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 AWW 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 .
