61978J0266

SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH INSURANCE - AFFILIATION - CONDITIONS - APPLICATION OF NATIONAL LEGISLATION

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 45 )

THE SOLE OBJECTIVE OF REGULATION NO 1408/71 OF THE COUNCIL IS TO CO-ORDINATE THE NATIONAL LEGAL SYSTEMS OF SOCIAL SECURITY , EACH OF WHICH DETERMINES THE CONDITIONS FOR AFFILIATION TO THE VARIOUS SOCIAL SECURITY SCHEMES , INCLUDING THE CONDITIONS UNDER WHICH COMPULSORY AFFILIATION CEASES . THAT REGULATION THEREFORE , AND IN PARTICULAR ARTICLE 45 THEREOF , CANNOT BE INTERPRETED AS LAYING DOWN THE CONDITIONS UNDER WHICH COMPULSORY INSURANCE ARISES OR CEASES , SINCE THE ANSWER TO THAT QUESTION IS EXCLUSIVELY A MATTER FOR THE APPROPRIATE NATIONAL LAWS .

CONSEQUENTLY ARTICLE 45 IS NOT APPLICABLE SO AS TO DETERMINE THE EXISTENCE OR NON-EXISTENCE OF AN OBLIGATION TO EFFECT INSURANCE LAID DOWN BY NATIONAL LEGISLATION .

IN CASE 266/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN ( HIGHER SOCIAL COURT FOR NORTH RHINE-WESTPHALIA ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

BRUNO BRUNORI , MASTER STONEMASON AND SCULPTOR IN STONE ,

AND

LANDESVERSICHERUNGSANSTALT RHEINPROVINZ ( REGIONAL INSURANCE INSTITUTION FOR THE RHINE PROVINCE ) DUSSELDORF ,

ON THE INTERPRETATION OF ARTICLE 45 ( 1 ) 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 , HAVING REGARD TO ARTICLE 1 ( 1 ) OF THE GESETZ UBER EINE RENTENVERSICHERUNGSGESETZ ( GERMAN LAW ON INSURANCE OF CRAFTSMEN ) OF 8 SEPTEMBER 1960 ,

1 BY ORDER DATED 8 DECEMBER 1978 , RECEIVED AT THE COURT ON 22 DECEMBER 1978 , THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF ARTICLE 45 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 ) IN CONNEXION WITH THE APPLICATION OF THE GERMAN LAW ON PENSION INSURANCE FOR CRAFTSMEN .

2 THE PLAINTIFF IN THE MAIN ACTION IS AN ITALIAN NATIONAL WHO , FOLLOWING A PERIOD OF EMPLOYMENT IN ITALY , WHERE HE PAID CONTRIBUTIONS FOR 47 MONTHS TO THE ITALIAN OLD-AGE INSURANCE SCHEME , WAS EMPLOYED IN THE FEDERAL REPUBLIC OF GERMANY , WHERE HE PAID COMPULSORY CONTRIBUTIONS FOR 185 MONTHS TO THE GERMAN OLD-AGE INSURANCE SCHEME . ON 19 SEPTEMBER 1975 HIS NAME WAS ENTERED BY THE CHAMBER OF CRAFTS ON THE REGISTER OF CRAFTSMEN AS A SELF-EMPLOYED MASTER STONEMASON AND SCULPTOR IN STONE . FROM THAT DATE HE BECAME SUBJECT TO THE LAW ON PENSION INSURANCE FOR CRAFTSMEN WHICH PROVIDES FOR COMPULSORY INSURANCE IN THE PENSION SCHEME FOR EMPLOYED PERSONS SO LONG AS THE INSURED HAS PAID CONTRIBUTIONS FOR LESS THAN 216 MONTHS . IT APPEARS FROM THE FILE THAT THE PLAINTIFF HAS ONCE AGAIN BEEN WORKING AS AN EMPLOYED PERSON AS FROM 1 SEPTEMBER 1976 .

3 THE PLAINTIFF CONSIDERS THAT BECAUSE OF HIS CONTRIBUTIONS IN ITALY HE HAD PAID AT THE TIME WHEN HE WAS SUBJECT TO THE LEGISLATION ON PENSION INSURANCE FOR CRAFTSMEN CONTRIBUTIONS FOR MORE THAN 216 MONTHS SO THAT HE WAS NOT SUBJECT TO COMPULSORY INSURANCE DURING THE PERIOD WHEN HE WAS A SELF-EMPLOYED CRAFTSMAN .

