62000J0290
Judgment of the Court (Fifth
Chamber) of 18 April 2002. - Johann Franz Duchon v Pensionsversicherungsanstalt
der Angestellten. - Reference for a preliminary ruling: Oberster Gerichtshof -
Austria. - Social security for migrant workers - Article 48 and Article 51 of
the EC Treaty (now, after amendment, Article 39 and Article 42 EC) - Article 9a
and 94 of Regulation (
European Court reports 2002 Page I-03567
Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
1. Social
security for migrant workers - Community rules - Persons covered - National of
a Member State claiming, following an accident at work which occurred in
another Member State before accession of the relevant State to the European
Union, an occupational disability pension - Included
(Council
Regulation No 1408/71, Art. 94(2) and (3))
2. Social
security for migrant workers - Equal treatment - Conditions governing
acquisition of a right to an occupational disability pension resulting from an
accident at work - National measure providing for an exception to the
requirement of a qualifying period only in the event that the victim, at the
time of the accident, had been insured under the legislation of the State
concerned - Not permissible
(EC Treaty,
Art. 48(2) (now, after amendment, Art. 39(2) EC); Council Regulation No
1408/71, Art. 94(3))
3. Social
security for migrant workers - Equal treatment - National measure setting a
reference period for acquisition of the right to a pension - Possibility of
extending the reference period - Exclusion of that possibility when the facts
or circumstances giving entitlement, such as the payment of accident benefits,
occur in another Member State - Not permissible - Invalidity of Article 9(a) of
Regulation No 1408/71
(EC Treaty,
Arts 48(2) and 51 (now, after amendment, Arts 39(2) and 42 EC); Council
Regulation No 1408/71, Art. 9(a))
1. The situation of a person who is a national of a
Member State, who, before the accession of that State to the European Union,
was employed in another Member State where he was the victim of an accident at
work, and who, after the accession of his home State, applies to the
authorities in that State for an occupational disability pension as a result of
that accident falls within the scope of application of Regulation No 1408/71,
as amended and updated by Regulation No 118/97.
It follows from Article 94(2) of the Regulation
that a Member State is not entitled to refuse to take into account periods of
insurance completed in the territory of another Member State, for the purposes
of establishment of a retirement pension, for the sole reason that they were
completed before the entry into force of the Regulation in its regard. There is
no doubt that an accident at work which occurred on the territory of a Member
State before the entry into force of Regulation No 1408/71 in another Member
State under whose legislation occupational disability benefits as a result of
that accident are claimed, constitutes a contingency within the meaning of
Article 94(3) of that regulation.
( see paras 23, 25-26, operative part 1 )
2. Article 94(3) of Regulation No 1408/71, as
amended and updated by Regulation No 118/97, read in conjunction with Article
48(2) of the Treaty (now, after amendment, Article 39(2) EC), must be
interpreted as precluding a national measure which provides an exception to the
requirement of a qualifying period as a condition for the acquisition of the
right to an occupational disability pension where that disability is the result
of an accident at work - which occurred, in the case in point, before the date
of entry into force of that regulation in the Member State concerned - only in
the event that the victim had been insured compulsorily or privately at the
time of the accident under the legislation of that State, to the exclusion of
the legislation of all other Member States.
( see para. 36, operative part 2 )
3. Articles 48(2) and 51 of the Treaty (now, after
amendment, Articles 39(2) and 42 EC) must be interpreted as meaning that they
preclude a national provision which takes into account, for the purposes of
prolongation of the reference period during which the qualifying period for the
acquisition of the right to a pension must have been completed, only those
periods during which the insured person received an occupational disability
pension under a national accident insurance scheme, without providing for the
possibility of a prolongation of that period where a benefit of such a kind was
paid under the legislation of another Member State. Even if, formally,
legislation of that type applies without distinction as to nationality to all
Community workers, who may accordingly, under the conditions which it lays
down, benefit from the prolongation of the reference period, such legislation,
in so far as it makes no provision for the possibility of prolongation of the
reference period where events or circumstances, such as the payment of accident
benefits, corresponding to those which enable the period to be prolonged occur
in another Member State, is liable to have a much greater adverse effect on
migrant workers, since they above all, particularly in the case of invalidity,
tend to return to their countries of origin.
