JUDGMENT OF 5. 5. 1977 —CASE 104/76 JANSEN v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ
In Case 104/76 Reference to the Court under Article 177 of the EEC Treaty by the Landessozialgericht Nordrhein-Westfalen (Higher Social Court for North Rhine-Westphalia) for a preliminary ruling in the action pending before that court between
THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore (Presidents of Chambers), J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts, the procedure and the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I — Facts and procedure
Mrs Gerda Jansen, a German national, born on 4 September 1944, pursued activities as an employed person in the Federal Republic of Germany until 9 May 1968 which involved compulsory membership of a social security scheme.
Following her marriage on 5 March 1965, and pursuant to the provisions of paragraph 1304, still applicable at the time (though repealed with effect from 1 January 1968), of the Reichsversicherungsordnung (Imperial Insurance Regulation, hereinafter referred to as ‘the RVO’), the contributions which Mrs Jansen had paid up to 31 March 1965 to the German workers' pension insurance scheme were reimbursed to her by a decision of 31 May 1965 of the Landesversicherungsanstalt.
On 14 May 1968, Mrs Jansen established her domicile in Bocholtz in the Netherlands, and did not take up any fresh employment.
On 11 May 1970, pursuant to paragraph 1303 (1) of the RVO, she requested from the Landesversicherungsanstalt Rheinprovinz the reimbursement of half the amount of the 27 monthly contributions further paid between 1 April 1965 and 9 May 1968.
By a decision of 17 July 1970 the Landesversicherungsanstalt Rheinprovinz rejected this application: it stated that Mrs Jansen was compulsorily subject to the statutory pension insurance of the Netherlands, pursuant to the Netherlands General Old-age Insurance Law (Algemene Ouderdomswet, hereinafter referred to as ‘the AOW’) and the General Law concerning Widows and Orphans (Algemene Weduwen- en Wezenwet, hereinafter referred to as ‘the AWW’), and that therefore she had not, as was required by paragraph 1303 (1) of the RVO, ceased to be a member of a compulsory insurance scheme.
On 3 August 1970 Mrs Jansen appealed against this decision to the Sozialgericht (Social Court) Düsseldorf.
By a judgment of 17 September 1971 that court rejected her application, on the grounds that in the Netherlands she is subject to compulsory general insurance; since Regulation No 3 of the Council of 25 September 1958 on social security for migrant workers applies to her situation, she does not fulfil the condition laid down in paragraph 1303 (1) of the RVO.
On 30 November 1971 Mrs Jansen appealed against that judgment to the Landessozialgericht Nordrhein-Westfalen.
By a judgment of 27 April 1972 that court allowed Mrs Jansen's appeal, annulled the decision of the Landesversicherungsanstalt Rheinprovinz and ordered it to reimburse to her half of the contributions paid from 1 April 1965 to 9 May 1968.
The Landesversicherungsanstalt Rheinprovinz appealed against this judgment on a point of law to the Bundessozialgericht (Federal Social Court).
By a judgment of 31 January 1974 the Bundessozialgericht quashed the judgment of the Landessozialgericht and remitted the case to that court for it to give a fresh ruling after obtaining further information regarding Mrs Jansen's being compulsorily subject to Netherlands insurance and the details of such insurance.
By an order of 14 October 1976 the 3rd Senate of the Landessozialgericht decided, in accordance with Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:
1) Was the right to reimbursement of contributions already contained in Regulations Nos 3 and 4 of the EEC or was the position different from that provided by Regulation (EEC) No 1408/71 with effect from 1 October 1972? Did that regulation merely clarify a legal situation which existed already or did it make provision for the first time for the right to reimbursement of contributions?
2) In the domestic German law contained in paragraphs 1303 and 1323a of the Reichsversicherungsordnung was it necessary for an insurance requirement under the Algemene Ouderdomswet and the Algemene Weduwen- en Wezenwet of the Netherlands to be regarded as “compulsory insurance” within the meaning of paragraph 1303 (1) of the RVO even from May 1970 and is a German pension insurance institution for that reason debarred from reimbursing contributions under the abovementioned provisions if a German national transfers his residence to the Netherlands?
3) Can Article 2 of Regulation No 3 be interpreted to the effect that the domestic German right of reimbursement of contributions is included in the matters covered by that regulation?
4) Are the relevant EEC regulations primarily intended to serve:
a) to guarantee and reinforce the right of citizens of the EEC to freedom of movement; and
b) to maintain all rights or social security entitlements already acquired in a Member State in particular with regard to a subsequent provision for old-age, for example by aggregating insurance periods which are capable of being taken into account?
