C-11/67

Marcel Couture

on the interpretation of Article 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.) and of Article 30 of Regulation No 4 of the Council of the EEC, on implementation procedures and supplementary pro­ visions in respect of the before-mentioned Regulation No 3 (Official Journal of 16 December 1958, p. 597 et seq.),

THE COURT

composed of: R. Lecourt (President), A. M. Donner, President of Chamber, A. Trabucchi, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

I — Facts and procedure mined in 1960, was not paid to Mr Couture because he was gainfully em­ Mr Marcel Couture, born on 17 July ployed. 1899, a Belgian national resident in In addition the Belgian social security France, was insured as a worker for one institution applied Article 28 (1) (b) of year in Belgium and then for thirteen Regulation No 3 and calculated this years in France. pension on a proportional basis. On 15 May 1960 while he was still On 25 October 1963 the Commission working in France he applied for a d'Appel Spéciale to which Mr Couture pension to the social security institu­ appealed decided that the attitude taken tion at his place of residence in France. by the Belgian social security institu­ This French pension was paid to Mr tion had mo justification in law on the Marcel Couture from 1 October 1960 ground that Mr Couture had not applied and was calculated according to the for a pension before attaining the age proportion which the number of insur­ of 65 and that such an application 'can ance periods completed by 'him in only be made by a claimant of his own France bore to the aggregate of the free will and at his own request'. insurance periods completed by him The Office National des Pensions pour under both Belgian and French legis­ Ouvriers appealed to 'the Commission lation. Supérieure des Pensions which on 5 As soon as the Office National des Pen­ March 1965 upheld the decision of the sions pour Ouvriers, a Belgian social Commission d'Appel Spéciale that Mr security institution, received notice of Couture had not applied for a Belgian Mr Couture's application to the French retirement pension on 1 October 1960. institution, it treated it as an advance It found in addition that, as Mr Couture application for a Belgian pension and had not ceased to be gainfully employed also calculated the part of the pension on that date, he could not be paid any claimed in advance as a proportion of benefit and did not therefore fulfil the the whole of Mr Couture's insurable legal conditions for obtaining a Belgian working life. retirement pension so that 'Article 28 Since a pension granted to an insured (1) (f) of Regulation No 3 is applicable person aged between 60 and 65 years to him'. is reduced in Belgium by 5% for each The Office National des Pensions pour of the years which remain after it is Ouvriers appealed on 20 July 1965 to granted until he attains the age of 65, the Belgian Conseil d'État and asked his pension was therefore reduced by that the before-mentioned decision be 20%, as he was 61 years old in 1960. quashed. In addition under Belgian law a retire­ The Belgian Conseil d'État in its judg­ ment pension is not granted if the bene­ ment of 24 March 1967 referred the ficiary does not undertake to cease to following six questions to the Court of be gainfully employed except on an Justice: occasional basis. First question As a result the Belgian pension, which was fixed at a smaller figure because Does a worker, who completes succes­ the Belgian social security institution sively or alternately insurance periods believed the amount had to be deter­ under the legislation of two or more

legislation of these states which may Sixth question produce a more favourable result? Or must it be interpreted as necessarily If the worker does not have the said involving the application of the most option, is the object of an application favourable system? which he makes in conformity with Article 30 (1) of Regulation No 4 Third question necessarily benefits, payment of which, If an application such as the one de­ in a Member State where he has com­ scribed in the second question must be pleted insurance periods, are subject to interpreted as involving the application the condition, not imposed in the other of the most favourable system, must it Member State, that he must cease to be necessarily be regarded as an applica­ gainfully employed? tion made in proper form to each na­ The judgment of 24 March 1967 served tional social insurance institution with by one Registrar on the other reached the object of obtaining the determina­ the Court of Justice on 21 April 1967. tion of benefits which may be more In accordance with Article 20 of the favourable under the national legisla­ Protocol on the Statute of the Court of tion which this institution is under a Justice of the EEC the parties to the

OFFICE NATIONAL DES PENSIONS v COUTURE

were heard on 17 October 1967. Regulation No 3 'apply only in so far The Advocate-General delivered his as the regulations make it possible to opinion on 8 November 1967. secure for the persons concerned bene fits at least equal in amount to those which they would receive in each II — Observations submit country by virtue of the national legisla ted under Article 20 tion applicable to them, considered of the Protocol on the independently of Regulations Nos 3

