Manfred Sehrer v Bundesknappschaft.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Puissochet
• ECLI: ECLI:EU:C:2000:71
• Date: 08 February 2000
• Docket Number: C-302/98
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61998C0302

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 8 February 2000. - Manfred Sehrer v Bundesknappschaft. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Freedom of movement for workers - Social security - Sickness insurance contributions levied by a Member State on supplementary retirement pensions payable under an agreement in another Member State - Basis for calculating contributions - Taking into account of contributions already deducted in that other Member State. - Case C-302/98.

European Court reports 2000 Page I-04585

Opinion of the Advocate-General

1. By the question which it has referred to the Court for a preliminary ruling, the Bundessozialgericht (Federal Social Court), Germany, wishes to know whether Community law and, in particular, the provisions enshrining the principle of freedom of movement for workers, preclude the gross amount of the pension granted to a migrant worker under a collective agreement from being subject to sickness insurance contributions both in the State in which it is provided, which does not recognise his entitlement to benefits, and in the Member State in which he resides and to whose social security laws he is subject.

I. The facts in the main proceedings

2. Mr Sehrer, who is the plaintiff in the main proceedings, was born in 1924. Since 1984, when he reached the age of sixty, he has been receiving a retirement pension from the Bundesknappschaft (Federal Insurance Fund for Miners), the defendant social security institution. He lives in Germany and is insured under the Krankenversicherung der Rentner (Pensioners' Sickness Insurance Scheme). He also receives in Germany, from the Landesversicherungsanstalt für das Saarland (Regional Insurance Institution for the Saarland), a supplementary pension under the metalworkers' insurance scheme.

3. In France, the Caisse de retraites complémentaires des ouvriers mineurs (Mineworkers' Supplementary Pension Fund) pays him a retirement pension under a pension scheme established on the basis of a collective agreement.

The gross amount of the French supplementary pension, which, varied during the period at issue - from December 1988 to September 1993 - from FRF 2 384.19 to FRF 2 538.45 per quarter, is subject to a deduction of 2.4% by way of contribution to the sickness insurance scheme. The amount of the contribution varied between FRF 57.22 and FRF 60.92 per quarter during the period in question. This solidarity contribution does not give the plaintiff any entitlement to benefits.

4. When the defendant social security institution learned that Mr Sehrer was receiving the French pension, it demanded payment of the German sickness insurance contributions, which it calculated on the basis of the gross amount of the French pension, without deducting the contributions already paid in France. The sum demanded in respect of arrears of contributions is DEM 1 005.67.

5. The plaintiff's administrative appeal was unsuccessful. The legal action he brought before the Sozialgericht für das Saarland (Social Court of the Saarland) was successful in part. The court annulled that part of the defendant institution's decisions in which it held that the gross amount of the French pension, including the amount deducted by way of contribution to the French sickness insurance scheme, was subject to contributions in Germany. Otherwise it dismissed the action.

6. The Landessozialgericht für das Saarland (Regional Social Court of the Saarland) dismissed the appeal brought by the defendant institution, which then filed an application for Revision (which, in Germany, is an appeal on a point of law) before the Bundessozialgericht.

The matter at issue in those proceedings is whether the part of the supplementary pension deducted by way of contribution to the French sickness insurance scheme should be included in the calculation of the contribution to the pensioners' sickness insurance scheme in Germany, as the defendant institution claims it should, for the periods from December 1988 to September 1993.

II. The question

7. The Bundessozialgericht, the national court hearing the case, is unsure whether the double burden of contributions borne by a migrant worker like Mr Sehrer infringes the principle of equal treatment. If that is the case, the national court wonders whether the infringement is justified on objective grounds.

8. In order to clarify those points, it decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

Do Articles 6 and 48 to 51 of the Treaty establishing the European Community and Article 3 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community preclude national rules under which the whole of a supplementary French pension paid on the basis of a collective agreement is subject to contributions both to the French sickness insurance scheme and to the German sickness insurance scheme for pensioners?

III. Community law

9. Article 48 of the EC Treaty (now, after amendment, Article 39 EC) provides:

[...]

2. Such freedom of movement [for workers within the Community] shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

10. Under the first and second subparagraphs of Article 1(j) of Regulation No 1408/71, as amended by Regulation (EEC) No 1247/92:

"legislation" means all the laws, regulations and other provisions and all other present or future implementing measures, of each Member State, relating to the branches and schemes of social security covered by Article 4(1) and (2) or those special non-contributory benefits covered by Article 4(2a).

This term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. [...]

In certain circumstances, this restriction may be lifted by a declaration by the Member State concerned, which must be notified and published in accordance with the provisions of Article 97 of Regulation No 1408/71.

11. Article 13(2) of Regulation No 1408/71, as amended by Regulation (EEC)

No 2195/91 (hereinafter Regulation No 2195/91) provides:

[...]

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the foregoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

12. With regard to the contributions payable by pensioners, Article 33 of Regulation No 1408/71, as amended by Regulation (EEC) No 2332/92, provides:

1. The institution responsible for payment of a pension, and belonging to a Member State whose legislation provides for deductions from pensions in respect of contributions payable by a pensioner to cover benefits in kind, shall be authorised to make such deductions from the pension payable by such institution, calculated in accordance with the legislation concerned, to the extent that the cost of the benefits in kind under Articles 27, 28, 28a, 29, 31 and 32 are to be borne by an institution of the said Member State.

2. Where, in the...