5) Is the principle of the maintenance of rights or affiliations already acquired always to take precedence even over the wish of the beneficiary to have his contributions reimbursed even if, as in the case of the AOW, national law provides for the possibility of exemption from the insurance requirement if an application is submitted?
The order of the Landessozialgericht was entered at the Court Registry on 27 October 1976.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission of the European Communities on 3 January 1977.
On 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.
However, the Landesversicherungsanstalt Rheinprovinz was requested on 10 February 1977 to supply the Court with details in writing on certain points of fact; those details were submitted on 2 March 1977.
II — Written observations submitted to the Court
The Commission of the European Communities submits in essence the following observations:
1. Matters covered by Regulation No 3 (First and third questions)
a) Unlike Regulation No 1408/71, Regulation No 3 does not contain any express reference to national schemes for reimbursement of contributions: the matter is not raised either in Article 2 (1), which lays down the matters covered by the regulation, or in Article 1 (s), which gives a definition of the concepts of “benefits” and “pensions”. Therefore the regulation can be considered as covering rights to the reimbursement of contributions only by inference on the basis of interpretation; such a view is confronted prima facie by the objection that the benefits listed in Article 2 (1) all depend upon the materialization of the risk, whereas the reimbursement of contributions is the consequence of the fact that the insurance relationship is retroactively terminated.
b) However, for the purposes of defining the general ambit of Regulation No 3, the concept of “benefits” could be given an extensive interpretation. The close systematic relationship between the reimbursement of contributions and the contribution scheme, and in particular the actual right to the pension, can be put forward in favour of including the scheme for reimbursement of contributions in the matters covered by Regulation No 3. The wording of Article 2 (1) of Regulation No 3 indicates that it applies generally to any legislation relating to social security benefits, since according to the definition given in Article 1 (b), the term “legislation” means everything contained in all the laws, regulations and other provisions of the Member States. Moreover, the inclusion of the reimbursement of contributions in the concept of “benefits” would ensure, in the interest of freedom of movement for workers, the implementation of the export guarantee provided for by Article 10 (1).
c) An extensive interpretation of Article 2 (1) of Regulation No 3 is also justified in the light of Regulation No 1408/71, which has been in force since 1 October 1972. Article 4 (1) thereof, defining the matters covered by the regulation, corresponds, except for some formal amendments, word for word to Article 2 (1) of Regulation No 3, and refers to the same schemes and legal provisions. The right to the reimbursement of contributions is brought within the ambit of Article 4 (1) of Regulation No 1408/71 by express provision in Article 10 (2) of that regulation. This observation is confirmed by the definition of the concept of “benefits” in Article 1 (t).
d) At the least, the inclusion of the reimbursement of contributions in the matters covered by Regulation No 3 is not contrary to the wording of Article 2 (1) of that regulation.
2. Assimilation of insurance periods (Second, fourth and fifth questions)
The problem is to determine the legal consequences of the inclusion of the scheme for reimbursement of contributions within the ambit of Regulation No 3: is reimbursement precluded as long as an insurance requirement exists in another Member State?
a) The purpose of the aggregation of the insurance periods completed by a worker under the legislation of several Member States, provided for by Article 27 of Regulation No 3, is to prevent the migrant worker from being treated unfavourably in relation to other workers by virtue of his having exercised his right of freedom of movement; such aggregation applies only in clearly defined cases, when the national legislation alone does not enable the objective of the creation of freedom of movement for workers to be attained.
b) Nor does the objective of Regulation No 3 of ensuring freedom of movement for workers by the coordination of social security schemes justify the maintenance of rights or guarantees acquired on the basis of the payment of compulsory contributions. The reimbursement of contributions, at the request of an insured person who has ceased to be a member of the insurance scheme, tends rather to favour freedom of movement, even if in the long term it may objectively be contrary to the best interests of the worker. The fact that a migrant worker may be able to derive advantages therefrom which the national legislature did not envisage does not follow from the interpretation of Community law, but from the co-existence of different social insurance schemes. Moreover, it is open to the national legislature to make the repayment of contributions subject to the condition that the insurance requirement in another Member State should also come to an end.