Regulation No 3 or the one which Articles 14 and 14A of Regulation No must be adopted if 'the legislative 3 and in Articles 12 and 13 of Regula systems under which he has completed tion No 4 and only refers to the possi his insurance periods apply; on the con bility of opting either to be subject to trary, the possibility of applying the the legislation of his country of employ method of calculation provided for by ment or to that of his country of origin Article 28 of Regulation No 3 is a (or the country where he was last bar to the application of the legislative insured). systems under which he has completed The Court never intended to revive a insurance periods. system no longer in force, the abolition As Mr Couture in fact fulfilled the of which does not conflict with Articles required conditions in Belgium and 48 to 51 of the EEC Treaty. France he could not claim that Article The judgment in Case 10/63 (Kalsbeek, 28 (1) (f) of Regulation No 3 should nee Van der Veen) delivered by the be applied to his case. Under Article Court on 15 July 1964—to the extent 28 (4) of 'this regulation, if the claimant to which it is relevant to this case can invoke the provisions of Chapter 3 where Belgian law has to be considered of Regulation No 3 entitled 'Old-age —stated that the provisions of Regula-

tions Nos 3 and 4 are applicable in so that the right to a pension by pro principle. It is only when it transpires portional calculation is acquired after that the aggregate of the benefits which only one year of insurance (the unit the claimants would receive in each used for calculating pensions). country under the national legislation With regard to Questions 1, 2, 3 and 4 applicable to them, considered inde the Commission takes the view that pendently of Regulations Nos 3 and 130 the insured person does not have the of the Council of the EEC (and after right to elect whether to apply the

The Commission of the European Com ly applicable in all Member States. In munities points out first of all with the opinion of the Commission the reference to the wording of Question 1 social security institutions have never that the Belgian Conseil d'État has in theless a duty with regard to the method mind a situation where the aggregation of calculating old-age benefits, when, of insurance periods is unnecessary in as the Conseil d'État states in its first any of the Member States concerned question, aggregation is unnecessary in order to acquire the right to benefit. for the acquisition of a right to benefit In the present case, however, according in any of the Member States concerned. to the information obtained by the In fact following the judgment in Case Commission, Mr Couture had on 1 100/63 (Kalsbeek, née Van der Veen) April 1960 only completed 54 quarterly delivered by the Court on 15 July 1964

1 October 1960. On the other hand in judgment in Case 100/63. In this case Belgium there is no qualifying period whether the method of proportional

calculation is adopted or not the amount is applying but where insurance periods of the Belgian pension remains the have overlapped, that is to say, where same. Mr Couture has in fact under the benefit relates to 'insurance periods Belgian law alone the right to a pension which have already been used as a which is simply proportionate to the basis for the calculation of the amount period during which he has been in­ of benefit paid 'by the competent institu­ sured and the proportional calcula­ tion of another State' in order to avoid tion of this type of pension has no effect a plurality of benefits covering the same on its amount and produces the same period. result as the said direct method of The Commission, after applying these calculation. To sum up, the Commission decided cases to the present case, con­ takes the view that the answer to cludes that, if the aggregation of the Questions 1 to 4 should be that Regula­ Belgian insurance periods was necessary tion No 3 does not permit the bene­ in order to acquire the right to a French ficiary 'to elect whether to apply this pension, this fact does not justify pro­ regulation or the national legislative portional calculation of the pension in systems and the only consequence of another Member State, in this instance this view is that the application of the Belgium. It is necessary to draw the provisions in question must be effected conclusion that in this case proportional with due regard to 'their proper mean­ calculation of the Belgian pension was ing and does not in every case entail not justified. It is, however, necessary proportional calculation. to bear in mind that in this dispute, During the oral proceedings on 17 as in all cases where the calculation October 1967 the Commission of the of a pension is strictly proportionate to EEC gave its views on the conclusions the duration of the insurance period, to be drawn from the judgments in proportional calculation and the direct Cases 1/67 (Ciechelski) and 2/67 (de method of calculation produce the same Moor) delivered by the Court on 5 result. July 1967, after the Commission had settled its written observations. It con­ B — The fifth question cluded from the decisions in 'the before­ mentioned cases and the judgment of The Belgian Government takes the 15 July 1964 in Case 100/63 (Kalsbeek, view that the object of the pension nee Van der Veen) that proportional application made by Mr Couture was calculation of a pension payable by an necessarily the benefits which, in one institution of one Member State is only State in which he has completed admissible in two cases. The first case insurance periods, are reduced because arises when' the right to a pension pay­ the application for them was made in able by 'the institution is not acquired advance. solely on the basis of the insurance The Office National des Pensions pour periods completed under the legislation Ouvriers merely states that in its which it is applying and it is thus opinion this question should be answer­ necessary to resort to the aggregation ed in the affirmative.

