61992J0023

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Social security for migrant workers ° Legislation of a Member State within the meaning of Article 1(j) of Regulation No 1408/71 ° Concept ° Social security convention concluded between a single Member State and a non-member State ° Excluded ° Convention incorporated as statute law into the domestic legal order ° No effect

(Regulation No 1408/71 of the Council, Art. 1(j))

It follows from the provisions of Regulation No 1408/71 that the only international social security conventions which fall within its field of application are those to which at least two Member States are contracting parties and that the regulation applies to conventions concluded with one or more non-member States only in so far as relations between Member States are concerned. On the other hand, no provision of the regulation covers conventions concluded between a single Member State and one or more non-member States, either as regards the question whether and to what extent the scheme of the regulation is to replace them or as regards the application of the principle of equal treatment. It must therefore be concluded that the regulation was intended to exclude such conventions from its field of application.

In those circumstances Article 1(j) of Regulation No 1408/71 must be interpreted as meaning that the concept of "legislation" referred to in that article does not cover the provisions of international social security conventions concluded between a single Member State and a non-member State. That interpretation is not invalidated by the fact that such conventions have been incorporated, as statute law, into the domestic legal order of the Member State concerned.

In Case C-23/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht for a preliminary ruling in the proceedings pending before that court between

Maria Grana-Novoa

and

Landesversicherungsanstalt Hessen,

also represented: Landesversicherungsanstalt Baden,

on the interpretation of Article 7 of the EEC Treaty and Articles 1(j) and 3(1) 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 consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT,

composed of: C.N. Kakouris (President of Chambers), acting for the President, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: W. Van Gerven,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Maria Grana-Novoa, by G. Krutzki, Rechtsanwalt, Frankfurt-am-Main, Federal Republic of Germany,

° the Landesversicherungsanstalt Hessen, by H. Adelmann, Director,

° the German Government, by E. Roeder, Ministerialrat at the Federal Ministry for Economic Affairs, and J. Karl, Regierungsdirektor at the said Ministry, acting as Agents,

° the Italian Government, by Professor L. Ferrari Bravo, Head of the Legal Department of the Ministry of Foreign Affairs, assisted by F. Guicciardi, Avvocato dello Stato, acting as Agent,

° the Portuguese Government, by S. Pizarro, Director General of the Department for International Relations and Social Security Conventions at the Ministry of Employment and Social Security, and L. Fernandes, Director of the Legal Department of the Directorate General for the European Communities at the Ministry of Foreign Affairs, acting as Agents,

° the Government of the United Kingdom, by S. Cochrane, of the Treasury Solicitor' s Department, acting as Agent,

° the Commission of the European Communities, by M. Patakia, a member of its Legal Department, acting as Agent, assisted by B. Schulte, Rechtsanwalt at the Max-Planck-Institut fuer Auslaendisches und Internationales Sozialrecht, Munich, Federal Republic of Germany,

having regard to the Report for the Hearing,

after hearing the oral observations of the German Government, the Netherlands Government, represented by J.W. de Zwaan, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, the United Kingdom, represented by S. Cochrane, assisted by N. Paines, Barrister, acting as Agents, and the Commission at the hearing on 2 March 1993,

after hearing the Opinion of the Advocate General at the sitting on 28 April 1993,

gives the following

Judgment

1 By order of 28 August 1991, received at the Court on 28 January 1992, the Bundessozialgericht (Federal Social Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 7 of the Treaty and of Articles 1(j) and 3(1) 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 consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 The questions arose in the course of proceedings between Maria Grana-Novoa and the Landesversicherungsanstalt (Regional Insurance Office) Hessen, concerning the rejection of her application for an invalidity pension.

3 It appears from the documents before the Court that Ms Grana-Novoa, a Spanish national, has never worked in her country of origin. She has, on the other hand, pursued an occupation subject to compulsory social insurance, first in Switzerland, from December 1970 to June 1975, and then in the Federal Republic of Germany, from February 1979 to October 1982.

