C-1/67

together with

Directeur Regional de la Sécurité Sociale d'Orléans, Orleans,

on the interpretation of Article 51 of the above-mentioned Treaty and Articles 27 and 28 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.);

THE COURT

composed of: Ch. L. Hammes, President, A. Trabucchi and R. Monaco, President of Chambers, L. Delvaux, A. M. Dormer, R. Lecourt and W. Strauß (Rapporteur), Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

Germany and 113 quarters in France. ('S' = the fraction of the basic salary 2. When he reached the age of 62 he to be taken into account). (This requested payment of his French pen method of calculation is based upon sion. At that time, the applicant did not French legislation which provides for qualify for a pension in respect of the a maximum insurance period of 120 periods completed in Germany as he quarters so that any period completed had not reached the age of 65 years as over and above this maximum cannot required by German legislation. The increase the amount of the benefits qualification for the French pension was due.) therefore considered without reference — Finally it apportioned the said to the insurance periods in Germany and 'theoretical amount' by multiplying it the pension was paid having regard only 113 to the insurance periods in France. As by the fraction . (In this calcula-

whole working life in France (the lodged an appeal against the decision ('theoretical amount'); this amount of that Commission with the Cour was based on a formula of 120 x S d'Appel, Orleans.

'that the regulations of the EEC in the opinion on 17 May 1967. field of social security have as their basis their framework and their bounds Articles 48 to 51 of the Treaty of Rome; IV — Summary of the observations of the that Article 51 provides that regulations Commission of the EEC shall lay down the measures necessary to provide freedom of movement for workers, and to this end shall make The observations submitted by the arrangements to secure for migrant Commission may be summarized as follows: workers aggregation, for the purpose of acquiring and retaining the right to (1) The Commission believes that it can extract two matters of concern from an benefit and of calculating the amount of benefit, of all periods taken into account analysis of the case-law of the Court under the laws of the several countries; (judgment in Case 100/63, Kalsbeek nee that it is necessary within the framework van de Veen [1964] E.C.R. 565; judg­ of Article 177 of the Treaty to refer to ment in Case 4/66, Labots nee Hagen- the Court of Justice of the European beek, Rec. 1966, p. 617 et seq.): it is Economic Community the question necessary on the one hand to avoid de­ whether Regulation No 3, which in this priving the migrant worker of rights case led to the loss of rights acquired which he has acquired outside the ap­ in France, is compatible with Article plication of Community law, and on the 51 of the Treaty', other hand allowing this application to have the effect of giving him through decided to ask the Court to give a accumulation the benefit of advantages ruling to which he is not entitled. Clearly the 'on the preliminary question concerning reference from the Cour d'Appel, the interpretation to be given to Article Orléans, has the object of obtaining from 51 of the Treaty of Rome and to Articles the Court a statement of the scope of 27 and 28 of Regulation No 3 of the the first of these rules in relation to Community concerning social security cases such as the present one. for migrant workers, for the purpose of For this purpose it is a matter of know­ specifying whether this regulation can ing 'what is the influence on the im­ validly deprive a worker of a part of plementation of Articles 27 and 28 of the rights acquired by him in one of the, the following two facts: States of the Community'. — on the one hand, that French legisla­ tion provides for a maximum period of insurance; III — Procedure — on the other hand, that a right to a German pension can be acquired only In accordance with Article 20 of the by taking the French insurance Protocol on the Statute of the Court of periods into account'. Justice of the EEC the plaintiff in the (2) 'The Commission considers that the main action and the Commission of the case-law of the Court leads to the con­ EEC submitted written observations. clusion : However, the applicant has not adopted — that the characteristics of French

legislation do not prohibit the pro in the present case (113 French quarters) portional calculation of the pension —, the amount of the French pension (infra, A); is strictly proportional to the length of — tout that the person concerned suffers the insurance period. It must not differ a loss of rights when the amount de from it under the pretext that the per termined for accounting purposes son concerned has, in addition, com takes into account only those 120 pleted insurance periods in another quarters, corresponding to the maxi

113 X 134 X S _ 113 S 134 it is a question of legislation which re quires a maximum length of insurance The amount thus calculated would have in the calculation of pensions. corresponded to that obtained by the In fact, the very aim or the provisions method of 'direct calculation'. of Article 28 is precisely to take ac The Commission next poses the ques count, in the comprehensive calculation tion whether, on the assumption that the of the pension corresponding to a work person concerned had completed a period ing life spent in several countries, of of insurance in France longer than the legislation in which pensions are not maximum of 120 quarters, the method of strictly proportional to the length of the calculation put forward above would insurance period'. For on the hypothesis have the result of favouring the migrant of absolute proportionality the method worker as compared to the worker who of proportional calculation is unneces had spent his working life only under sary, as that of 'direct calculation'— the French system; relying upon figures which consists in taking account only of in support, it replies in the negative. the legislation of the State in question— (b) It is true that in the present case arrives at the same result.