For the same reasons, Article 9a of Regulation
1408/71, as amended and updated by Regulation No 118/97, must be declared
invalid in so far as it expressly excludes the possibility to take account, for
the purposes of the extension of the reference period under the law of a Member
State, periods in the course of which industrial accident allowances have been
paid under the law of another Member State.
( see paras 38-40, 3-4 )
In Case C-290/00,
REFERENCE to the Court under Article 234 EC by the
Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings
pending before that court between
Johann Franz Duchon
and
Pensionsversicherungsanstalt der Angestellten,
on the interpretation of Articles 48 and 51 EC
Treaty (now, after amendment, Articles 39 EC and 42 EC), and on the
interpretation and validity of Articles 9a and 94 of Council Regulation (
THE COURT (Fifth Chamber),
composed of: P. Jann, President of the Chamber, S.
von Bahr, and M. Wathelet (Rapporteur), Judges,
Advocate General: F.G. Jacobs,
Registrar: R. Grass,
after considering the written observations
submitted on behalf of:
- Duchon, by A. Hawel and E. Eypeltauer,
Rechtsanwälte,
- the Austrian Government, by C. Pesendorfer,
acting as Agent,
- Commission of the European Communities, by W.
Bogensberger, acting as Agent,
having regard to the report of the
Judge-Rapporteur,
after hearing the Opinion of the Advocate General
at the sitting on 22 November 2001,
gives the following
Judgment
1 By order of 27 June 2000, received at the Court
on 24 July 2000, the Oberster Gerichtshof (Supreme Court) (Austria) referred to
the Court for a preliminary ruling under Article 234 EC three questions on the
interpretation of Articles 48 and 51 of the EC Treaty (now, after amendment,
Articles 39 EC and 42 EC) and of Council Regulation (
2 Those questions have been raised in proceedings
between Mr Duchon, who was the victim of an industrial accident in 1968, while
he was working in Germany, and the Pensionsversicherungsanstalt der
Angestellten (Salaried Employees' Pension Insurance Institution) concerning his
entitlement to an occupational disability pension under Austrian law with
effect from 1 January 1998.
Legal framework
Community provisions
3 Regulation No 1408/71 entered into force in the
Republic of Austria on 1 January 1994 by virtue of the Agreement on the European
Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3, hereinafter the EEA Agreement).
As from 1 January 1995, it applied to the Republic of Austria as a Member State
of the European Union.
4 Article 9a of Regulation No 1408/71, headed
Prolongation of the reference period, provides:
Where, under the legislation of a Member State,
recognition of entitlement to a benefit is conditional upon completion of a
minimum period of insurance during a specific period preceding the contingency
insured against (reference period) and where the aforementioned legislation
provides that the periods during which the benefits have been granted under the
legislation of that Member State or periods devoted to the upbringing of
children in the territory of that Member State shall give rise to prolongation
of the reference period, periods during which invalidity pensions or old-age
pensions or sickness benefits, unemployment benefits or benefits for accidents
at work (except for pensions) have been awarded under the legislation of another
Member State and periods devoted to the upbringing of children in the territory
of another Member State shall likewise give rise to prolongation of the
aforesaid reference period.
5 Article 61 of Regulation No 1408/71 contains
special provisions in order to take account of the special features of certain
national laws on insurance against accidents at work or occupational diseases.
