Avis juridique important

Judgment of the Court of 27 January 1981. - Tamara Vigier v Bundesversicherungsanstalt für Angestellte. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Social security - Conditions of affiliation. - Case 70/80. European Court reports 1981 Page 00229

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - SCOPE - DECLARATIONS BY MEMBER STATES - EFFECTS

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 5 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - SCOPE - GERMAN LAW ON THE REPARATION OF INJUSTICE PERPETRATED UNDER NATIONAL SOCIALISM IN THE FIELD OF SOCIAL INSURANCE - INCLUDED

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 1 ( J ) AND ART . 4 ( 4 ))

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 9 ( 2 ))

1 . THE FACT THAT A DOMESTIC LAW IS NOT MENTIONED IN THE DECLARATION MADE BY A MEMBER STATE PURSUANT TO ARTICLE 5 OF REGULATION NO 1408/71 DOES NOT MEAN THAT THAT LAW MUST BE DEEMED TO LIE OUTSIDE THE SCOPE OF THE REGULATION .

2 . LEGISLATION , SUCH AS THE GERMAN LAW ON THE REPARATION OF INJUSTICE PERPETRATED UNDER NATIONAL SOCIALISM IN THE FIELD OF SOCIAL INSURANCE , WHICH FORMS PART OF THE BODY OF LAW GOVERNING THE SOCIAL INSURANCE OF WORKERS IN A MEMBER STATE AND WHICH MAKES NO PROVISION FOR A DISCRETIONARY ASSESSMENT OF THE PERSONAL SITUATION AND NEEDS OF THE INDIVIDUAL CONCERNED , COMES WITHIN THE SCOPE OF REGULATION NO 1408/71 AND IS NOT EXCLUDED BY VIRTUE OF THE PROVISIONS OF ARTICLE 4 ( 4 ) OF THAT REGULATION .

3 . WHERE NATIONAL LEGISLATION MAKES AFFILIATION TO A SOCIAL SECURITY SCHEME CONDITIONAL ON PRIOR AFFILIATION BY THE PERSON CONCERNED TO THE NATIONAL SOCIAL SECURITY SCHEME , REGULATION NO 1408/71 DOES NOT COMPEL MEMBER STATES TO TREAT AS EQUIVALENT INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE AND THOSE WHICH MUST HAVE BEEN COMPLETED PREVIOUSLY ON NATIONAL TERRITORY .

CONSEQUENTLY , ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 MUST BE CONSTRUED AS MEANING THAT IT DOES NOT REQUIRE A SOCIAL INSURANCE INSTITUTION OF A MEMBER STATE TO TAKE INTO ACCOUNT PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE WHEN THE WORKER CONCERNED HAS NEVER PAID , IN THE FIRST MEMBER STATE , THE CONTRIBUTION REQUIRED BY LAW IN ORDER TO CREATE HIS STATUS AS AN INSURED PERSON UNDER THE LEGISLATION OF THAT MEMBER STATE .

IN CASE 70/80

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

TAMARA VIGIER

AND

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

ON THE INTERPRETATION OF THE COMMUNITY RULES APPLICABLE IN THE FIELD OF SOCIAL SECURITY ,

1 BY AN ORDER DATED 19 DECEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 4 MARCH 1980 , THE BUNDESSOZIALGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION 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 THOSE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF A DISPUTE BETWEEN THE PLAINTIFF IN THE MAIN ACTION , MRS TAMARA VIGIER , WHO WAS BORN IN GERMANY IN 1922 BUT AT PRESENT RESIDES IN FRANCE AND POSSESSES FRENCH NATIONALITY , AND THE BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE , A GERMAN SOCIAL INSURANCE INSTITUTION , THE DEFENDANT IN THE MAIN ACTION .

3 THE PLAINTIFF IN THE MAIN ACTION LEFT GERMANY IN 1933 AT THE AGE OF 10 . SHE IS A VICTIM OF PERSECUTION WITHIN THE MEANING OF ARTICLE 1 OF THE BUNDESENTSCHADIGUNGSGESETZ ( FEDERAL COMPENSATION LAW ), AND AS SUCH RECEIVED COMPENSATION FOR LOSS OF EDUCATIONAL OPPORTUNITIES . SHE WORKS IN FRANCE AND IS AFFILIATED TO THE FRENCH SOCIAL SECURITY SCHEME .