On lation—a situation which has occurred the one hand 'the implementation of

Article 28 can . . . be effected only by completed the time required, employ observance of the principle that the per ment in another Member State toeing son concerned cannot find himself sub regarded as having the same signific jected to the loss of rights already ac ance for fulfilling the requirement as quired in one of the Member States employment in Germany. He is thus, without having them replaced :by at least as it were, excused from a qualifying equivalent benefits' (cf. judgment in period. Kalsbeek nee van de Veen, loc. cit.). On — On the other hand, in respect of the the other hand it cannot be stated that calculation of the amount of the Ger the applicant would receive a 'higher man pension, the worker derives no aggregate sum in benefits' than would benefit under German legislation be otherwise accrue to him (cf. judgment in cause of Regulation No 3, as com Labots nee Hagenbeek, loc. cit.) if he, pared to the worker who had no need could continue, while benefiting from of French insurance periods to ac the German pension, to receive a French quire rights. In either case the Ger pension calculated without taking into man pension is proportional to the account the German insurance periods. length of the German working life On the contrary, the method used by alone. Equality between these two the defendant institution results in a loss workers is properly observed by the of rights in respect not only of the German institutions. The application French pension—which is obvious—but of the regulation has the sole effect of also of the German pension. making it possible to establish this (c) In support of that argument, the equality'. Commission compares the respective — This equality is destroyed by the situations of two workers who have had method of calculation used by the an identical working life in France of defendant institution.

120 account of French insurance periods. x 113, or approximately only Consequently, this worker 'retains his rights in France and acquires a right 102 quarters). — It would be mistaken to claim that in Germany proportional to 'his Ger man working life, since the calcula this loss of French rights is com tion under each legislation can be pensated by the German pension. In carried out separately'. order to obtain this, the second — The second worker, on the other worker, like the first, has worked and hand, can claim a German pension paid contributions. If his French pen only by virtue of the aggregation pro sion is reduced, 'he partially loses vided for by Regulation No 3. 'But the benefit of his affiliation to the that regulation, whilst allowing his German insurance system'.

CIECHELSKI v SÉCURITÉ SOCIALE ORLÉANS

of the French and German pensions) consequence of migration. It would corresponding to only 123 quarters be paradoxical if the validation of (102 French quarters—cf. preceding insurance periods in one country (in paragraph—and 21 German quarters) this case, Germany) by virtue of consequently he has lost 'in the ag­ aggregation should have as its con­ gregate'. In such a case the -provisions sequence the rejection in the other of Regulation No 3 are intended to country (in the present case, France) prevent the relevant working life of periods which do not coincide from being reduced artificially as a with the former'.

Grounds of judgment

The Cour d'Appel, Orleans, requests the Court to give a ruling 'on the inter­ pretation to be given to Article 51 of the Treaty of Rome and to Articles 27 and 28 of Regulation No 3 of the Community concerning social security for migrant workers, for the purpose of specifying whether this regulation can validly deprive a worker of a part of the rights acquired by him in one of the States of the Community'.

JUDGMENT OF 5. 7. 1967 — CASE 1/67

a contrario that proportional calculation is excluded if, according to the national legislation in question, the right of the insured person is acquired without the need to refer to periods completed by virtue of the legislation of other States. This interpretation finds support in Article 27 (1) which pro­ vides for aggregation only 'for the acquisition, maintenance or recovery of the right to benefit', but not for 'calculating the amount of benefit', the expression used in Article 51 of the Treaty. In fact, that wording seems to limit aggrega­ tion to cases in which it is necessary in order to establish a right to benefit and to exclude it in cases where it would have the effect simply of maintain­ ing or varying the content of a right already acquired by virtue of national legislation alone.

(2) In view of the difficulties of interpretation of these provisions it is neces­ sary to consider them in the light of Articles 48 to 51 of the Treaty which the regulations in the field of social security have as their basis, their frame­ work and their bounds.

CIECHELSKI v SÉCURITÉ SOCIALE ORLÉANS

... as compared with the total length of the periods completed under the legislation of all the Member States concerned'. Thus the power to make a proportional calculation, which is provided for by the above-mentioned pro­ vision, whilst not expressly referred to by Article 51 of the Treaty, is an in­ separable component of the operation of aggregation and necessarily pre­ supposes a prior aggregation.

It follows from the foregoing that aggregation and proportional calculation have no purpose in the case of a Statute in which the result sought by Article 51 is already attained by virtue of national legislation alone. Article 51 cannot (therefore serve as a basis for calculation of the benefit by the competent institution of that State by means of aggregation and proportional calculation.

(3) Having regard, nevertheless, to the complexity of the legislation of Member States and that arising from the provisions of Community law, this principle cannot be regarded as an absolute rule. In particular it can be valid only in so far as its application does not provide the insured person with benefits exceeding those expressly provided for by Article 51 of the Treaty or the regulations adopted in implementation thereof.

The said article is intended to take into account insurance periods which would otherwise be inoperative, but not to allow the insured person to claim benefits relating to one and the same period from the institutions of several States. It is moreover in this spirt that Article 27 (1) of Regulation No 3 provides for aggregation only to the extent to which the assurance periods in question 'do not overlap'. The above-mentioned principle is thus subject to an exception when its application would lead to an accumulation of benefits for one and the same period.

The foregoing considerations taken as a whole lead one to admit that in cases such as the present the institution of a State in which the insured person can qualify without aggregation cannot rely upon Articles 27 and 28 of Regula­ tion No 3 for the purposes of reducing the benefit which it would be required to pay solely upon the basis of its national legislation.

Articles 27 and 28 of Regulation No 3, when interpreted in the manner set out above, are not contrary to Article 51 of the EEC Treaty. In fact, far from prejudicing the rights of a migrant worker, they respect the rights acquired by him in one State whilst granting him the right to qualify for a pension in another State.

The costs incurred by the Commission of the EEC which submitted observa­ tions to the Court are not recoverable and 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 Cour d'Appel, Orléans, the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Articles 48 to 51 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), especially Articles 27 and 28; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

Hammes Trabucchi Monaco

Delvaux Donner Lecourt Strauß

Delivered in open court in Luxembourg on 5 July 1967.

A. Van Houtte Ch. L. Hammes Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 17 MAY 19671