Paragraphs 5 and 6 of Article 61 are worded as follows:
5. Where the legislation of a Member State provides
expressly or by implication that accidents at work or occupational diseases
which have occurred or have been confirmed previously shall be taken into
consideration in order to assess the degree of incapacity, to establish a right
to any benefit, or to determine the amount of benefit, the competent
institution of that Member State shall also take into consideration accidents
at work or occupational diseases which have occurred or have been confirmed
previously under the legislation of another Member State as if they had occurred
or had been confirmed under the legislation which it administers.
6. Where the legislation of a Member State provides
expressly or by implication that accidents at work or occupational diseases
which have occurred or have been confirmed subsequently shall be taken into
consideration in order to assess the degree of incapacity, to establish the
right to any benefit, or to determine the amount of such benefit, the competent
institution of that Member State shall also take into consideration accidents at
work or occupational diseases which have occurred or have been confirmed
subsequently under the legislation of another Member State, as if they had
occurred or had been confirmed under the legislation which it administers, but
only where:
(1) no compensation is due in respect of the
accident at work or the occupational disease which had occurred or had been
confirmed previously under the legislation which it administers; and
(2) no compensation is due by virtue of the
legislation of the other Member State under which the accident at work or the
occupational disease occurred or was confirmed subsequently, account having
been taken of the provisions of paragraph 5, in respect of that accident at
work or that occupational disease.
6 Under the heading Transition provisions for
employed persons, Article 94(1) to (3) of Regulation No 1408/71 provides:
1. No right shall be acquired under this Regulation
in respect of a period prior to 1 October 1972 or to the date of its
application in the territory of the Member State concerned or in a part of the
territory of that State.
2. All periods of insurance and, where appropriate,
all periods of employment or residence completed under the legislation of a
Member State before 1 October 1972 or before the date of its application in the
territory of that Member State or in a part of the territory of that State
shall be taken into consideration for the determination of rights acquired
under the provisions of this Regulation.
3. Subject to the provisions of paragraph 1, a right
shall be acquired under this Regulation even though it relates to a contingency
which materialised prior to 1 October 1972 or to the date of its application in
the territory of the Member State concerned or in a part of the territory of
that State.
National legislation
7 Under Austrian law, employed persons are entitled
to an occupational disability pension if, in addition to the specific condition
of a reduced capacity for work, they satisfy the general condition of
completion of the qualifying period (Wartezeit) [Paragraph 235(1) Allgemeines
Sozialversicherungsgesetz (General Law on Social Security, the ASVG)] which
corresponds to the number of months during which the claimant has contributed
to the pension insurance scheme (Versicherungszeiten) during a certain period
(the reference period) prior to the date from which the pension entitlement is
to run (Stichtag).
8 Before the age of 50, the qualifying period is 60
months which must be completed during the 120 calendar months (the reference
period) preceding the date of the application for the pension, if that falls on
the first day of the month, or the first day of the month following the date on
which the application was made (Paragraphs 223(2), 236(1)(1)(a) and (2)(1) of
the ASVG).
9 Under Paragraph 235(3)(a) of the ASVG, the
qualifying period required is waived when the circumstances giving rise to the
acquisition of the right to a pension are the result of an accident at work or
occupational disease suffered by a person covered by compulsory insurance under
the pension insurance scheme under the ASVG or another Austrian federal law, or
to a person covered by private insurance under Paragraph 19(a) of the ASVG.
10 Furthermore, under Paragraph 236(3) of the ASVG,
the required reference period may be prolonged by neutral months. Under
Paragraph 234(1) of the ASVG:
The following periods, which are not periods of
insurance, shall be regarded as being neutral:
...
2. Periods during which the insured person had an
entitlement, awarded by notification, to
...
(b) a disability pension stemming from statutory
accident insurance on account of earning capacity reduced by at least 50%;
...
The main proceedings and the questions referred for
a preliminary ruling
11 Mr Duchon, an Austrian national, born on 18
January 1949, was the victim of an industrial accident on 8 September 1968
while he was working as a trainee in Germany. Since that date, he has been in
receipt of an industrial accident benefit from the competent German authorities
corresponding to a reduced capacity for work of 50%.