c) This interpretation of Regulation No 3 does not conflict with Article 10 (2) of Regulation No 1408/71. That paragraph brings the legislation of the Member States on the reimbursement of contributions into alignment in so far as that legislation regards the fact of ceasing to be subject to compulsory insurance as the decisive factor in the retroactive termination of the insurance relationship. It gives a Community content to the concept of an insurance requirement laid down by national law, by putting national and foreign compulsory insurance for workers on an equal footing. This equality of treatment is in the best interests of the migrant worker and fulfils the social policy aims of those Member States under whose legislation reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance. That condition prompts the view, on the one hand, that it is unjust to compel the worker to “abandon” compulsory contributions which henceforward cannot bring him any insurance benefits, and on the other hand, that it is unadvisable to terminate the insurance relationship as long as it is possible subsequently to claim benefits. It is no longer possible to put that view into effect within the isolated context of the law of a single State, having regard to freedom of movement for workers and its effect upon social security law.
d) The reimbursement of contributions by a single Member State acting in isolation is not ipso facto contrary to the principle of aggregation laid down by the Community regulations concerning social security and by Article 51 of the Treaty. That might be the case if provisions of internal law provided for the termination, with retroactive effect, of the insurance relationship without the consent of the worker concerned or against his wishes. Article 10 (2) of Regulation No 1408/71 expressly refers to the fact of ceasing to be subject to compulsory insurance as a condition imposed by internal law for the reimbursement of contributions; it is directed at only one of the forms which schemes for the reimbursement of contributions can take, and the national legislature is entitled to provide for other cases of retroactive termination of the insurance relationship.
3. Persons covered by the assimilation of periods (Second, fourth and fifth questions)
On the assumption that it is accepted that the aggregation rule and the objectives of Regulation No 3 require that insurance periods be assimilated for the purpose of giving effect to a national scheme for the reimbursement of contributions, the question arises of the persons covered by such arrangements. In fact they can apply only to persons subject to compulsory insurance as workers.
a) This observation follows both from the general definition of the persons covered by Regulation No 3 laid down in Article 4 (1) thereof, and from the scope and purpose of any arrangements of that kind; it is confirmed by the wording of Article 10 (2) of Regulation No 1408/71. The appellant in the main action does not even fulfil the conditions laid down by Article 4 (1) of Regulation No 3: when she left her State of origin, she also ceased her professional or trade activity. She is subject to compulsory insurance under the AOW, not as a worker, but solely by virtue of the fact that she lives in the Netherlands. As regards the insurance periods which are relevant to the present case, her previous occupation as an employed person does not give her the status of an employed person within the meaning of the regulation. Similarly, according to the definition given in Article 1 (a) (iii) of Regulation No 1408/71, the fact of having previously been insured as a worker can be taken into consideration only as regards persons who are voluntarily insured in the Member State in which they have previously been compulsorily insured.
b) The same definition of the persons covered by assimilation arrangements may be deduced from the close relationship with the aggregation rule laid down by Article 27 of Regulation No 3. The purpose of that rule is to coordinate social security schemes applicable to employed persons; the regulation does not seek to establish a more extensive coordination, applicable to all inhabitants. Nor does the appellant have the status of “assimilated worker” which could bring her within any given assimilation arrangements. Article 1 (a) of Regulation No 1408/71, which defines the concept of an employed person as broadly as possible, requires that residents covered as such by compulsory insurance should have the status of employed persons.
4. The questions referred by the national court should be answered as follows: 1. The inclusion of the right to reimbursement of contributions, provided for by national law, in the matters covered by Regulation No 3 is not contrary to the wording of Article 2 (1) of that regulation. 2. Schemes for the reimbursement of contributions are not explicitly provided for within the framework of Regulation No 3, nor can it be inferred from the scope and purpose of that regulation that compulsory insurance in one Member State must be taken into account when, according to national law, reimbursement of contributions is subject to the cessation of compulsory insurance.
III — Oral procedure
The Landesversicherungsanstalt Rheinprovinz, the respondent in the main action, represented by Rolf Schieffer, the Chairman of the Board of Management, and the Commission of the European Communities, represented by its Legal Adviser, Norbert Koch, submitted their oral observations and their answers to questions put by the Court at the hearing on 10 March 1977.
After clarifying certain points relating to the domestic German law applicable in the main action, the Landesversicherungsanstalt Rheinprovinz submitted in essence the following observations:
1. Matters covered by the Community regulations
a) According to Article 2 (1) of Regulation No 3, that regulation applies to all legislation governing invalidity, old-age and death benefits, thus to the whole of Book 4 of the German social insurance regulation, which also governs the scheme for reimbursement of contributions. Article 1 (b) of Regulation No 3 confirms that that regulation relates to social security schemes and branches of social security in general and that one specific benefit cannot be isolated therefrom.
b) This extensive interpretation is in accordance with Regulation No 1408/71. Although Article 4 of that regulation does not add to the matters covered by the regulation, Article 10 (2) thereof includes provisions governing the scheme for reimbursement of contributions.