tions for pensions, to rationalize and he has applied in another Member expedite their determination, and which State (in this case France) for the applies when pensions are determined determination of the pension to which simultaneously in various countries but he is entitled under the legislation of which is not intended to determine in this second state. It pointed out that which case they must be determined in its judgment in Case 9/67 (Colditz) simultaneously. In conformity with the of 5 July 1967 the Court held that before-mentioned opinion the question 'Article 28 of Regulation No 3 to arises whether the provisions of Article gether with Articles 30 to 36 and 83 28 (1) (e) and (f) do not permit an of Regulation No 4 does not imply interpretation implying, on the con the simultaneous payment, one the 'basis trary, the successive determination of the same reference date, of a pension of 'benefits at the request of payable in one Member State without

The fact that the worker application of the regulations. In the applies for a pension in a country where present case the simultaneous deter account has to be taken of insurance mination of pensions in different coun periods completed in another country tries would lead, as it did in Case does not necessarily mean that the same 9/67, to such a loss of rights, since the application can be used for the calcula insured person would be deprived of tion and determination of the pension the right to obtain a pension at the in that other country where it is not normal rate on reaching the normal in his interest to apply for 'his pension retirement age (65) and for this reason at the same time.

has the power to determine automati of the other state. cally a worker's pension, although he In the opinion of the Office National has not applied for it, just because des Pensions pour Ouvriers this ques-

Grounds of judgment

By judgment of 24 March 1967 which reached the Court Registry on 21 April 1967 the Belgian Conseil d'État has referred to the Court for a pre­ liminary ruling under Article 177 of the EEC Treaty a request for the inter­ pretation of Article 28 of Regulation No 3 of the Council of Ministers of the EEC and of Article 30 of Regulation No 4 of the said Council.

This request for interpretation raises the preliminary question whether the before-mentioned Articles of Regulations Nos 3 and 4 must be construed as conferring upon a migrant worker in certain circumstances 'the right to elect either the method of calculation provided by Article 28 or the method of calculation resulting from the application of the legislation under which he has completed the insurance periods'.

The subsequent questions deal essentially with the question whether an application for a pension made in one Member State automatically implies, even though contrary to the wishes and interests of the worker concerned, an application for and the determination of a pension in the other Member States.

JUDGMENT OF 12. 12. 1967 — CASE 11/67

The request for an interpretation seems to have been formulated by the Conseil d'État on the assumption that a migrant worker, who has completed insurance periods in various Member States, does not have to resort to aggregation in any of these States in order to acquire the right to benefit.

Article 51 of the Treaty is essentially intended to cover cases in which the legislation of a Member State does not by itself confer on the person con­ cerned a right to benefit because he has not completed a sufficient number of insurance periods under that legislation. To this intent it provides, for the benefit of a migrant worker who has been successively or alternatively subject to the legislation of several Member States, that the insurance periods com­ pleted under the legislation of each of the Member States shall be aggregated. It follows from the foregoing that the provisions of Articles 27 and 28 of Regulation No 3 only apply in certain specific cases and that they have no application in the case of a Member State in which the objective sought by Article 51 is achieved by virtue of national legislation alone. At least under those systems based on insurance periods, under which the amount of a retirement pension varies in proportion solely to the insurance periods which have been completed, these provisions do not apply to a migrant worker who does not have to resort to the aggregation of insurance periods in order to acquire the right to benefit in any of the Member States in which he has completed insurance periods.

OFFICE NATIONAL DES PENSIONS v COUTURE

The fact that a migrant worker has to aggregate insurance periods in a Member State in order to be granted in that state the old-age pension which he claims does not imply that old-age pensions in other Member States must be determined simultaneously, since tie duty to determine pensions simul­ taneously in the other Member States is not prescribed in any of the relevant provisions. Such a requirement cannot, in particular, be found in Article 30 of Regulation No 4 which is merely a procedural provision for the purpose of simplifying administration where pensions are determined simultaneously, but which cannot stipulate simultaneous determination.

JUDGMENT OF 12. 12. 1967 — CASE 11/67

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 Articles 48 to 51 and 177 of the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, 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.), and especially Articles 14, 14A, 27 and 28; Having regard to Regulation No 4 of the Council of the EEC on implementing procedures and supplementary provisions in respect of the said Regulation No 3 (Official Journal of 16 December 1958, p. 597 et seq.), especially Articles 12, 12A, 13, 30 to 36 and 83; Having regard to the Rules of Procedure of the Court of Justice of the Euro­ pean Communities,

THE COURT

in answer to the questions referred to it for a preliminary ruling by judgment of 24 March 1967 of the Belgian Conseil d'État, Administrative Law Division, 6th Chamber, hereby rules:

I. The application to a migrant worker of the provisions of Articles 27 and 28 of Regulation No 3 does not depend upon the free choice of the person concerned but upon his objective situation;

Lecourt Donner Trabucchi

Monaco Mertens de Wilmars

Delivered in open court in Luxembourg on 12 December 1967.

A. Van Houtte R. Lecourt Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 8 NOVEMBER 19671