12 An initial application by Mr Duchon for an
Austrian occupational disability pension with effect from 1 January 1994 was
rejected by the Pensionsversicherungsanstalt der Angestellten. On 15 April
1997, his appeal against that decision was also rejected by the Oberster
Gerichtshof, on the grounds that he had not completed the qualifying period of
60 months during the reference period of 120 months, that he was not covered by
the exceptions laid down in Paragraphs 235(3)(a), 236(3) and 234(1)(2)(b) of
the ASVG and that as the events giving rise to entitlement to the disability
pension occurred before 1 January 1994, he also could not rely on the
Community-law right of freedom of movement for workers.
13 On 22 December 1997, Mr Duchon made a fresh
application for an occupational disability pension, but this time with effect
from 1 January 1998. By decision of 11 August 1998, that application was also
rejected for the same reason as the previous application, namely that the
claimant had not completed the qualifying period. On 29 September 1999 the
appeal against that decision was dismissed by the Landesgericht (Regional
Court), Linz (Austria) on account inter alia of the force of res judicata
attaching to the judgment of the Oberster Gerichtshof of 15 April 1999 which
had decided, as between the same parties, the issue concerning the taking into
consideration of insurance periods completed in Germany following Mr Duchon's
accident in that Member State. According to the Landesgericht, the only issue
which could still be examined was whether, given the insurance periods
completed in Austria, the claimant in the main proceedings satisfied, in
accordance with the applicable provisions of national law, the requirements
relating to the qualifying period. It held that this was not so in the case
before it. That judgment was confirmed on appeal by judgment of 11 February
2000 of the Oberlandesgericht (Higher Regional Court), Linz (Austria), and Mr
Duchon then brought an appeal on a point of law (Revision) before the Oberster
Gerichtshof.
14 The Oberster Gerichtshof questions the validity
of the view according to which Regulation No 1408/71 is not, by virtue of
Article 94 thereof, applicable to events which occurred before the accession of
the Republic of Austria to the EEA Agreement and then to the European Union.
15 On one hand, if it was established that the
incapacity for work in respect of which Mr Duchon claims an Austrian pension
was the result of an accident at work in 1968, in Germany, the Oberster
Gerichtshof asks whether, for the purposes of the application of Paragraph
235(3)(a) of the ASVG, that accident is a contingency within the meaning of
Article 94(3) of Regulation No 1408/71. If that were the case, the regulation
would apply to the acquisition of the right to a pension by the claimant in the
main proceedings, even though the case concerns a contingency which
materialised in the past, albeit that the right itself could only take effect
from the date of entry into force of the regulation in the Republic of Austria,
in accordance with Article 94(1).
16 On the other hand, should it transpire that the
incapacity for work from which the claimant in the main proceedings suffers is
not the result of the accident in 1968, the Oberster Gerichtshof asks whether
Community law requires that the periods of payment of the industrial accident
benefit under German law be taken into account for the purpose of prolonging
the reference period in accordance with Paragraph 236(3) of the ASVG.
17 It also questions whether Article 9(a) of
Regulation No 1408/71 is compatible with Article 48(2) and 51 of the Treaty, in
so far as it involves an exception to assimilation in relation to industrial
accident benefits. In this respect, it refers to the judgment in Paraschi
(C-349/87 [1991] ECR I-4501). It observes that if Mr Duchon had always worked
in Austria and if the industrial accident had happened there, the reference
period would have been prolonged, in accordance with national law, by a period
equal to that during which benefit would have been paid to him. The fact that
the period during which a benefit was paid in Germany is not taken into
consideration makes the position of migrant workers less favourable than that
of settled workers. That discrimination is not objectively justified.