4 THE COMPETENT SOCIAL SECURITY INSTITUTION , THE LANDESVERSICHERUNGSANSTALT RHEINPROVINZ , THE DEFENDANT IN THE MAIN ACTION , HOWEVER , TAKES THE VIEW THAT PROVISIONS OF REGULATION NO 1408/71 ON THE AGGREGATION OF INSURANCE PERIODS DO NOT APPLY IN THE PLAINTIFF ' S CASE . THE VIEW OF THE LANDESVERSICHERUNGSANSTALT IS THAT ARTICLE 45 OF THE REGULATION PROVIDES FOR AGGRETATION OF PERIODS ONLY FOR PURPOSES OF THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS . THAT RULE CANNOT THEREFORE BE APPLIED TO DETERMINE WHETHER THERE IS COMPULSORY INSURANCE UNDER A PARTICULAR PENSION INSURANCE SCHEME OR MORE PARTICULARLY TO ESTABLISH WHETHER LIABILITY TO COMPULSORY INSURANCE HAS CEASED .

IN ORDER TO DECIDE THE MATTER THE LANDESSOZIALGERICHT HAS PUT THE FOLLOWING TWO QUESTIONS TO THE COURT :

( 1 ) IS ARTICLE 45 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL , WHICH GOVERNS THE TAKING INTO CONSIDERATION OF INSURANCE PERIODS COMPLETED IN OTHER MEMBER STATES FOR THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGTH TO BENEFITS , ALSO TO BE APPLIED BY ANALOGY TO THE EXISTENCE OF THE OBLIGATION TO EFFECT SOCIAL INSURANCE?

( 2 ) WHEN DECIDING THE QUESTION OF THE OBLIGATION TO INSURE , WHICH IS LAID DOWN IN THE FIRST SENTENCE OF ARTICLE 1 ( 1 ) OF THE HANDWERKERVERSICHERUNGSGESETZ AND WHICH CEASES TO APPLY ONLY WHEN THERE ARE 216 MONTHLY INSURANCE CONTRIBUTIONS , ARE ITALIAN CONTRIBUTIONS ALSO TO ADDED TO THE GERMAN INSURANCE CONTRIBUTIONS OR NOT?

5 THE POSITION ADOPTED BY THE LANDESVERSICHERUNGSANSTALT WAS SUPPORTED BY THE COMMISSION BEFORE THE COURT . THE COMMISSION ARGUED THAT THE SOLE OBJECTIVE OF REGULATION NO 1408/71 IS TO CO-ORDINATE THE NATIONAL LEGAL SYSTEMS OF SOCIAL SECURITY , EACH OF WHICH DETERMINES THE CONDITIONS FOR AFFILIATION TO THE VARIOUS SECURITY SCHEMES , INCLUDING THE CONDITIONS UNDER WHICH COMPULSORY AFFILIATION CEASES . IN THESE CIRCUMSTANCES ARTICLE 45 OF THE REGULATION MUST BE UNDERSTOOD AS SOLELY DETERMINING THE EFFECT OF INSURANCE PERIODS COMPLETED UNDER THE VARIOUS NATIONAL LEGAL SYSTEMS AND NOT AS LAYING DOWN THE CONDITIONS UNDER WHICH COMPULSORY INSURANCE ARISES OR CEASES . IN THE COMMISSION ' S VIEW REGULATION NO 1408/71 CONTAINS NO PROVISION ON THIS QUESTION , THE ANSWER TO WHICH IS EXCLUSIVELY A MATTER FOR THE APPROPRIATE NATIONAL LAWS .

6 THE COURT IS OF THE VIEW THAT THIS POSITION IS CORRECT . ARTICLE 45 OF REGULATION NO 1408/71 CONTEMPLATES AGGREGATION OF INSURANCE PERIODS ONLY FOR THE PURPOSE OF THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS . AS SUCH IT DOES NOT DEAL WITH QUESTIONS RELATING TO AFFILIATION AND CESSATION OF AFFILIATION TO THE VARIOUS SOCIAL SECURITY SCHEMES , WHICH ARE MATTERS FOR THE NATIONAL LEGAL SYSTEMS ALONE .

7 THE REPLY TO THE QUESTIONS PUT BY THE LANDESSOZIALGERICHT SHOULD THEREFORE BE THAT ARTICLE 45 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS IS NOT APPLICABLE SO AS TO DETERMINE THE EXISTENCE OR NON-EXISTENCE OF AN OBLIGATION TO EFFECT INSURANCE LAID DOWN BY NATIONAL LEGISLATION .

COSTS

8 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 ACTION PENDING BEFORE THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN , 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 LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN BY ORDER OF 8 DECEMBER 1978 , HEREBY RULES :

ARTICLE 45 ( 1 ) 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 IS NOT APPLICABLE SO AS TO DETERMINE THE EXISTENCE OR NON-EXISTENCE OF AN OBLIGATION TO EFFECT INSURANCE LAID DOWN BY NATIONAL LEGISLATION .