2. Persons covered by the Community regulations
a) With regard to Article 4 (1) of Regulation No 3, according to which the regulation applies to employed persons or assimilated workers who are or have been subject to the legislation of one or more of the Member States, it suffices to observe that the appellant in the main action has been subject, as a worker, to the legislation of the Federal Republic of Germany, and that she retains her status of worker, irrespective of whether or not she has, in another State of residence, resumed activities as an employed person which are subject to compulsory contributions, or of whether the previous insurance is continued in the form of a general insurance applying to the whole of the population, or even of whether she is in employment which is exempt from the obligation to pay contributions.
b) This conclusion is confirmed by Article 9 (1) of Regulation No 3, according to which, for the purposes of admission to compulsory insurance, the insurance periods and assimilated periods completed under the legislation of Member States other than the State of residence are, in so far as is necessary, to be reckoned as insurance periods completed under the legislation of that State. That provision is meaningless unless the status of worker is maintained.
3. Assimilation of insurance periods
a) In favour of a worker who has been successively or alternately subject to the legislation of two or more Member States, Article 27 of Regulation No 3 provides that the insurance periods and assimilated periods completed under the legislation of each of the Member States are to be aggregated. The purpose of that provision is to prevent the worker from suffering disadvantages with regard to social security, owing to the fact that he has changed his State of residence. In regard to the aggregation rule, the nature of the insurance periods is immaterial; the decisive factor is the fact that they were completed under the legislation of various States. In this instance, aggregation should be carried out in Germany only in respect of old-age or death benefits; however, in that case there would no longer be any justification for a reimbursement of contributions, since there are grounds for such reimbursement only with respect to those insured persons who, for want of compulsory or optional contributions, cannot assert a right to benefits on the basis of insurance periods previously completed.
b) According to Article 10 (2) of Regulation No 1408/71, where under the legislation of a Member State reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition is not to be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State. In this connexion as well, the status of worker is decisive. This view is in the worker's best interests and corresponds to the social policy objectives of the Member States; nor does it prejudice the principle of freedom of movement. If a worker moves to a Member State in which there is no general insurance which is valid for the whole of the population, no compulsory insurance can stand in the way of an application for the reimbursement of contributions; if, on the contrary, he moves to a State in which such general insurance exists, that fact has no consequences other than those which are linked to the compulsory nature of the insurance to which he is subject as a worker in his own State. Thus the principle of equality of treatment is not put in issue. The Advocate-General delivered his opinion at the hearing on 31 March 1977.
Decision
1. By order of 14 October 1976, which was received at the Court Registry on 27 October 1976, the Landessozialgericht Nordrhein-Westfalen (Higher Social Court for the ‘Land’ of North Rhine-Westphalia) submitted for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, several questions relating to the interpretation of certain provisions of the Community regulations concerning social security, namely Regulation No 3 of 25 September 1958 (JO 1958, p. 561) and Regulation No 1408/71 of 14 June 1971 (OJ, English Special Edition 1971 (II), p. 416), with a view to determining their effect, if any, on the reimbursement of social security contributions in the event of the termination of a compulsory insurance relationship.
2. It appears from the file on the case that, following her marriage on 5 March 1965, the appellant in the main action obtained under the German legislation then in force the reimbursement of the contributions which she had previously paid, and thereafter remained a member of the German invalidity and old-age pension insurance scheme for the period from 1 April 1965 to 9 May 1968. This social insurance relationship came to an end following the cessation of all professional or trade activity by the appellant in Germany as a result of the transfer of her domicile to the Netherlands in May 1968. Subsequently, by an application of 11 May 1970, the person concerned claimed repayment from the German social security institution of the amount of the 27 monthly contributions which she had paid during the period specified above, on the basis of paragraph 1303 of the Reichsversicherungsordnung (Imperial Insurance Regulation, hereinafter referred to as ‘the RVO’), under which, without prejudice to certain other conditions attaching to its application which are not in dispute in the present case, contributions are paid back to the person entitled to receive them upon the cessation of any obligation on his part to be a member of a social insurance scheme.
