II —Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
Mr Vermaut merely states that he is satisfied with the exposition of the situation by the Tribunal du Travail and states that “les échanges respectivement anglais et allemand ont payé leurs assurances sociales au Belgique” (sic) [“the United Kingdom and German exchanges respectively have paid their social security to Belgium” (sic)].The Office gives its views first of all on its concept of the interpretation of Article 48 of Regulation No 1408/71. In the opinion of the Office, the observations of the Commission and the opinion of the Advocate General in Case 49/75 Borella [1975] ECR 1461 show that Article 48 (1) must receive a restrictive interpretation if a State wishes to be relieved of its obligations.However, this does not apply, according to the Office, in the case of paragraphs (2) and (3). In this connection the Office maintains that the use of the word “other” before the words “Member States concerned” makes it possible to draw a distinction between the scope of Article 48 (2) and (3), which covers all Member States which may rely on the first paragraph because periods of insurance amounting to less than one year do not confer a right to benefits. In this connection it relies upon the statement of the reasons relating to the articles amending Regulation No 3, submitted by the Commission to the Council on 11 January 1966 (Journal Officiel No 194 of 28 October 1966, p. 3333).Pursuing that line of argument the Office contends that, with regard to the acquisition of the pension right (the theoretical amount) the Belgian State must take into account the periods of insurance completed in other Member States, in accordance with Article 48 (2) but that method of calculation has, however, no effect on the actual benefit to be granted to the claimant. The calculation of an apportionment on the basis of time may take place only if the periods of insurance affect the numerator and denominator of the fraction. Since Mr Vermaut has no valid period of insurance outside Belgium it was mathematically impossible for the Belgian institution to calculate an apportionment and Article 48 (2) is consequently inapplicable.With regard to Article 48 (3) the Office considers that it refers exclusively to the case where the worker has completed periods of less than a year under the legal systems to which he was subject and where he did not acquire any right under such systems on the basis of such periods alone, taken in isolation. Member States which grant benefits on the basis of their internal legislation are accordingly excluded from its scope.The Office in conclusion suggests the following reply to the first question:“Article 48 (3) of Regulation No 1408/71 does not apply to Member States which recognize rights to benefits in accordance with their internal legislation alone”,and furthermore it is of the view that consideration of the second question is not required within the framework of this case.The United Kingdom confines its observations to the second preliminary question, that is to say, to the transfer of contributions between Member States where Article 48 of Regulation No 1408/71 requires a State to take into account periods of insurance of less than a year completed in another Member State. The United Kingdom submits in this connection that there is no provision of Community law which requires contributions properly paid under the legislation of one Member State to be transferred to another Member State. There is no justification of law or policy for such a transfer and above all it is not necessary in order to attain the objective of the free movement of workers laid down in Article 51 of the EEC Treaty. Funhermore, in the absence of an express and clear provision to that effect such an obligation may not be inferred and would in addition in the opinion of the United Kingdom prove unworkable in practice by reason of the shortness of the period of insurance, of the absence of precise information and of the absence of a basis for determining the amount of the contributions to be transferred in such a case.Finally the United Kingdom considers that the article in question is a provision which operates and is intended to operate without the need for financial provision. Moreover the amounts at stake in individual cases, as in this case, cannot be large and would involve disproportionate administrative expense. The only solution consistent with sensible and economical administration is to let the cost of implementing Article 48 lie where it falls, on the basis that taken overall each Member State will neither gain nor lose.The Commission observes first of all that the problems in this case display two aspects:(i) That of taking into account periods completed abroad for supplementing periods of military service or of captivity which form the subject-matter of Article 13 (2) (d) of Regulation No 1408/71, and(ii) that of taking into account periods completed abroad in order to calculate the retirement pension which alone forms the subject-matter of the preliminary questions referred to the Court which are solely concerned with the interpretation of Article 48 of the said regulation.The Commission considers that, with regard to the first aspect, the proper application of Article 13 (2) (d) should have led the Office to take into account the periods of insurance completed in the United Kingdom and in Germany by Mr Vermaut as though they were periods completed under Belgian legislation.With regard to the second aspect the Commission considers that the situation in this case falls under Article 48 (1) and (2) of Regulation No 1408/71. It states that, although paragraph (1) relieves the institutions of Member States of their obligations where short periods of insurance have been completed, paragraph (2) requires the Member States in question (in this case Belgium) to take into account such periods for the purposes of applying Article 46. Paragraph (3) is irrelevant to the solution of the problem. The application of that provision is limited to the specific case where the periods completed by the worker under different legal systems were less than a year and where, through the application of Article 48 (1), all institutions are relieved of their obligations towards the worker.The Commission maintains that the subject-matter and wording itself of the provisions of Article 48 show clearly that the requirement of taking into account periods completed abroad of less than a year does not apply only to the acquisition and retention of rights to benefit but must also apply in the award of such benefits by the States in question, and particularly in the calculation of the theoretical amount in accordance with Article 46 (2). The plaintiff's Belgian retirement pension must be calculated on the basis of the provisions of that last article and of Article 48 of Regulation No 1408/71 read together.With regard to the second question the Commission admits that Regulation No 1408/71 is silent as to the problem of the payment of contributions corresponding to the periods of insurance conferring the right to benefits but it emphasizes that in any event the State responsible for payment may not render the award of benefits which it is obliged to provide under the regulation subject to additional conditions which are not prescribed. Furthermore the State responsible for payment is not entitled to render payment of the part of the benefits corresponding to the periods completed abroad subject to the transfer by the institutions of the Member States where such periods of insurance were completed of the contributions paid to the latter in respect of the said periods. This conclusions is based, in the opinion of the Commission, on the principle of general reciprocity and is in the interests of simplicity.The Commission proposes that the following answers should be given to the questions submitted by the Tribunal du Travail:1 The competent institution must, pursuant to Article 48 (2) of Regulation (EEC) No 1408/71, take into account all periods completed by the worker in order to establish the theoretical amount of benefit in accordance with Article 46 (2), (a), even if the right to a pension was acquired by the claimant solely under the provisions of the national legislation applied by the institution.2. The competent institution is required to consider periods of insurance of less than a year duly completed in the territory of other Member States as fulfilling all the conditions required by its own legislation in order that they may be taken into account in fixing the pension of the claimant.3. The system of coordination established by Regulations (EEC) Nos 1408/71 and 574/72 does not include provisions providing for the transfer of contributions between Member States”.
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