18 In those circumstances the Oberster Gerichsthof
decided to stay proceedings and to refer the following questions to the Court
for a preliminary ruling:
1. Does the situation of an employed person who, as
a national of a country which is now a Member State, was employed prior to the
accession of that Member State in another Member State and sustained an
accident there, fall within the scope of Council Regulation (
If the first question is to be answered in the
affirmative:
2. Are Articles 48(2) and 51 of the EC Treaty (now
Articles 39(2) and 42 EC) and Regulation (
3. Are Articles 48(2) and 51 of the EC Treaty (now
Articles 39(2) and 42 EC) to be interpreted as precluding Article 9a of Regulation
(
The questions referred to the Court
The first question
19 By its first question, the Oberster Gerichtshof
is asking, essentially, whether a person who is a national of a Member State,
who, before the accession of that State to the European Union, was employed in
another Member State where he suffered an industrial accident at work and who,
after the accession of his home State, applies to the authorities of that State
for an occupational disability pension following that accident, falls within
the scope of Regulation No 1408/71.
20 Mr Duchon, the Austrian Government and the
Commission contend that that question should be answered in the affirmative.
21 In that regard, it should be borne in mind that
it is settled case-law that the principle of legal certainty precludes a
regulation from being applied retroactively, regardless of whether such
application might produce favourable or unfavourable effects for the person
concerned, unless a sufficiently clear indication can be found, either in the
terms of the regulation or its stated objectives, which allows the conclusion
to be drawn that the regulation was not merely providing for the future (Case
234/83 Gesamthochschule Duisburg [1985] ECR 327, paragraph 20, and Case C-28/00
Kauer [2002] ECR I-1343, paragraph 20). Although the new law is thus valid for
only for the future, it also applies, according to a generally recognised
principle, in the absence of a provision to the contrary, to the future effects
of situations which came about during the period of validity of the old law
(see, to that effect, Case 96/77 Bauche and Delquignies [1978] ECR 383,
paragraph 48; Case 125/77 Koninklijke Scholten-Honig and De Bijenkorf [1978]
ECR 1991, paragraph 37; Case 40/79 P. v Commission [1981] ECR 361, paragraph
12; Case 270/84 Licata v Economic and Social Committee [1986] ECR 2305,
paragraph 31; Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraphs
49 and 50; and Kauer, cited above, paragraph 20).
22 By providing that no right is to be acquired in
respect of a period prior to the date of its application in the territory of
the Member State concerned, Article 94(1) of Regulation No 1408/71 is in full
accord with the principle of legal certainty mentioned earlier.
23 Equally, in order to enable Regulation No
1408/71 to apply to the future effects of situations arising under the period
of validity of the old law, Article 94(2) imposes the obligation to take into
consideration, for the purposes of determining rights to benefit, all periods
of insurance, employment or residence completed under the legislation of any
Member State before 1 October 1972 or before the date of its application in the
territory of that Member State. It follows, therefore, from that provision that
a Member State is not entitled to refuse to take into account periods of
insurance completed in the territory of another Member State, for the purposes
of establishment of a retirement pension, for the sole reason that they were
completed before the entry into force of the regulation in its regard (Case
C-227/89 Rönfeldt [1991] ECR I-323, paragraph 16, and Kauer, paragraph 22).
24 On the other hand, Article 94(3) of Regulation
No 1408/71 also provides for account to be taken of any contingency, to which
the right in question relates, even though it materialised prior to 1 October
1972 or to the date of [the regulation's] application in the territory of the
Member State concerned.
25 There is no doubt that an accident at work which
occurred on the territory of a Member State before the entry into force of
Regulation No 1408/71 in another Member State under whose legislation benefits
for incapacity for work as a result of that accident are claimed, constitutes a
contingency within the meaning of Article 94(3) of that regulation.
26 Accordingly, the answer to the first question
must be that the situation of a person who is a national of a Member State,
who, before the accession of that State to the European Union, was employed in
another Member State where he was the victim of an accident at work and who,
after the accession of his home State, applies to the authorities in that State
for a pension for incapacity to work as a result of that accident falls within
the scope of application of Regulation No 1408/71.
