In Case C-57/90,
Commission of the European Communities, represented by Jean-Claude Séché, its Legal Adviser, and Maria Patakia, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
French Republic, represented by Philippe Pouzoulet, Assistant Director at the Legal Service of the Ministry of Foreign Affairs, and Claude Chavance, Principal Attaché for Central Administration at that Ministry, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 Boulevard du Prince Henri,
defendant,
APPLICATION for a declaration that by deducting sickness insurance contributions from supplementary and early retirement pensions received by persons who are resident in a Member State other than France and whose cover against sickness and maternity is not provided by a French scheme, the French Republic has failed to fulfil its obligations under the EEC Treaty and is, in particular, acting in breach of the provisions of Articles 13(1) and 33 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as laid down by Council Regulation (EEC) No 2001/83 of 2 June 1983 (Official Journal L 230, p. 6),
THE COURT,
composed of: O. Due, President, R. Joliet, F. Grévisse and P.J.G. Kapteyn, Presidents of Chambers, C.N. Kakouris, G.C. Rodríguez Iglesias and M. Díez de Velasco, Judges,
Advocate General: C.O. Lenz,
Registrar: D. Louterman, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 2 July 1991,
after hearing the Opinion of the Advocate General at the sitting on 19 September 1991,
gives the following
Judgment
1 By an application lodged at the Court Registry on 7 March 1990, the Commission of the European Communities brought an action pursuant to Article 169 of the EEC Treaty for a declaration that by deducting sickness insurance contributions from supplementary and early retirement pensions received by persons who are resident in a Member State other than France and whose cover against sickness and maternity is not provided by a French scheme, the French Republic has failed to fulfil its obligations under the EEC Treaty and is, in particular, acting in breach of the provisions of Articles 13(1) and 33 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as laid down by Council Regulation (EEC) No 2001/83 of 2 June 1983 (Official Journal L 230, p. 6).
2 Article 13(1) of Regulation No 1408/71 provides that persons to whom the regulation applies are to be subject to the legislation of a single Member State only. Under Article 33 of the regulation, the institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity is to be authorized to make such deductions, calculated in accordance with the legislation concerned, from the pension payable by such institution, to the extent that the cost of the benefits under Articles 27, 28, 28a, 29, 31 and 32 is to be borne by an institution of the said Member State.
3 French Law No 79-1129 of 28 December 1979, enacting various measures to finance social security (Official Gazette of the French Republic No 302 of 29 December 1979, p. 3279), as supplemented by Implementing Orders No 80-298 of 24 April 1980 (Official Gazette of the French Republic No 99 of 26 April 1980, p. 1080), and Implementing orders Nos 80-598 and 80-599 of 30 July 1980 (Official Gazette of the French Republic No 177 of 31 July 1980, p. 1931), provides that contributions intended to finance the general social security system are to be deducted from supplementary and early retirement pensions irrespective of the place where the recipients reside.
4 Special early retirement allowances are paid by the Fonds National de l' Emploi (National Employment Fund). Under Article L 322-4 of the Code du Travail (Labour Code) (Order No 86-948 of 11 August 1986), such allowances may be paid to certain categories of older workers under agreements concluded by the competent authorities with trade or inter-trade bodies, trade-union organizations or individual undertakings.
5 The grant of a supplementary pension to employed persons covered by the general old-age pension and agricultural insurance scheme became compulsory under Article L 731-5 of the Code de la Sécurité Sociale (Social Security Code) (Law of 29 December 1972). Collective agreements concluded between the two sides of industry and applicable to employers which are members of either of the two employers' organizations signatories to them set out the actual provisions governing contributions and benefits. Inter-ministerial Orders implementing Article L 731-2 of the Code de la Sécurité Sociale extend these provisions to employers which are not members of either of those employers' organizations and extend them to cover employers in industries not represented by those organizations, provided that they come within the scope of the general old-age pension scheme.
6 Reference is made to the Report for the Hearing for a fuller account of the legal framework and background to the case and the pleas in law and arguments of the parties which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
7 The Commission claims that the introduction by the French authorities, under its sickness and maternity scheme, of a contribution which is deducted from payments of early retirement or supplementary pensions made to persons resident in another Member State who enjoy sickness benefits under the legislation of that other State is incompatible with the combined provisions of Article 13(1) and Article 33 of Regulation No 1408/71.
