the German Government contends that the adaptation allowance is not a social security benefit within the meaning of Article 4(1) of Regulation No 1408/71. Moreover, examination of the factors relating to it, in particular its purposes and the conditions for its grant, discloses no reason for treating it either as an unemployment benefit or as an old-age benefit. According to the German Government, the adaptation allowance corresponds in practice to a pre-retirement pension designed to cover the period ending upon the worker' s retirement and, by virtue of the case-law of the Court of Justice, does not thereby come within the scope of Regulation No 1408/71.

26 Finally, in the Commission' s view, even though the adaptation allowance is in some respects similar to both an old-age benefit and an unemployment benefit, the decisive criterion in this case is the method of calculation of the allowance, for which the national rules on retirement pensions apply by analogy, in accordance with the 1971 and 1988 Guidelines. The adaptation allowance thus displays such close links with an old-age benefit that it could be brought within that branch of social security, which is mentioned in Article 4(1) of Regulation No 1408/71.

27 As the Advocate General points out in point 28 et seq. of his Opinion, it is clear from the documents before the Court that the adaptation allowance is financed out of public funds and is granted at the discretion of the competent authorities within the limits of the budgetary resources of the federal administration and of each of the Laender. Its primary purpose is to provide sufficient means of subsistence for coal miners laid off following a rationalization measure who have not yet reached retirement age and are therefore not yet entitled to an old-age pension. Moreover, the period for which the allowance is paid is taken into consideration for the purposes of acquiring pension rights and determining the amount thereof. The existence of the adaptation allowance ensures that workers who are laid off have some income and are thereby removed from the sphere of unemployment insurance, regardless of whether they are laid off following a closure or rationalization measures. Furthermore, in the case of rationalization, the aim of the allowance, which has to do with employment policy, is further reinforced by the fact that the allowance is paid to workers laid off by an undertaking mining brown coal only if, by way of replacement, that undertaking recruits a worker from the hard-coal mining sector.

28 As regards the conditions for granting the adaptation allowance, Paragraph 3 of both the 1971 and the 1988 Guidelines lists the following requirements: the person concerned must have worked in a coal mine in Germany for at least the two years preceding his being laid off; he must at that time have completed an insurance period which is normally of 180 months, have been laid off for reasons beyond his control following a closure or an employment rationalization plan approved by the Federal Ministry of the Economy and be entitled to a retirement pension within a period not exceeding five years following the termination of his employment.

29 Finally, it is clear from Paragraph 4 of both the 1971 Guidelines and the 1988 Guidelines that the amount of the adaptation allowance is determined on the basis of the pension rights which the worker has acquired in the mining sector at the time when he is laid off. The periods of contribution to the social security schemes of other Member States and as a general rule the periods of affiliation to the general scheme for employees in the same Member State are also taken into account, with the result that, if the worker receives a benefit on the basis of those periods, the amount thereof is deducted from the adaptation allowance in order to avoid any duplication of benefit for the same contribution period.

30 It must therefore be held that, whilst benefits of the kind at issue display certain similarities with old-age benefits as regards the method by which they are calculated and certain of their purposes, including that of ensuring sufficient means of subsistence for people who have completed a prescribed contribution period under a social security scheme, they nevertheless clearly differ from old-age benefits by reason of certain other purposes that they pursue and the conditions for their grant.

31 Benefits such as adaptation allowances differ from old-age benefits in that they pursue an object related to employment policy. In the case of rationalization, they make it possible to release posts held by workers who are near the age of retirement, an aim which emerged only after the implementation of Regulation No 1408/71 in the context of the economic crisis which has for some years affected the Community in general and the mining sector in particular (see, to that effect, Case 171/82 Valentini v Assedic [1983] ECR 2157, paragraph 17). In the case of closures too the grant of the allowance contributes, as indicated in paragraph 27 of this judgment, to reducing the number of laid-off workers who are subject to the unemployment insurance scheme.

32 The adaptation allowance also differs from old-age benefits with regard to the conditions for its grant. It is neither financed nor acquired on the basis of contributions from the recipients themselves and it is granted to workers who have been laid off before retirement age for a limited period of time which is taken into account for calculation of the retirement pension. Moreover, it lapses when the recipient dies without any entitlement being transmitted to those who survive him.

33 The objective related to employment policy pursued by the allowance and the conditions for its grant in practice render it similar in some respects to pre-retirement benefits, which are not yet covered by Regulation No 1408/71. In that connection, it must be borne in mind that the Commission has submitted to the Council two proposals for EEC regulations amending Regulation No 1408/71: one for the benefit of employees who have lost their jobs (18 June 1980, OJ 1980 C 169, p. 22) and one for the benefit of recipients of pre-retirement benefits (12 January 1996, OJ 1996 C 62, p. 14), so as to take account of the specific characteristics of benefits of the kind at issue here.

34 It must also be pointed out, as the German Government rightly observes, that to equate the adaptation allowance to a benefit covered by Regulation No 1408/71 would in most cases have the result of reducing the amount of the allowance paid to its recipients who, unlike Mr Otte, do not in general fulfil the conditions for receiving at the same time a pension in another Member State. That amount would be calculated by taking account only of the contribution periods completed in Germany, that is to say by applying the pro rata rules. Such a result would fall far short of one of the main aims of the allowance, which is to ensure that sufficient means of subsistence are available to workers who have been laid off before retirement age.

35 Although the adaptation allowances do not display a sufficient link with the old-age benefits referred to in Article 4(1)(c) of Regulation No 1408/71, no such link can be established with the unemployment benefits referred to in Article 4(1)(g) either.

36 Suffice it to say, in that respect, that in addition to the fact that the amount of the allowance is determined in accordance with the provisions governing old-age benefits, recipients of adaptation allowances are not required to register as job-seekers, to keep themselves available on the employment market, or to refrain from undertaking an activity as an employed or self-employed person the income from which exceeds a specified ceiling.

37 It must therefore be concluded that those conditions for the grant of the adaptation allowance, which derive from the objective related to employment policy pursued by the allowance, and, in particular, involve removing laid-off workers from the sphere of unemployment insurance, differ clearly from those which characterize unemployment benefit within the meaning of Article 4(1)(g) of Regulation No 1408/71.

38 In those circumstances, it must be stated in reply to the national court that Article 4(1) and (2) of Regulation No 1408/71 must be interpreted as not applying to benefits which, like those provided for by the 1971 and 1988 Guidelines, are granted by a Member State in the form of non-compulsory subsidies to workers from the time at which they are laid off to the time at which they attain retirement age.

The remaining questions

39 In view of the answer given to the first question, it is unnecessary to answer the others.

Costs

40 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber)

in answer to the questions referred to it by the Hessicher Verwaltungsgerichtshof, by order of 12 January 1995, hereby rules:

Article 4(1) and (2) of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted as not applying to benefits which, like those provided for by the 1971 and 1988 Guidelines on the granting of the adaptation allowance to employees in the coal-mining industry, are granted by a Member State in the form of non-compulsory subsidies to workers from the time at which they are laid off to the time at which they attain retirement age.