61978J0144

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - PROVISIONS OF THE TREATY - DUTIES OF COUNCIL - LIMITS

( EEC TREATY , ARTICLE 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - MATTERS TO WHICH THEY APPLY - BENEFITS PROVIDED BY GERMAN LEGISLATION ON SUBSTITUTE PENSIONS ( FREMDRENTENGESETZ ) - EXCLUSION

( REGULATIONS NOS 3 AND 1408/71 OF THE COUNCIL )

1 . ARTICLE 51 OF THE TREATY REFERS ONLY TO SOCIAL SECURITY BENEFITS , SO THAT THE COUNCIL IS NOT REQUIRED TO ADOPT PROVISIONS RELATING TO BENEFITS NOT COVERED BY SOCIAL SECURITY .

2 . BENEFITS OF THE TYPE PROVIDED BY THE GERMAN LEGISLATION ON SUBSTITUTE PENSIONS ( FREMDRENTENGESETZ ) BY REASON OF INSURANCE PERIODS COMPLETED , PRIOR TO 1945 , OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY ARE NOT TO BE REGARDED AS COMING WITHIN THE SPHERE OF SOCIAL SECURITY , REGARD BEING HAD TO THE FACT THAT THE COMPETENT INSURANCE INSTITUTIONS TO WHICH THE PERSONS REFERRED TO BY THE PROVISION IN QUESTION WERE AFFILIATED ARE NO LONGER IN EXISTENCE OR ARE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , AND THE FACT THAT THAT LEGISLATION HAS THE PURPOSE OF ALLEVIATING CERTAIN SITUATIONS WHICH AROSE OUT OF EVENTS CONNECTED WITH THE NATIONAL SOCIALIST REGIME AND THE SECOND WORLD WAR , AND FINALLY THAT THE PAYMENT OF THE BENEFITS IN QUESTION IS OF A DISCRETIONARY NATURE WHERE SUCH NATIONALS ARE RESIDING ABROAD .

THIS EXCLUSION FROM THE FIELD OF SOCIAL SECURITY APPLIES TO AN INVALIDITY PENSION FOLLOWING AN ACCIDENT AT WORK IN THE SAME WAY AS IT APPLIES TO AN INVALIDITY PENSION NOT FOLLOWING SUCH AN ACCIDENT .

IN CASE 144/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE LANDESSOZIALGERICHT ( REGIONAL SOCIAL COURT ) BADEN-WURTTEMBERG FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

RENZO TINELLI

AND

BERUFSGENOSSENSCHAFT DER CHEMISCHEN INDUSTRIE ( SOCIAL INSURANCE FUND FOR THE CHEMICAL INDUSTRY )

ON THE COMPATIBILITY WITH ARTICLE 51 OF THE TREATY OF ARTICLE 50 IN CONJUNCTION WITH ANNEX GIA2 OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 ON SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ) AND OF ARTICLE 89 IN CONJUNCTION WITH ANNEX VC1B OF REGULATION ( EEC ) 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 ),

1BY ORDER OF 19 MAY 1978 , RECEIVED AT THE COURT ON 19 JUNE 1978 , THE LANDESSOZIALGERICHT BADEN-WURTTEMBERG REFERRED TO THE COURT , FOR A PRELIMINARY RULING IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY , A QUESTION RELATING TO THE COMPATIBILITY WITH ARTICLE 51 OF THE TREATY OF ARTICLE 50 , IN CONJUNCTION WITH ANNEX GIA2 , OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ), AND OF ARTICLE 89 , IN CONJUNCTION WITH ANNEX VC 1 ( B ), OF REGULATION ( EEC ) 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 ).

2THIS QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION CONCERNING THE RIGHT TO PAYMENT OF AN INVALIDITY PENSION UNDER GERMAN LEGISLATION OF AN ITALIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO , WHEN HE WAS EMPLOYED AT STASSFURT ( AT PRESENT ON THE TERRITORY OF THE GERMAN DEMOCRATIC REPUBLIC ) SUFFERED AN ACCIDENT AT WORK ON 27 SEPTEMBER 1944 .

3IN 1969 THE PERSON CONCERNED MADE AN APPLICATION FOR A PENSION TO THE BERUFSGENOSSENSCHAFT DER CHEMISCHEN INDUSTRIE ( SOCIAL INSURANCE FUND FOR THE CHEMICAL INDUSTRY , HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ), THE DEFENDANT IN THE MAIN ACTION , BUT ON 14 MARCH 1974 WAS REFUSED A PENSION ON THE GROUND THAT AT THAT TIME HE RESIDED OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY .

ON 23 JUNE 1976 HE TRANSFERRED HIS RESIDENCE TO THE FEDERAL REPUBLIC OF GERMANY AND BY DECISION OF 20 DECEMBER 1977 THE FUND GRANTED HIM AN INVALIDITY PENSION CORRESPONDING TO A 30% DISABILITY FOR THE PERIOD SUBSEQUENT TO 23 JUNE 1976 .

