C-12/67

JUDGMENT OF THE COURT 13 DECEMBER 19671

Jules Guissart v Belgian State (Reference for a preliminary ruling by the Belgian Conseil d'État)

Case 12/67

Summary

1. Free movement of persons — Migrant workers — Old age and death (pensions) insurance — Calculation of benefits — Application of the system provided for by Articles 27 and 28 of Regulation No 3 — The beneficiary's objective situa­ tion to be considered

2. Free movement of persons — Migrant workers — Old age and death (pensions) insurance — System based on insurance periods — Amount of retirement pen­ sion varying solely according to insurance periods completed —7 Right to a pen­ sion acquired by a claimant without aggregation of completed periods — Articles 27 and 28 of Regulation No 3 not applicable

Jules Guissart, plaintiff,

and

BELGIAN State, represented by the Ministre de la Prévoyance Sociale (Minister for Social Security) (Caisse Nationale des Pensions pour Employés), defendant,

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.),

THE COURT

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

GUISSART v BELGIUM

of 65 years, he gave up his employment 1957 issuing a general regulation con­ and submitted an application for a pen­ cerning the system governing retire­ sion to the institution of his place of ment pensions and the rights of the permanent residence which was situated survivors of employees, according to in Belgium. which insurance periods of less than 200 The Belgian Conseil d'État states that days or eight months per annum are this application led to the payment of not taken into consideration, periods of a pension in Luxembourg calculated 200 days or more, on the other hand, pro rata at 76 416 BF, an amount which counting as a complete year. was less than the sum of 84 240 BF Mr Guissart referred the decision of the which he would have been able to Ministre de la Prévoyance Sociale to claim, without the application of Regu­ the Commission d'Appel Spéciale, with lation No 3, in respect of the 216 the request not that all the actual in­ months completed under the Luxem­ surance months foe taken into account, bourg legislation. but that the Belgian pension be cal- 27 The Commission of the European Com­ culated on the proportion of munities states that these two sums amount to 55 994.34 BF and 63 326.72 He based his claim on Article 11 (1) BF respectively. of the Law of 12 July 1957 and Article The effect of this pro rata calculation 10 of the above-mentioned Royal De­ was to reduce the amount of the Luxem­ cree of 30 July 1957—according to bourg pension, since the pension in­ which employees who attain the age at cludes a fixed sum of 15 000 BF which which they acquire a right to a pension is not proportional to the length of in­ before 31 December 1961 and who surance. can show evidence of 12 years of in­ Following this application of 1 July surance during the 15 years preceding 1961, the Belgian Ministre de la Pré­ the first payment of the pension are voyance Sociale (the Minister for Social deemed to have completed the full in­ Security) in pursuance of Article 28 (1) surance period of 45 years—in order to (b) of Regulation No 3 granted Mr maintain that the denominator of the

which therefore amounted to 145/361 sts of volving the application of the most favourable system? 49 200 BF, namely 19 760 BF per annum at 1 July 1961. Third question Mr Guissart appealed against the de­ If an application such as the one de­ cision of the Commission Supérieure des scribed in the second question must be Pensions to the Belgian Conseil d'État, interpreted as involving the application which referred the following four ques­ of the most favourable system, must it tions to the Court by judgment of 24 necessarily be regarded as an application March 1967. made in proper form to each national social insurance institution with the First question object of obtaining the determination of Does a worker who has completed suc­ benefits which may be more favourable cessively or alternately insurance under the national legislation which this periods under the legislation of two or institution is under a duty to apply, more Member States and who does not rather than a claim based on the ap­ have to aggregate these periods in order plicability of the system of proportional to acquire the right to benefit in any calculation provided for by Regulation of these Member States have the right No 3? to elect either the method of calculation provided by Article 28 of Regulation Fourth question No 3 or the method of calculation re­ If the worker has the option which is sulting from the application of the legis­ the subject-matter of the first question lation under which he has completed and if an application such as the one the insurance periods or does the fact described in the second question must that the method of calculation provided be deemed to be made to each national by Article 28 of Regulation. No 3 may institution so that, where appropriate, be applicable to him exclude the ap­ the legislation of each of the States is plication of the legislative systems under applied, when must he exercise his which he has completed his insurance option? Can he wait for a final deter­ periods? mination, that is to say, until all legal remedies have been exhausted or not Second question exercised, of the claims which he has If the worker has the option which is under both Article 28 of Regulation No the subject matter of the first question 3 and the various national legislative and, having regard to the fact that systems? Regulations Nos 3 and 4 do not lay The reference for a preliminary ruling down rules for the exercise of this was received at the Court Registry on option, how must a pension application 21 April 1967. made to the competent social insurance In accordance with Article 20 of the