4 ARTICLE 10 A OF THE GESETZ ZUR REGELUNG DER WIEDERGUTMACHUNG NATIONALSOZIALISTISCHEN UNRECHTS IN DER SOZIALVERSICHERUNG ( ' ' THE REPARATION LAW ' ' ) ALLOWS , SUBJECT TO CERTAIN CONDITIONS AND IN RESPECT OF CERTAIN PERIODS NOT EXTENDING BEYOND 31 DECEMBER 1955 , THE RETROACTIVE PAYMENT OF CONTRIBUTIONS BY VICTIMS OF PERSECUTION WHO HAVE COMPLETED AN INSURANCE PERIOD OF AT LEAST 60 CALENDAR MONTHS AND WHO , BY A DECISION WHICH IS FINAL OR WHICH CAN NO LONGER BE CHALLENGED , HAVE BEEN AWARDED COMPENSATION UNDER ARTICLE 116 OR ARTICLE 118 OF THE FEDERAL COMPENSATION LAW FOR LOSS OF EDUCATIONAL OPPORTUNITIES .

5 ARTICLE 1 ( 1 ) OF THE REPARATION LAW PROVIDES THAT IT APPLIES TO INSURED PERSONS WHO ARE VICTIMS OF PERSECUTION WITHIN THE MEANING OF THE FEDERAL COMPENSATION LAW AND HAVE SUFFERED PREJUDICE IN THE FIELD OF SOCIAL INSURANCE AS A RESULT OF THE PERSECUTION .

6 FROM THE ORDER MAKING THE REFERENCE FOR A PRELIMINARY RULING IT APPEARS THAT IN ORDER TO HAVE THE STATUS OF INSURED PERSON UNDER THAT PROVISION THE PERSON CONCERNED MUST HAVE PAID AT LEAST ONE CONTRIBUTION TO THE COMPETENT GERMAN INSTITUTION .

7 IN RELIANCE ON THE AFORESAID ARTICLE 10 A , MRS VIGIER APPLIED TO THE DEFENDANT IN THE MAIN ACTION IN DECEMBER 1975 FOR AUTHORIZATION TO MAKE RETROACTIVE AND VOLUNTARY PAYMENT OF CONTRIBUTIONS TO INVALIDITY AND OLD-AGE INSURANCE . THAT APPLICATION WAS DISMISSED ON THE GROUND THAT , AS SHE DID NOT HAVE THE STATUS OF INSURED PERSON , MRS VIGIER DID NOT SATISFY THE CONDITIONS LAID DOWN BY THE REPARATION LAW FOR THE RETROACTIVE PAYMENT OF CONTRIBUTIONS .

8 AFTER THE FAILURE OF HER ACTION IN THE SOZIALGERICHT BERLIN AND HER APPEAL TO THE LANDESSOZIALGERICHT BERLIN , THE PLAINTIFF IN THE MAIN ACTION APPEALED ON A POINT OF LAW TO THE BUNDESSOZIALGERICHT . HER MAIN ARGUMENT WAS THAT THE JUDGMENT APPEALED AGAINST RESTED ON AN INCORRECT APPLICATION OF ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL . SHE SUBMITTED THAT BY VIRTUE OF THAT PROVISION INSURANCE PERIODS WHICH SHE HAD COMPLETED IN FRANCE SHOULD BE TAKEN INTO ACCOUNT AS IF THEY HAD BEEN COMPLETED UNDER THE GERMAN LEGISLATION .

9 IN THOSE CIRCUMSTANCES THE BUNDESSOZIALGERICHT HAS SUBMITTED THE FOLLOWING QUESTIONS :

1 . MUST ARTICLE 4 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 , WHEREBY THAT REGULATION APPLIES TO LEGISLATION CONCERNING ' ' BRANCHES OF SOCIAL SECURITY ' ' , BE CONSTRUED AS MEANING THAT ENTITLEMENT TO PAY CONTRIBUTIONS RETROACTIVELY UNDER THE LAW ON THE REPARATION OF INJUSTICE PERPETRATED UNDER NATIONAL SOCIALISM IN THE FIELD OF SOCIAL INSURANCE ( REPARATION LAW ) OF 22 DECEMBER 1970 , IN THE VERSION OF 27 JUNE 1977 ( BUNDESGESETZBLATT 1970 I , P . 1846 AND BUNDESGESETZBLATT I 1977 , P . 1040 ), COMES WITHIN THE SCOPE OF THAT REGULATION , IN SO FAR AS THE VICTIMS OF PERSECUTION MUST BE REGARDED AS WORKERS WITHIN THE MEANING OF ARTICLE 1 ( A ) OF REGULATION ( EEC ) NO 1408/71?