HOWEVER , BY THE SAME DECISION , THE FUND REPEATED ITS REFUSAL TO PAY THE PENSION FOR THE PERIOD PRIOR TO 23 JUNE 1976 , RELYING ON ARTICLE 12 OF THE GERMAN FREMDRENTEN- UND AUSLANDSRENTENGESETZ ( LAW ON SUBSTITUTE PENSIONS AND PENSIONS AWARDED TO CERTAIN CATEGORIES OF PERSONS RESIDING ABROAD ) OF 25 FEBRUARY 1960 IN CONJUNCTION WITH ANNEX VC 1 ( B ) TO REGULATION NO 1408/71 .

4WITH A VIEW TO FACILITATING THE ECONOMIC AND SOCIAL INTEGRATION OF REFUGEES AND PERSONS DEPORTED WHO COULD NOT ASSERT THEIR INSURANCE RIGHTS BECAUSE THE COMPETENT INSTITUTIONS WERE NO LONGER IN EXISTENCE OR WERE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , THE FREMDRENTEN- UND AUSLANDSRENTENGESETZ TOOK RESPONSIBILITY UNDER CERTAIN CONDITIONS FOR THE RIGHTS OF PARTIES CONCERNED , WHETHER OR NOT THEY WERE GERMAN NATIONALS .

UNDER THE TERMS OF THAT LAW , AND PARTICULARLY ARTICLE 12 ( 1 ), SUCH PENSIONS ARE TO BE SUSPENDED IF THE PERSON ENTITLED THERETO IS HABITUALLY RESIDENT OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY .

5THE LANDESSOZIALGERICHT BADEN-WURTTEMBERG INQUIRES WHETHER ARTICLE 50 OF REGULATION NO 3 IN CONJUNCTION WITH ANNEX GIA2 THERETO AND ARTICLE 89 OF REGULATION NO 1408/71 IN CONJUNCTION WITH ANNEX VC 1 ( B ) THERETO ARE OR ARE NOT COMPATIBLE WITH ARTICLE 51 OF THE EEC TREATY .

6ANNEX GIA2 TO REGULATION NO 3 READS AS FOLLOWS :

' ' ARTICLE 10 OF THE REGULATION AND THE CORRESPONDING PROVISIONS OF THE BILATERAL AGREEMENTS MENTIONED IN ANNEX D TO THE REGULATION SHALL NOT AFFECT THE PROVISIONS CONCERNING ' FREMDRENTEN ' AND THE PAYMENT OF BENEFITS IN THE CASE OF RESIDENCE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY BY VIRTUE OF WHICH PERIODS COMPLETED OUTSIDE THAT TERRITORY DO NOT GIVE RISE TO PAYMENT OF BENEFITS AS LONG AS THE PERSON ENTITLED RESIDES OUTSIDE THE FEDERAL REPUBLIC OF GERMANY . ' '

ANNEX VC 1 ( B ) TO REGULATION NO 1408/71 READS AS FOLLOWS :

' ' ARTICLE 10 OF THE REGULATION SHALL NOT AFFECT THE PROVISIONS UNDER WHICH ACCIDENTS ( AND OCCUPATIONAL DISEASE ) OCCURRING OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , AND PERIODS COMPLETED OUTSIDE THAT TERRITORY , DO NOT GIVE RISE TO PAYMENT OF BENEFITS , OR ONLY GIVE RISE TO PAYMENT OF BENEFITS UNDER CERTAIN CONDITIONS , WHEN THOSE ENTITLED TO THEM RESIDE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY ' ' .

7IN ITS OBSERVATIONS THE GERMAN GOVERNMENT HAS EMPHASIZED THAT THE PURPOSE OF THE LEGISLATION ON SUBSTITUTE PENSIONS IS TO FACILITATE THE RE-INTEGRATION , FOLLOWING EVENTS CONNECTED WITH THE NATIONAL SOCIALIST REGIME AND THE SECOND WORLD WAR , OF EXILES AND REFUGEES WHO CONTRIBUTE BY THEIR WORK TO RECONSTRUCTION IN THE FEDERAL REPUBLIC OF GERMANY .

SUCH LEGISLATION IS OF A DISCRETIONARY NATURE WHERE SUCH NATIONALS ARE RESIDING ABROAD AND THE BENEFITS IN QUESTION ARE NOT TO BE REGARDED AS BEING IN THE NATURE OF SOCIAL SECURITY .

8IN ITS JUDGMENT OF 31 MARCH 1977 IN CASE 79/76 ( FOSSI , ( 1977 ) ECR 667 ), THE COURT RULED THAT THE PROVISIONS OF REGULATIONS NOS 3 AND 1408/71 WITH REGARD TO EQUALITY OF TREATMENT FOR THE NATIONALS OF ONE MEMBER STATE AND THOSE OF OTHER MEMBER STATES OF THE COMMUNITY DID NOT APPLY TO BENEFITS OF THE KIND REFERRED TO IN THE GERMAN LEGISLATION IN RESPECT OF INSURANCE PERIODS COMPLETED BEFORE 1945 OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY .

SUCH BENEFITS ARE NOT TO BE REGARDED AS COMING WITHIN THE SPHERE OF SOCIAL SECURITY , REGARD BEING HAD TO THE FACT THAT THE COMPETENT INSURANCE INSTITUTIONS TO WHICH THE PERSONS REFERRED TO BY THE PROVISION IN QUESTION WERE AFFILIATED ARE NO LONGER IN EXISTENCE OR ARE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , AND THE FACT THAT THE GERMAN LEGISLATION IN QUESTION HAS THE PURPOSE OF ALLEVIATING CERTAIN SITUATIONS WHICH AROSE OUT OF EVENTS CONNECTED WITH THE NATIONAL SOCIALIST REGIME AND THE SECOND WORLD WAR , AND FINALLY THAT THE PAYMENT OF THE BENEFITS IN QUESTION IS OF A DISCRETIONARY NATURE WHERE SUCH NATIONALS ARE RESIDING ABROAD .

9THE EXCLUSION FROM THE FIELD OF SOCIAL SECURITY WITHIN THE MEANING OF THE TREATY APPLIES TO AN INVALIDITY PENSION FOLLOWING AN ACCIDENT AT WORK IN THE SAME WAY AS IT APPLIES TO AN INVALIDITY PENSION NOT FOLLOWING SUCH AN ACCIDENT SINCE BOTH SUCH BENEFITS CORRESPOND TO THE CRITERIA SET OUT ABOVE JUSTIFYING SUCH AN EXCLUSION .

THAT CONCLUSION IS , MOREOVER , CONFIRMED BY ANNEX CIA1 AND 2 TO REGULATION NO 3 AND BY ANNEX VC 1 ( B ) TO REGULATION NO 1408/71 , WHICH EXCLUDE THE PAYMENT OF BENEFITS ON THE GROUND OF ACCIDENTS AT WORK , SUCH AS THAT IN THIS CASE , AS LONG AS THE PERSON ENTITLED RESIDES OUTSIDE THE FEDERAL REPUBLIC OF GERMANY .

10IN STATING ITS REASONS FOR REFERRING THIS QUESTION TO THE COURT THE LANDESSOZIALGERICHT RAISED THE QUESTION WHETHER THE PROVISIONS AT ISSUE DO NOT CONFLICT WITH A SUPERIOR RULE OF LAW AND WHETHER IN CONSEQUENCE ARTICLE 10 ( 1 ) OF REGULATION NO 3 AND ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 MUST BE APPLIED WITHOUT THE RESTRICTION LAID DOWN IN THE ANNEXES .

ARTICLE 51 OF THE TREATY REQUIRES THE COUNCIL TO ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS IN PARTICULAR BY MAKING ARRANGEMENTS TO SECURE FOR MIGRANT WORKERS THE PAYMENT OF BENEFITS TO PERSONS RESIDENT IN THE TERRITORIES OF THE MEMBER STATES .

RESTRICTIONS IN THE SENSE REFERRED TO IN ARTICLES 50 OF REGULATION NO 3 AND 89 OF REGULATION NO 1408/71 AND THE ANNEXES PREVIOUSLY REFERRED TO ARE NOT PROVIDED FOR IN THAT PROVISION .

11HOWEVER , ARTICLE 51 OF THE TREATY REFERS ONLY TO SOCIAL SECURITY BENEFITS , SO THAT THE COUNCIL IS NOT REQUIRED TO ADOPT PROVISIONS RELATING TO BENEFITS NOT COVERED BY SOCIAL SECURITY .

12THE ANSWER TO BE GIVEN TO THE QUESTION SUBMITTED SHOULD BE THAT CONSIDERATION OF THE PROVISIONS OF ARTICLE 50 OF REGULATION NO 3 IN CONJUNCTION WITH ANNEX GIA THERETO AND OF ARTICLE 89 OF REGULATION NO 1408/71 IN CONJUNCTION WITH ANNEX VC 1 ( B ) THERETO HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THOSE PROVISIONS .

COSTS

13THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COUNCIL AND COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE 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 AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE LANDESSOZIALGERICHT BADEN-WURTTEMBERG BY ORDER OF 19 MAY 1978 , HEREBY RULES :

CONSIDERATION OF THE PROVISIONS OF ARTICLE 50 OF REGULATION NO 3 IN CONJUNCTION WITH ANNEX GIA THERETO AND OF ARTICLE 89 OF REGULATION NO 1408/71 IN CONJUNCTION WITH ANNEX VC 1 ( B ) THERETO HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THOSE PROVISIONS .