3. By a decision of 17 July 1970, the competent social security institution, the Landesversicherungsanstalt Rheinprovinz, rejected this application on the ground that since the person concerned was henceforward compulsorily subject to the general pension insurance scheme of the Netherlands, pursuant to the Netherlands General Laws on Old-Age Insurance (Algemene Ouderdomswet, hereinafter referred to as ‘the AOW’) and on Widows' and Orphans' Insurance (Algemene Weduwen- en Wezenwet, hereinafter referred to as ‘the AWW’), she could not be considered to be free from any membership obligation within the meaning of the German legislation. The institution stated that, in view of the provisions of Community law, submission to the Netherlands social security legislation was to be considered as a continuation of membership under German legislation, so that the condition laid down by paragraph 1303 of the RVO was not fulfilled.
4. An application by the person concerned was rejected by the court at first instance, but allowed by the Landessozialgericht on appeal, whereupon the social security institution appealed on a point of law to the Bundessozialgericht. By a judgment of 31 January 1974, the Bundessozialgericht held that, although repayment of the contributions was due under the national legislation following the cessation of any relationship between the person concerned and a German social security institution, none the less it had to be considered whether the operation of such legislation was not modified by the effect of the provisions of Community law in the event of the person concerned being subject to a social security requirement in another Member State. Since this point of fact had not been adequately clarified during the earlier proceedings, the Bundessozialgericht quashed the decision on appeal and remitted the case to the Landessozialgericht. On the basis of information provided by the competent Netherlands institution, namely the Soziale Verzekeringsbank, Amsterdam, that court was able to find as a fact that the appellant in the main action, who apparently does not pursue any activity as an employed person in the Netherlands, is automatically subject to the application of the AOW and the AWW. In the light of this factual situation, the Landessozialgericht takes the view that the action does raise certain questions relating, inter alia, to the determination of the matters covered by Regulation No 3 and to its relationship with Regulation No 1408/71.
First and third questions (application of Regulation No 3 to the repayment of contributions, relationship with Regulation No 1408/71
5. In substance, the first question asks whether the system of reimbursement of contributions was already included in the matters covered by Regulation No 3 or whether the position was different from that subsequently provided by Regulation No 1408/71; and whether in this connexion the latter regulation merely clarified the state of the law which existed already or whether it made provision for the first time for the system of reimbursement of contributions. The third question further asks whether Article 2 of Regulation No 3 may be interpreted to the effect that the domestic German system of reimbursement of contributions is included in the matters covered by that regulation.
6. The first thing which must be done in order to answer these questions is to examine, with regard to the reimbursement of social security contributions, the scope of Regulation No 3, which was applicable at the time of the facts which gave rise to this action. The matters covered by that regulation are determined by Article 2. Article 2 (1) lists the different branches of social security which the regulation covers. In each case such legislation is envisaged as a whole, as is emphasized by Article 2 (2), which gives expression to the intention of dealing with the different social security ‘schemes’ in their entirety. Therefore there is no doubt that, in so far as it forms an integral part of the provisions governing a particular social security scheme, the reimbursement of contributions comes within the ambit of Regulation No 3. However, it is none the less true that, although Regulation No 3 is applicable in principle, it does not contain any specific provision relating to the reimbursement of contributions. It follows from this that such reimbursement is covered only by the general rules which are affirmed by that regulation and by the provisions of the EEC Treaty to which it gives effect. Depending on the circumstances, the same could have been true of the rule on equality of treatment affirmed by Article 8, or on the waiving of residence clauses provided for by Article 10 (1), these being provisions whose application is not in dispute in this case.
7. The same ideas underlie Regulation No 1408/71, which in the meantime has replaced Regulation No 3. Article 4 of that regulation, which is identical in substance to Article 2 of Regulation No 3, determines the matters covered by the new provisions in terms which make it clear that the national social security schemes are subject in their entirety to the application of the rules of Community law. However, unlike Regulation No 3, Regulation No 1408/71 includes, at Article 10 (2), a specific provision relating to the reimbursement of contributions, under which ‘Where under the legislation of a Member State reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition shall not be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State’. In comparison with Regulation No 3, that provision introduces a new rule, under which, in order to decide the question whether for the purposes of reimbursement of contributions a person has ceased to be subject to compulsory insurance in a particular Member State, his status with regard to the social security legislation of any other Member State must be taken into consideration. Since it is a new provision, Article 10 (2) of Regulation No 1408/71 cannot be extended to facts which occurred outside the period covered by the regulation. In conclusion, the important point is that, although Regulation No 3 also applied to the reimbursement of contributions, only its general provisions could have any effect on the conditions of such reimbursement.