4 In Germany, Ms Grana-Novoa became permanently incapacitated for work and in August 1983 she applied for an invalidity pension. However, the Landesversicherungsanstalt Hessen refused her such a pension on the ground that she had not worked in the Federal Republic of Germany for a sufficient number of years to complete the qualifying period required by the German rules. Ms Grana-Novoa challenged that decision before the German courts.

5 It is common ground that Ms Grana-Novoa is not entitled to an invalidity pension by the application of German law alone, but she could receive such a pension in the Federal Republic if the insurance periods completed by her in Switzerland were also taken into account.

6 For that purpose Ms Grana-Novoa relied, before the German courts, on the combined provisions of two bilateral social security conventions concluded by the Federal Republic with the Swiss Confederation on the one hand and the Kingdom of Spain on the other.

7 The German-Swiss convention, concluded in 1964 and amended in 1975, provides, subject to certain conditions, for the application of the principle of the aggregation of insurance periods completed in the Federal Republic and in Switzerland, but restricts them to nationals of the two contracting States. The German-Spanish convention, concluded in 1973 and amended in 1975, provides that, for the purposes of its application, German and Spanish nationals are to be treated identically. Pursuant to the German Basic Law, those conventions were incorporated into the domestic legal order by a Federal statute.

8 The final protocol to the German-Swiss convention includes a safeguard clause worded as follows:

"Where, in addition to the conditions to which the application of this Convention is subject, the conditions for the application of another convention or of supranational rules are also met, the German institution shall not take account, for the application of this Convention, of that other convention or of those supranational rules unless otherwise provided therein."

9 According to the German courts, that clause prevents Ms Grana-Novoa from relying cumulatively upon the German-Swiss and the German-Spanish conventions.

10 Having been unsuccessful at first and second instance, Ms Grana-Novoa brought the case before the Bundessozialgericht, which was unsure whether, since 1 January 1986, the date of the accession of the Kingdom of Spain to the European Communities, the Community principle of non-discrimination on grounds of nationality prevented the application of a safeguard clause such as that contained in the German-Swiss convention, inasmuch as it might obstruct, within the Member State which was a party to the convention, the free movement of nationals of other Member States.

11 In those circumstances the Bundessozialgericht referred the following questions to the Court for a preliminary ruling:

"1. Are Articles 3(1) and 1(j) 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 to be interpreted as meaning that 'legislation' within the meaning of Article 3(1) extends to the provisions of international conventions between a Member State and a non-member country which have been incorporated as statute law into the domestic legal order of that Member State?

2. If so, are Article 7 of the EEC Treaty and Article 3(1) of Regulation No 1408/71 to be interpreted as preventing a Member State from including in a convention with a non-member country arrangements whereby supra-national provisions are to be disregarded in the application of the convention if the aggregation of insurance periods completed under domestic pensions-insurance provisions with those completed under the pensions insurance of a non-member country, effected pursuant to the domestic law of that Member State for the purpose of applying the convention, is thereby denied to the nationals of other Member States of the EEC?"

12 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the course of the procedure and the observations submitted to the Court, which are hereinafter mentioned or discussed only in so far as is necessary for the reasoning of the Court.

The first question

13 For the purpose of answering this question it should be remembered, in the first place, that, according to Article 3(1) of Regulation No 1408/71 ("the Regulation"), "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 under the legislation of any Member State as the nationals of that State."

14 The expression "legislation", used in the above provision, is defined in Article 1(j) of the Regulation as meaning, for the purposes of the Regulation, "in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future" relating to the branches and schemes of social security covered by the Regulation.

15 In that respect it should first be emphasized that that definition does not mention international social security conventions.

16 Secondly, however, it should be pointed out that there are specific provisions in the Regulation concerning such conventions.

17 Article 6 of the Regulation, for example, lays down the principle that it is to replace the provisions of any social security convention binding either two or more Member States exclusively or at least two Member States and one or more other States, where, in the latter case, settlement of the cases concerned does not involve any institution of one of the non-member States.

18 By way of derogation from that principle, Article 7 provides that the Regulation is not to affect a number of existing international instruments, including the provisions of the bilateral social security conventions concluded between Member States and listed in Annex III to the Regulation.