IF THE ANSWER IS IN THE AFFIRMATIVE , DOES THAT SPECIAL RIGHT TO PAY CONTRIBUTIONS RETROACTIVELY FORM PART OF A BENEFIT SCHEME WITHIN THE MEANING OF ARTICLE 4 ( 4 ) OF REGULATION ( EEC ) NO 1408/71 , THUS EXCLUDING THE APPLICABILITY OF THE REGULATION?

2.IF REGULATION ( EEC ) NO 1408/71 IS APPLICABLE , DOES ARTICLE 9 ( 2 ) THEREOF APPLY TO THE INSURANCE PERIOD OF 60 MONTHS REQUIRED UNDER ARTICLE 10 A OF THE REPARATION LAW IN SO FAR AS A PERSON ' S STATUS AS AN INSURED PERSON ( AND THUS AS A VICTIM OF PERSECUTION ) UNDER ARTICLE 1 ( 1 ) OF THE REPARATION LAW IS THEREBY CREATED?

FIRST QUESTION

10 IN ITS ORDER THE BUNDESSOZIALGERICHT HAS EXPRESSED DOUBTS AS TO WHETHER THE SCHEME FOR THE REPARATION OF INJUSTICE PERPETRATED BY THE NATIONAL SOCIALIST REGIME IN THE FIELD OF GERMAN SOCIAL INSURANCE COMES WITHIN THE SCOPE OF REGULATION NO 1408/71 AND WHETHER THE EFFECT OF ARTICLE 9 ( 2 ) OF THAT REGULATION IS THAT IN THE CASE OF NATIONALS OF MEMBER STATES OF THE COMMUNITY WHO RESIDE OUTSIDE THE FEDERAL REPUBLIC OF GERMANY CONTRIBUTIONS PAID IN OTHER MEMBER STATES MAY BE SUBSTITUTED FOR THE ENTIRE PERIOD OF 60 MONTHS OF PRIOR INSURANCE REQUIRED BY ARTICLE 10 A OF THE REPARATION LAW , INCLUDING THEREFORE THE CONTRIBUTION REQUIRED BY ARTICLE 1 ( 1 ) OF THAT LAW IN ORDER TO HAVE THE STATUS OF INSURED PERSON ( WHICH CONTRIBUTION MUST , UNDER GERMAN LAW , BE PAID TO THE NATIONAL INVALIDITY AND OLD-AGE INSURANCE SCHEME ).

11 ACCORDING TO THE ORDER MAKING THE REFERENCE , THE PROVISIONS OF THE REPARATION LAW GOVERN LEGAL RELATIONSHIPS WHICH ARE INDEED CONNECTED WITH THE TYPES OF BENEFIT REFERRED TO IN ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 BUT BY REASON OF THEIR SPECIAL PURPOSE ( THE COMPENSATION OF A PARTICULAR CATEGORY OF PERSONS WHO HAVE SUFFERED PERSECUTION ) IT IS NOT CERTAIN THAT THEY MUST BE COUNTED AMONGST THE PROVISIONS ADOPTED IN ORDER TO DEAL WITH THOSE TYPES OF BENEFIT .

12 THE DEFENDANT IN THE MAIN ACTION SUBMITS THAT BY VIRTUE OF THE RULES LAID DOWN THEREIN THE PROVISIONS OF THE REPARATION LAW MUST BE REGARDED AS LEGISLATION WITHIN THE MEANING OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71 , SINCE THEY AMEND OR SUPPLEMENT INTER ALIA CERTAIN PROVISIONS OF THE REICHSVERSICHERUNGSORDNUNG ( INSURANCE CODE ), THE ANGESTELLTENVERSICHERUNGSGESETZ ( CLERICAL STAFF INSURANCE LAW ) AND THE REICHSKNAPPSCHAFTSGESETZ ( LAW ON INVALIDITY AND OLD-AGE INSURANCE FOR MINERS ). ACCORDING TO THE DECLARATION MADE BY THE FEDERAL REPUBLIC OF GERMANY PURSUANT TO ARTICLE 5 OF THE REGULATION THOSE LAWS COME WITHIN THE SCOPE OF THE REGULATION .