8. Therefore the answer to the questions referred to the Court should be that the reimbursement of social security contributions came within the ambit of the general provisions of Regulation No 3, by virtue of the determination under Article 2 of the matters covered by that regulation. Although the same interpretation must be given to Article 4 of Regulation No 1408/71, the application of the specific rule in Article 10 (2) must however remain limited to the period covered by that regulation.
Second question (taking into consideration of a generalized insurance scheme)
9. In substance, the second question asks whether, before Regulation No 1408/71 entered into force, an insurance scheme such as that which exists in the Netherlands in the form of the AOW and the AW had to be taken into consideration for the purpose of deciding the question whether the person concerned had satisfied the condition of ceasing to be in any way subject to compulsory social insurance, as stipulated by German legislation.
10. It follows from the foregoing that prior to the entry into force of Regulation No 1408/71, that is, under the system laid down by Regulation No 3, there was no provision of Community law which would have prevented reimbursement of contributions pursuant to the legislation of a Member State under which such reimbursement is conditional upon the cessation of any obligation to be a member of the social security institution of that State. It follows that, provided that the conditions laid down by the applicable national legislation were satisfied, Regulation No 3 did not prevent the reimbursement of social security contributions by reason of the fact that the person concerned fell within the ambit of another social security scheme following the transfer of his residence to another Member State.
Fourth and fifth questions (objectives of the social regulations of the Community)
11. The fourth question asks whether the relevant EEC regulations are primarily intended to serve: (a) to guarantee and reinforce the right of citizens of the EEC to freedom of movement; and (b) to maintain all rights or social security entitlements already acquired in a Member State in particular with regard to a subsequent provision for old-age, for example by aggregating relevant insurance periods. The fifth question further asks whether the principle of the maintenance of rights or affiliations already acquired must in all cases be given precedence, even over the wish of the beneficiary to have his contributions reimbursed. In substance, these two questions are directed at ascertaining whether a right to reimbursement of social security contributions conferred by national legislation on former members, when they satisfy all the conditions stipulated by law for that purpose, can be restricted on the basis of the objectives pursued by the Community rules, even against the wish of the persons concerned, with a view to maintaining any rights in the process of being created, which could be realized later through the operation of the aggregation rule referred to in Article 51 of the Treaty and put into effect by Regulations No 3 and No 1408/71.
12. The purpose of the provisions of Article 51 of the EEC Treaty and of the regulations adopted to give it effect is to eliminate any disadvantages which workers might suffer as a result of the fact that their social security record was completed under systems laid down by the national legislation of different States. Although those provisions ensure that, for the purpose of acquiring and retaining the right to benefit, migrant workers enjoy aggregation of all periods taken into account under the law of the several countries, they cannot however be interpreted, in the absence of express provisions, as preventing persons so favoured from exercising the legal options open to them under the legislation of one or other of the Member States, such as the right of applying in certain circumstances for the reimbursement of social security contributions. Indeed, such an interpretation would conflict with the respect which must be shown, in the absence of provisions to the contrary, for the freedom of persons who are members of various social security systems to decide on their own best interests, within the framework of the options open to them under a national legislation. Therefore, Community law, as it stood at the time of the adoption of Regulation No 3, cannot be interpreted as excluding an option available under a national legislation with regard to the reimbursement of social security contributions.
13. Therefore the answer to the questions referred to the Court should be that, under the system laid down by Regulation No 3, the objectives pursued by the Treaty and by the regulation itself did not justify the refusal of a reimbursement of social security contributions to a person who could claim the benefit of such reimbursement under a national legislation.
Costs
14. 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 Landessozialgericht Nordrhein-Westfalen, 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 Landessozialgericht Nordrhein-Westfalen by order of 14 October 1976, hereby rules:
1 The reimbursement of social security contributions comes within the ambit of the general provisions of Regulation No 3, by virtue of the determination under Article 2 of the matters covered by that regulation.
2 The same interpretation must be given to Article 4 of Regulation No 1408/71. The application of the specific rule in Article 10 (2) must, however, remain limited to the period covered by that regulation.
3 Provided that the conditions laid down by the applicable national legislation are satisfied, Regulation No 3 does not prevent the reimbursement of social security contributions by reason of the fact that the person concerned falls within the ambit of another social security scheme following the transfer of his residence to another Member State.
4 Under the system laid down by Regulation No 3, the objectives pursued by the Treaty and by the regulation itself did not justify the refusal of a reimbursement of social security contributions to a person who could claim the benefit of such reimbursement under a national legislation.