pean Communities were heard on 17 the European Communities observes October 1967. that, in the opinion of the Conseil The Advocate-General delivered his d'État, the aggregation of the insurance opinion at the hearing on 8 November periods was not necessary in order to 1967. acquire a right to benefits in any State. However, in order to be able to bene II — Observations submit fit under Belgian legislation alone from ted under Article 20 a pension corresponding to 45 insurance of the Statute of the years, an insured person must show Court evidence of 12 insurance years during the 15 years preceding the first pay The Belgian Government makes the pre ment of the pension. As the worker

45 of 49 200 BF, or 29 520 be applicable to him excludes the ap plication of the legislative systems under BF per annum. which he has completed his insurance As regards 'the first section of Question periods. In fact, as the insured person 1, if, as the Conseil d'État states, aggre satisfies the conditions required both in gation was unnecessary in order to con Belgium and in the Grand Duchy of fer a right to benefit, one can but apply Luxembourg, he may not have recourse the case-law of the Court in its judg to the application of Article 28 (1) (f) ment of 15 July 1964 in Case 100/63 of Regulation No 3.

in question. To accept any contrary surance years, the entire fixed portion; reasoning would be to render the pro — the complete pension or 45 years visions of Article 28 (3) of Regulation or 49 200 BF in Belgium, since No 3 superfluous. under the Belgian legislation he was As regards the wording of the first sec regarded as having completed 12 tion of Question 1, the Commission of insurance years.

(11/28 or 145/361) was based oleyonthe remains in Belgium and which, added to the 12 years of actual insurance, give 27 years under Belgian legislation. Therefore, actual insurance Mr Guissart claims, the Belgian proportion periods. for The accounting purposes took into as of the pension must amount 27/45 X 49 200 BF, or 29 520 BF per account transitional provisions in the Belgian legislation but the proportional fraction to annum. The

amount Commission did not do so. On the contrary, during states that by means of a correct all the stages of the procedure which pro rata calculation the insured person would took place before the Belgian courts, have received exactly the sum to Mr Guissart had requested that which he was entitled through the application the Belgian proportion of the pension of the relevant Belgian legislation alone be calculated on the basis if he had completed the 18 of insurance years in question in Belgium rather fraction 27/45, the figure of 27 the (45—18) than in Luxembourg and provided from the deduction of the that he satisfied the requirement of 18 years completed in Luxembourg. The 12 years in the pension scheme for

resulting conclusion, justification for Mr Guissart's claim—which employees. In he was unable to discover the Commission is of the opinion himself—is the obligation, both when that the reply to the first section of calculating the sum for accounting purposes Question 1 and to Questions 2 and and when making the 4 must be that Regulation No 3 430

GUISSART v BELGIUM

unnecessary to make a pro rata cal a plurality of benefits covering the culation in every case. same period. The Commission considers that the The Commission, after applying these reply to the question appearing in the decided cases to the present case, con wording of the second section of the cludes that aggregation was not first Question put by the court referring necessary in order for a right to a the matter must be that the method pension to be acquired in Luxem of calculation provided for in Article bourg. 28 of Regulation No 3 must adopt the This finding is without practical effect, same number of years in calculating the since the fact that aggregation was amount of the pension for accounting necessary in Luxembourg cannot alone purposes as in making the pro rata justify the pro rata calculation made in calculation, namely all the insurance Belgium.