The second question
27 By its second question, the Oberster Gerichtshof
is asking, essentially, whether Article 48(2) and 51 of the Treaty and
Regulation No 1408/71 must be interpreted as precluding a national provision,
such as Paragraph 235(3)(a) of the ASVG, which provides an exception to the
requirement of a qualifying period as a condition for entitlement to an
occupational disability pension where the disability is the result of an
accident at work - which occurred, in the case in point, before the date of
entry into force of that regulation in the Member State concerned - only in the
event that at the time of the accident the victim was compulsorily or privately
insured under the legislation of that State, to the exclusion of the
legislation of all other Member States.
28 In that respect, it is appropriate, as a first
step, to review the legality of a provision such as Paragraph 235(3)(a) of the
ASVG in the light of Community law as it would apply if the accident at work
had occurred after the accession to the European Union of the Republic of
Austria.
29 It is clear, as the Austrian Government and the
Commission argue, that such a provision, although it applies without taking
account of the nationality of the workers concerned, is liable to operate to
the detriment, in social security matters, of persons who have exercised their
right to the freedom of movement guaranteed by the Treaty, since the
possibility of satisfying the requirement of affiliation under the ASVG is in
their case smaller than it is in the case of workers who have remained in
Austria.
30 Moreover, the Austrian Government contends that
the duty of the national court to interpret Paragraph 235(3)(a) of the ASVG in
such a way that affiliation by virtue of an occupational activity pursued in
another Member State is treated in the same manner as affiliation by virtue of
such an activity pursued on national territory.
31 On the latter point, it must be remembered that
it is for the national court to apply Community law in full and to protect the
rights that it confers on individuals, if necessary by not applying a provision
where its application, in the circumstances of the case before it, would lead
to a result contrary to Community law (Case C-262/97 Englebrecht [2000] ECR
I-7321, paragraph 40).
32 Second, where, as in the case in the main
proceedings, the national legislation applies to the acquisition of the right
to a pension for incapacity for work resulting from an accident at work which
occurred before the date of entry into force of Regulation No 1408/71 in the
Member State where the pension is claimed, it must be pointed out, first, that
the determination of a pension entitlement acquired after the accession of the
Republic of Austria to the European Union, even as the result of a contingency
which materialised before that date, must be effected by the Austrian
authorities in accordance with the provisions of the Treaty on freedom of
movement for workers (see, to that effect, Kauer, cited above, paragraph 45).
33 On the other hand, as regards, more
specifically, the taking into account of the contingency in question in the
main proceedings, that is to say, the accident at work which occurred in 1968
in Germany, it is necessary to apply the transitional provision contained in
Article 94(3) of Regulation No 1408/71, which, by its nature, is intended to
cover situations arising at a time when the Treaty was not yet applicable in
the Member State in point. The specific purpose of that provision, as already
noted in paragraphs 23 and 24 above, is to enable Regulation No 1408/71 to
apply to the future effects of situations which came into being at a time when,
by definition, freedom of movement for persons was not yet guaranteed in the
relations between the Member State in point and the Member State in whose
territory the specific situations which may be required to be taken into
account arose.
34 In those circumstances, the fact that Mr Duchon
worked in Germany before the entry into force of the EEA Agreement or before
the accession of the Republic of Austria to the European Union cannot, as such,
preclude application of Article 94(3) of Regulation No 1408/71.
35 However, the application of the condition laid
down in Paragraph 235(3)(a) of the ASVG to an accident at work which occurred
before the date of entry into force of Regulation No 1408/71 in the Member
State where the grant of an occupational disability pension is claimed is
likely to render the benefit of Article 94(3) illusory where the national
legislation itself does not provide that affiliation under the legislation of
another Member State is to be taken into account, there being no Community rule
requiring this in respect of the period prior to the date mentioned above.
