Court of Justice 12-07-1979 ECLI:EU:C:1979:200

I — Facts and written procedure

Bruno Brunori, an Italian national, born in Perugia, Italy, on 21 November 1932, had his name entered on 19 September 1975 by the Chamber of Crafts on the Register of Craftsmen as a self-employed master stonemason and sculptor in stone.

On 30 January 1976 the Landesversicherungsanstalt Rheinprovinz [Regional Insurance Institution for the Rhine Province] informed Mr Brunori that he was subject to compulsory insurance under the Gesetz über eine Rentenversicherung der Handwerker — Handwerkerversicherungsgesetz of 8 September 1960. The first sentence of Article 1 (1) of that law provides that where craftsmen whose names are entered on the register of craftsmen have paid contributions in respect of a compulsorily insurable occupation or activity for less than 216 calendar months, they shall be covered by the old-age insurance for employed persons.

Mr Brunori lodged an objection to that decision on 10 February 1976. He claimed in particular that before his name was entered on the register of the Chamber of Crafts he had as an employed person from 1 October 1952 to 31 August 1956, that is for 47 months, paid contributions to the Italian old-age insurance scheme and for 185 months from 29 July 1959 to 30 November 1974 he had made compulsory contributions to the German old-age insurance scheme for employed persons.

He claimed that by the application of the principle of aggregation provided for in Article 45 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) the total of insurance periods completed by him in Italy and Germany exceeds the minimum of 216 months' contribution laid down by the Handwerkerversicherungsgesetz.

Mr Brunori entered paid employment again on 1 September 1976 and his objection to the decision was dismissed by the Landesversicherungsanstalt Rheinprovinz by decision dated 21 July 1977.

Mr Brunori instituted proceedings on 11 August 1977 before the Sozialgericht Köln [Social Court, Cologne], but his application was dismissed by judgment dated 21 July 1978.

Mr Brunori appealed on 20 September 1978 to the Landessozialgericht für das Land Nordrhein Westfalen.

That court by order of its third chamber of 8 December 1978 stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

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 right 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 be added to the German insurance contributions or not?

The order of the Landessozialgericht fur das Land Nordrhein Westfalen was lodged at the Court Registry on 22 December 1978.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged on 13 March 1979 by the Commission of the European Communities, represented by its Legal Adviser, Norbert Koch.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

The Court asked the Landesversicherungsanstalt, however, to give a written answer to two questions and this was done within the prescribed period.

II — Written observations lodged at the Court

The following are the main observations of the Commission of the European Communities:

1. Although the questions put to the Court are based on the material scope of Regulation No 1408/71, the question whether or not there is compulsory insurance necessarily involves also the question of the persons' to whom it applies.

   The decisive factor in this respect is that the regulation applies, according to the combined provisions of Article 2 (1) and Article 1 (a) (i) thereof, to any person who is insured, compulsorily or on an optional continued basis under a social security scheme. The existence of insurance cover (in the present case compulsory insurance) is therefore by reason of the regulation's definition of ‘worker’ a condition for the application of the regulation to the plaintiff in the main action. The latter uses the regulation to show that in his case he is not liable to compulsory insurance and does so by bringing ‘compulsory insurance’ within the material scope of the provisions on aggregation. The fact that the plantiff in the main action was not liable to compulsory insurance would however itself mean that the regulation did not apply to him while he was a craftsman.

   Aggregation by application of the regulation to determine whether there is compulsory insurance as provided for by the Handwerkversicherungsgesetz is conceivable only as long as it does not lead to a total of 216 months. Beyond that figure it could not mean that insurance is no longer compulsory since at one and the same time it would take away the status of insured person and a personal condition of application.

   A regulation which defines the persons to whom it applies in terms of compulsory insurance and thus in terms of the personal scope of national systems of social security cannot at the same time have intended to establish its own rules as to whether or not insurance is compulsory. The definition would become meaningless and the status of insured person would be simultaneously the condition for and the consequence of the application of the regulation.

2. Article 45 (1) of Regulation No 1408/71 requires insurance institutions to take account of insurance periods or periods of residence completed under the legislation of a foreign State if their own legislation makes the acquisition, retention or recovery of rights to benefits conditional upon the completion of such periods.

   Article 51 of the Treaty and the provisions of Regulation No 1408/71 contemplate aggregation of periods only for the acquisition, retention or recovery of the right to benefits and their calculation.

   No claim for benefits is made in the main action. The question is whether the conditions are satisfied whereby insurance ceases to be compulsory, that is whether the condition of 216 months' contribution must be satisfied within the territorial scope of the German Law on the Insurance of Craftsmen or whether it is proper to take into account in this respect insurance periods completed under the legislation of a foreign State.

   It is clear that the wording of Article 45 (1) does not require that periods abroad should be taken into account in determining whether compulsory insurance applies. At the most the question may arise whether that provision applies by way of analogy to this situation. That might be the case if Article 45 were based on a general principle of removing the territorial basis from the other conditions laid down by municipal law, but there is no such principle in Community law — quite the contrary (Article 1 (r) and (s) of Regulation No 1408/71).

   The only principle of Community law relevant in this context is that whereby each Member.. State remains free to determine also the territorial conditions which, within the scope of its powers, it attaches to the recognition of insurance periods as periods completed under its own legislation.

3. No other provision of Regulation No 1408/71 or any other provision of Community social law involves the assimilation of insurance periods completed under foreign legislation to insurance periods completed under the German legislation for the purposes of applying Article 1 (1) of the German Law on the Insurance of Craftsmen. In this respect moreover co-ordination at Community level does not really seem necessary.

   Article 10 (2) of Regulation No 1408/71 leads to no other conclusion.

4. The questions put to the Court should be answered as follows:

   • Article 45 of Regulation No 1408/71 provides for periods completed under the legislation of another Member State to be taken into account solely for the purpose of the acquisition, retention or recovery of rights to benefit. That provision applies neither directly nor by way of analogy to determine whether insurance is compulsory.

   • There is no provision of Community law assimilating Italian insurance contributions to German contributions for the purpose of determining whether compulsory insurance arises under Article 1 (1) of the German Law on the Insurance of Craftsmen.

III — Oral procedure

The Landesversicherungsanstalt Rheinprovinz, the defendant in the main action, represented by Mr Schmidinger, the managing director, and the Commission, represented by its Agent, Norbert. Koch, made oral observations and replied to questions put by the Court at the hearing on 28 June 1979.

The Landesversicherungsanstalt Rheinprovinz argued that the plaintiff in the main action comes within the personal scope of Regulation No 1408/71 in accordance with Articles 1 and 2 thereof, but Article 45 (1) of the regulation does not apply to him in respect of his no longer being subject to compulsory insurance. Article 45 provides for taking account of insurance periods completed in other Member States only for the acquisition, retention or recovery of a right to benefit. Its application by analogy to the question of insurance no longer being compulsory after completion of a certain insurance period is provided for neither by the regulation nor by Articles 2, 7 and 51 of the EEC Treaty. Compulsory insurance depends on the municipal law of each Member State. It is necessary to distinguish between the right to benefits, in respect of which insurance periods completed in another Member State are taken into account, and the question of compulsory insurance, which is determined by German law alone. Liability ceases only after contributions for 216 months have been paid to the German old-age insurance scheme.

The Advocate General delivered his opinion at the hearing on 4 July 1979.

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 für das Land Nordrhein-Westfalen, the decision on costs is a matter for that court.