19 Article 8 of the Regulation provides that two or more Member States may conclude with each other conventions based on the principles and in the spirit of the Regulation.

20 In accordance with Article 3(3) of the Regulation, the provisions of the social security conventions concluded between two Member States and listed in Annex III, which remain in force pursuant to Article 7, and the provisions of conventions concluded between Member States pursuant to Article 8(1), are to apply to all persons to whom the Regulation applies, unless otherwise provided in Annex III.

21 For the purpose of the application of the foregoing provisions, Article 1(k) of the Regulation provides that "' social security convention' means any bilateral or multilateral instrument which binds or will bind two or more Member States exclusively, and any other multilateral instrument which binds or will bind at least two Member States and one or more other States in the field of social security, for all or part of the branches and schemes set out [in the Regulation], together with agreements, of whatever kind, concluded pursuant to the said instruments".

22 It follows from the foregoing that, as regards international social security conventions, the Regulation is based on the principle that, in relations between the Member States and save for certain exceptions exhaustively enumerated, first, existing conventions cannot deprive the nationals of those States of the benefit of the scheme for coordination of the national social security systems which it has established and, secondly, new conventions concluded between the Member States cannot derogate from the rules and spirit of the Regulation, so that Community nationals must always be able to avail themselves of the provisions of the Regulation as regards the social security institutions of the various Member States concerned.

23 It follows therefore from the provisions of the Regulation that the only international social security conventions which fall within its field of application are those to which at least two Member States are contracting parties and that the Regulation applies to conventions concluded with one or more non-member States only in so far as relations between Member States are concerned.

24 On the other hand, no provision of the Regulation covers conventions concluded between a single Member State and one or more non-member States, either as regards the question of whether and to what extent the scheme of the Regulation is to replace them or as regards the application of the principle of equal treatment. It must therefore be concluded that the Regulation was intended to exclude such conventions from its field of application.

25 Had that not been so, special provisions would have been introduced to govern the application of the Regulation to such conventions, as was done in the Regulation to govern the position of conventions binding two or more Member States and those concluded between at least two Member States and one or more non -member States. It would be illogical to include wholly within the field of application of the Regulation conventions concluded by a single Member State with one or more non-member States when the Regulation expressly contains certain reservations with regard to its application to conventions concluded between two or more Member States.

26 In those circumstances, the concept of "legislation" within the meaning of the Regulation cannot cover social security conventions concluded between a single Member State and a non-member State, such as those at issue before the national court.

27 It should be added that that interpretation is not affected by the fact that such a convention has been incorporated in the form of statute law into the legal order of some Member States and thus forms part of their domestic law. The scope of the Regulation must be the same in all Member States so as to ensure its uniform application throughout the Community and cannot therefore depend upon the method of incorporation into the legal order of the various Member States of the international social security conventions which they have concluded.

28 Consequently the fact that an international convention has been incorporated as statute law into the domestic law of a Member State cannot suffice to bring that convention within the concept of "legislation" of that Member State for the purposes of the application of the Regulation.

29 It follows from all the foregoing considerations that the answer to the first question raised by the Bundessozialgericht should be that Articles 3(1) and 1(j) of the said Regulation No 1408/71 must be interpreted as meaning that the concept of "legislation" referred to in those articles does not cover the provisions of international social security conventions concluded between a single Member State and a non-member State. That interpretation is not invalidated by the fact that such conventions have been incorporated as statute law into the domestic legal order of the Member State concerned.

The second question

30 In view of the answer given to the first question, there is no need to answer the second question.

Costs

31 The costs incurred by the German, Italian, Netherlands, Portuguese and United Kingdom Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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,

in answer to the questions referred to it by the Bundessozialgericht by order of 28 August 1991, hereby rules:

Articles 3(1) and 1(j) 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 consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted as meaning that the concept of "legislation" referred to in those articles does not cover the provisions of international social security conventions concluded between a single Member State and a non-member State. That interpretation is not invalidated by the fact that such conventions have been incorporated as statute law into the domestic legal order of the Member State concerned.