36 As a result, the answer to the second question
must be that Article 94(3) of Regulation No 1408/71, read in conjunction with
Article 48(2) of the Treaty, must be interpreted as precluding a national
provision such as Paragraph 235(3)(a) of the ASVG, which provides an exception
to the requirement of a qualifying period as a condition for the acquisition of
the right to an occupational disability pension where that disability is the
result of an accident at work - which occurred, in the case in point, before
the date of entry into force of the regulation in the Member State concerned -
only in the event that the victim had been insured compulsorily or privately at
the time of the accident under the legislation of that State, to the exclusion
of the legislation of all other Member States.
The third question
37 By its third question, the Oberster Gerichtshof
is asking, essentially, whether Article 48(2) and 51 of the Treaty must be
interpreted as precluding a provision such as Paragraph 234(2)(b) of the ASVG,
read in conjunction with Paragraph 236(3) of the same law, which takes into
consideration, for the purposes of prolongation of the reference period during
which the qualifying period must have been completed in order for the right to
a pension to be acquired, only those periods during which the insured received
a disability benefit under a national accident insurance scheme, without
providing for the possibility of prolonging the reference period where such a
benefit has been paid under the legislation of another Member State. The
national court also questions the compatibility of Article 9a of Regulation No
1408/71 with Articles 48(2) and 51 of the Treaty in so far as it expressly
excludes taking into account, for the purposes of prolongation of the reference
period under the legislation of a Member State, the periods during which
industrial accident benefits have been paid under the legislation of another
Member State.
38 In that regard, as the Austrian Government and
the Commission point out, it already follows from the Court's case-law that
even if, formally, legislation of the type in question in the main proceedings
applies without distinction as to nationality to all Community workers, who may
accordingly, under the conditions which it lays down, benefit from the
prolongation of the reference period, such legislation, in so far as it makes
no provision for the possibility of prolongation of the reference period where
events or circumstances, such as the payment of accident benefits,
corresponding to those which enable the period to be prolonged occur in another
Member State, is liable to have a much greater adverse effect on migrant
workers, since they above all, particularly in the case of invalidity, tend to
return to their countries of origin (see, to that effect, Case C-349/87
Paraschi, cited above, paragraph 24).
39 That being so, Article 48(2) and 51 of the
Treaty preclude national legislation which permits, in certain circumstances,
the reference period to be prolonged, but does not provide for the possibility
of a prolongation where events or circumstances corresponding to those which
would enable it to be granted occur in another Member State (Paraschi,
paragraph 27).
40 For the same reasons as those given at paragraph
38 of the present judgment, Article 9a of Regulation No 1408/71 must be
declared invalid in so far as it expressly excludes the possibility of taking
into account, for the purposes of prolongation of the reference period under
the legislation of a Member State, periods during which industrial accident
benefits have been paid under the legislation of another Member State.
41 The Austrian Government argues however that
Article 48(2) and 51 of the Treaty are not relevant for the purposes of the
decision in the main proceedings. In so far as the industrial accident in
question occurred before the entry in force of the EEA Agreement in Austria,
the provisions of the Treaty are inapplicable ratione temporis to those
proceedings.
42 It adds that the transitional provisions of
Article 94 of Regulation No 1408/71 do not include any assimilation rule
comparable to that contained in Article 9a, guaranteeing the prolongation of
the reference period.
43 In that respect, it must be pointed out that the
case in the main proceedings does not concern the acquisition of a pension
entitlement in respect of a period prior to the entry into force of the EEA
Agreement in the Republic of Austria, but concerns the acquisition of such
entitlement with effect from 1 January 1998.
44 As the Court has already held in its judgment in
Case C-195/98 Österreichischer Gewerkschaftbund [2000] ECR I-10497, paragraph
55, the Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden and the adjustments to the
Treaties on which the European Union is founded (OJ 1994 C 241 p. 21, and OJ
1995 L 1, p. 1) contains no transitional provisions concerning the application
of Article 48 of the Treaty. The provisions of that article must be considered
to be immediately applicable and binding as regards the Republic of Austria as
from the date of its accession to the European Union, that is to say 1 January
1995. Since that date, they may be relied on by migrant workers from any Member
State and be applied to the present and future effects of situations arising
before the accession of the Republic of Austria to the European Union.