13 FURTHER , IT IS CLEAR THAT BY REASON OF ITS SUBJECT-MATTER THE REPARATION LAW CANNOT BE CLASSED AS LEGISLATION DEALING WITH SOCIAL ASSISTANCE OR WITH THE SPECIAL SCHEMES REFERRED TO IN ARTICLE 4 ( 4 ) OF THE REGULATION . THE PROVISIONS OF THE REPARATION LAW BESTOW UPON PERSONS CONCERNED - IF THEY SATISFY THE CONDITIONS LAID DOWN THEREIN - RIGHTS WHICH ARE NOT DEPENDENT ON ANY DISCRETIONARY APPRAISAL OF THEIR PERSONAL SITUATION AND NEEDS . THUS IT IS A QUESTION OF LEGAL PROVISIONS FALLING WITHIN THE SCOPE OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND ARTICLE 1 ( J ) OF THE REGULATION .

14 THE COURT CONSIDERS THIS VIEW TO BE CORRECT . IT IS CLEAR FROM THE PAPERS IN THE CASE THAT ALTHOUGH THE REPARATION LAW HAS THE APPEARANCE OF A LEX SPECIALIS IT DOES NOT SEEK TO ESTABLISH AN INDEPENDENT SCHEME OF COMPENSATION . THE PROVISIONS OF THE REPARATION LAW MERELY CONSTITUTE RULES SUPPLEMENTING OR ADJUSTING THE GENERAL PROVISIONS IN THE FIELD OF SOCIAL INSURANCE .

16 LEGISLATION , SUCH AS THE REPARATION LAW , WHICH FORMS PART OF THE BODY OF LAW GOVERNING THE SOCIAL INSURANCE OF WORKERS IN A MEMBER STATE AND WHICH MAKES NO PROVISION FOR A DISCRETIONARY ASSESSMENT OF THE PERSONAL SITUATION AND NEEDS OF THE INDIVIDUAL CONCERNED , COMES WITHIN THE SCOPE OF REGULATION NO 1408/71 AND IS NOT EXCLUDED BY VIRTUE OF THE PROVISIONS OF ARTICLE 4 ( 4 ) OF THAT REGULATION .

SECOND QUESTION

17 ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT WHERE , UNDER THE LEGISLATION OF A MEMBER STATE , ADMISSION TO VOLUNTARY OR OPTIONAL CONTINUED INSURANCE IS CONDITIONAL UPON COMPLETION OF PERIODS OF INSURANCE , THE PERIODS OF INSURANCE OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE SHALL BE TAKEN INTO ACCOUNT , TO THE EXTENT REQUIRED , AS IF THEY WERE COMPLETED UNDER THE LEGISLATION OF THE FIRST STATE .

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS 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 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 19 DECEMBER 1980 , HEREBY RULES :

1 . LEGISLATION , SUCH AS THE GERMAN REPARATION LAW , WHICH FORMS PART OF THE BODY OF LAW GOVERNING THE SOCIAL INSURANCE OF WORKERS IN A MEMBER STATE AND WHICH MAKES NO PROVISION FOR A DISCRETIONARY ASSESSMENT OF THE PERSONAL SITUATION AND NEEDS OF THE INDIVIDUAL CONCERNED , COMES WITHIN THE SCOPE OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL AND IS NOT EXCLUDED BY VIRTUE OF ARTICLE 4 ( 4 ) OF THAT REGULATION .

2 . ARTICLE 9 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 MUST BE CONSTRUED AS MEANING THAT IT DOES NOT REQUIRE A SOCIAL INSURANCE INSTITUTION OF A MEMBER STATE TO TAKE INTO ACCOUNT PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE WHEN THE WORKER CONCERNED HAS NEVER PAID , IN THE FIRST MEMBER STATE , THE CONTRIBUTION REQUIRED BY LAW IN ORDER TO ESTABLISH HIS STATUS AS AN INSURED PERSON UNDER THE LEGISLATION OF THAT MEMBER STATE .