8 The Commission considers that Article 13(1) lays down the fundamental principle that a single system of legislation is to be applicable and that Article 33 puts this in concrete form with regard to sickness insurance contributions deducted from old -age benefits covered by Regulation No 1408/71: this principle may be invoked as a general principle predating Regulation No 1408/71 and applicable in this case even though the matters covered by the regulation do not specifically include either early retirement or supplementary pension schemes.
9 The Commission claims in this respect that, in judgments concerning situations existing prior to the date on which Regulation No 1408/71 entered into force, the Court has interpreted Articles 48 and 51 of the Treaty in accordance with such a principle, whose aim is to avoid plurality of legislation or purposeless confusion of contributions and liabilities which would result from the application of several legislative systems. According to the Commission, the Court has drawn a parallel between the rules applicable to contributions and those applicable to entitlement to benefits.
10 The French Republic denies the existence of a general principle that a single system of legislation should apply. It argues that there are numerous exceptions contained in Regulation No 1408/71, including those set out in Article 14c and Annex VII in particular. As the Community rules stand at present, more than one system of legislation may apply to workers for social security purposes.
11 It must be stated, first of all, that recipients of an early retirement or supplementary pension are employed persons within the meaning of Article 1(a) of Regulation No 1408/71 and that they fall within the class of persons covered by the regulation, as described in Article 2 thereof.
12 It must also be stated that, according to the established case-law of the Court (see in particular paragraphs 12 and 13 of its judgment of 10 July 1986 in Case 60/85 (Luijten v Raad van Arbeid [1986] ECR 2365), the principle that a single system of legislation should apply to workers moving within the Community, which had been applied under Regulation No 3 of the Council concerning social security for migrant workers is expressed in Title II, "Determination of the Legislation Applicable" of Regulation No 1408/71, Article 13(1) of which states that the persons concerned are to be subject to the legislation of a single Member State only and that such legislation "shall be determined in accordance with the provisions of this Title".
13 However, the principle that a single system of legislation should apply only governs the situations referred to in Articles 13(2) and 14 to 17 of Regulation No 1408/71, which determine the conflict rules which are to apply in each situation. In paragraphs 9 and 10 of its judgment in Case C-140/88 (Noij v Staatssecretaris van Financiën [1991] ECR I-407), the Court held in effect that persons such as workers who have definitively ceased all professional or trade activity and who are not in one of the situations referred to in those articles may be subject simultaneously to the legislation of more than one Member State.
14 Since the recipients of an early retirement or supplementary pension are not in one of the situations referred to in Articles 13(2) or 14 to 17 of Regulation No 1408/71, it follows that the principle that a single system of legislation should apply cannot be invoked for their benefit.
15 As regards Article 33 of Regulation No 1408/71, it should be noted that in its judgment in Case 275/83 (Commission v Belgium [1985] ECR 1097) the Court held that, even if there is no direct link between the contribution and the risk insured, deductions from statutory old-age, retirement, service-related or survivors' pensions cannot be made by a Member State where the sickness and maternity benefits received in return are not borne by an institution of that Member State.
16 However, Section 5 of Title III of Regulation No 1408/71, which contains Article 33 and is headed "Pensioners and Members of their Families", only refers to pensioners in receipt of pensions payable under the legislation of one or more Member States. Any State which is responsible for payment of a pension under its legislation must therefore be considered responsible for payment of a pension for the purposes of Article 33.
17 According to the first paragraph of Article 1(j) of Regulation No 1408/71, the term "legislation" means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2).
18 The second paragraph of Article 1(j) provides that the term "legislation" is to exclude provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope, in so far as this limitation is not lifted in the cases mentioned in that second paragraph by a declaration of the Member State concerned.
19 The provisions of the abovementioned French schemes relating to early retirement and supplementary pensions were introduced under agreements concluded by the competent authorities with trade or inter-trade bodies, trade-union organizations or individual undertakings or under collective agreements concluded between both sides of industry and have not been the subject of a declaration as specified in the second paragraph of Article 1(j) of Regulation No 1408/71.
20 It must therefore be declared that those schemes do not constitute legislation within the meaning of the first paragraph of Article 1(j) of Regulation No 1408/71. Article 33 does not therefore apply to them.
21 Having regard to all the foregoing considerations and without it being necessary to rule on the other arguments pleaded in defence, it must be declared that the French Republic has not failed to fulfil its obligations under the EEC Treaty and, in particular, has not acted in breach of Articles 13(1) and 33 of Regulation No 1408/71.
Costs
22 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
(1) Dismisses the action;
(2) Orders the Commission to pay the costs.