Case 100/63 (Kalsbeek, née Van der although legally Mr Guissart may only Veen) that proportional calculation of a claim 11. pension payable by an institution of The minimum period of 12 years was one Member State is only admissible thus attained only by means of aggre pro rata in two cases. gation of the periods completed in The first case arises when the right to Luxembourg. a pension payable by the institution is However, by reason of an overlap be not acquired solely on the basis of the tween the Belgian and Luxembourg insurance periods completed under the insurance periods, the question whether legislation which it is applying and it aggregation was necessary in Belgium is thus necessary to resort to the is not conclusive in this instance.

JUDGMENT OF 13. 12. 1967 — CASE 12/67

Thus, if no pro rata calculation were made, to the pension is acquired in Belgium the worker concerned would receive without aggregation of the periods a plurality of benefits in respect of completed in other Member States, that the same period. is to say, if the person concerned is The, reduction in the Belgian pension regarded as having actually completed is therefore justified, even if the right 12 years of insurance in Belgium.

Grounds of judgment

By judgment of 24 March 1967, received, at the Court Registry on 21 April 1967, the Belgian Conseil d'État, Administrative Law Division, 6th Chamber, referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Article 28 of Regulation No 3 of the Council of Ministers of. the EEC.

The first question in this request for interpretation is whether the above­ mentioned Article 28 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 appli­ cation of the legislation under which he has completed the insurance period'.

It is clear from the terms of the three subsequent questions that this request concerns in particular the question whether, and to what extent, social security institutions are empowered: (1) in pursuance of Article 28 of Regulation No 3, to calculate pro rata the pensions which they grant by virtue of the legis­ lation which they apply; and (2) in the case of a migrant worker who does not require aggregation in any Member State in order to acquire a right to benefit, to deduct from the notional periods with which the legislation applied by them credits the person concerned those periods which have already been employed in determining the amounts of other pensions in other Member States.

Moreover, the option is restricted to a choice between the legislation of the country of employment and that of the country of origin.

The application of the system established by Articles 27 and 28 of Regulation No 3 depends therefore only on the objective conditions and circumstances in which the migrant worker concerned is situated.

As regards questions 2, 3 and 4

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.

However, the complexity of the problems posed by the co-ordination of national legislative systems prevents this interpretation from becoming an absolute principle. In certain circumstances it might lead to the grant of un­ justified advantages which the national legislature may wish to avoid. This might be the case where, as in this instance, benefits in respect of insurance periods actually completed in one State are payable in relation to one single period at the same time as benefits in respect of notional periods in another Member State. In these circumstances it must be permissible for a State whose legislation provides for notional periods in favour of the insured person to deduct from such periods the periods actually completed in another Member State, without its being possible to consider this procedure as con­ trary to Article 51 of the Treaty. However, it is for the national authority to which the social security institution is responsible, and not the Community authority, to decide on this on the basis of its own legislation.

On the other hand, as the Commission suggests, in the case of a migrant worker who has had to aggregate periods completed abroad in order to acquire a right to benefit, Articles 27 and 28 of Regulation No 3 apply.

Costs

The cost incurred by the Commission of the European Communities, which has submitted observations 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 Belgian Conseil d'État, the decision as to costs is a matter for that court.

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 on his objective situation; 2. At least in those systems based on insurance periods under which the retirement pension varies in proportion solely to the insurance periods which have been completed, Articles 27 and 28 of Regula­ tion No 3 do not apply to a migrant worker who, in order to acquire the right to benefit, does not have to resort to aggregation in any of the Member States in which he has completed insurance periods;

3. The decision as to costs is a matter for the Belgian Conseil d'État.

Lecourt Donner Trabucchi

Monaco Mertens de Wilmars

Delivered in open court in Luxembourg on 13 December 1967.

A. Van Houtte R. Lecourt