45 That general finding cannot be called into
question by the fact that Article 94 of Regulation No 1408/71 has not expressly
provided for the possibility of taking into account, for the purposes of the
acquisition of a right to a benefit under the legislation of a Member State,
the periods which were completed in another Member State before the entry into
force of that regulation in the first of those States and during which certain
benefits, such as, in the present case, industrial accident benefits, were paid
to the person insured.
46 Having regard to the foregoing, the third
question must be answered as follows:
- Articles 48(2) and 51 of the EC Treaty must be
interpreted as meaning that they preclude a provision such as Paragraph
234(1)(2)(b) of the ASVG, read in conjunction with Paragraph 236(3) of that
law, which takes into account, for the purposes of the prolongation of the
reference period during which the qualifying period for acquisition of the
right to a pension must have been completed, only those periods during which
the insured person received a disability pension under a national accident
insurance scheme, without providing for the possibility of a prolongation of
that period where a benefit of such a kind was paid under the legislation of
another Member State.
- Article 9a of Regulation No 1408/71, which is
incompatible with Articles 48(2) and 51 of the EC Treaty in so far as it
excludes the possibility of taking into account, for the purposes of the prolongation
of the reference period under the legislation of a Member State, the periods
during which industrial accident benefits were paid under the legislation of
another Member State, is invalid.
Costs
47 The costs incurred by the Austrian Government
and the Commission of the European Communities, which have submitted
observations to the Court, are not recoverable. Since these proceedings are, so
far as the parties are concerned, in the nature of a step to proceedings
pending before the national court, the decision on costs is a matter for that
court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the
Oberster Gerichtshof by order of 27 June 2000, hereby rules:
1. The situation of a person who is a national
of a Member State, who, before the accession of that State to the European
Union, was employed in another Member State where he was the victim of an
accident at work, and who, after the accession of his home State, applies to
the authorities in that State for a pension for incapacity for work as a result
of that accident falls within the scope of application of Council Regulation (
2. Article 94(3) of Regulation No 1408/71, as
amended and updated by Regulation No 118/97, read in conjunction with Article
48(2) of the EC Treaty (now, after amendment, Article 39(2) EC), must be
interpreted as precluding a national provision such as Paragraph 235(3)(a) of
the Allgemeines Sozialversicherungsgesetz, which provides an exception to the
requirement of a qualifying period as a condition for the acquisition of the
right to an occupational disability pension where that disability is the result
of an accident at work - which occurred, in the case in point, before the date
of entry into force of that regulation in the Member State concerned - only in
the event that the victim had been insured compulsorily or privately at the
time of the accident under the legislation of that State, to the exclusion of
the legislation of all other Member States.
3. Articles 48(2) and 51 of the EC Treaty (now,
after amendment, Articles 39(2) and 42 EC) must be interpreted as meaning that
they preclude a provision such as Paragraph 234(1)(2)(b) of the Allgemeines
Sozialversicherungsgesetz, read in conjunction with Paragraph 236(3) of that
law, which takes into account, for the purposes of prolongation of the
reference period during which the qualifying period for the acquisition of the
right to a pension must have been completed, only those periods during which
the insured person received a disability pension under a national accident
insurance scheme, without providing for the possibility of a prolongation of
that period where a benefit of such a kind was paid under the legislation of
another Member State.
4. Article 9a of Regulation No 1408/71, as
amended and updated by Regulation No 118/97, a provision which is incompatible
with Articles 48(2) and 51 of the EC Treaty in so far as it excludes the
possibility of taking into account, for the purposes of the prolongation of the
reference period under the legislation of a Member State, the periods during
which industrial accident benefits were paid under the legislation of another
Member State, is invalid.