C-18/67

In Case 18/67

Reference tothe Court underArticle 177of the EEC Treaty by the Belgian Conseil d'État for a preliminary ruling inthe action pendingbefore that court between

ARGIA PAGOTTO (NÉE COSSUTTA ),the widowof Giuseppe Pagotto,

and

OFFICENATIONAL DESPENSIONS POUR OUVRIERS ,Brussels,

on theinterpretation of Article 28 (1) (b) of RegulationNo 3 and Article 13 (4) of Regulation No 4 ofthe Council ofthe EEC, concerning social security formigrant workers,

JUDGMENT

Issues of fact andof law

I — Facts and procedure ceasedhad not—even by aggregation— been employed for at leasthalf of the Thefactsmay be summarized as fol­ period from 1January 1926 to the date lows: ofdeath. Mrs Pagotto, theplaintiff in the main Furthermore, on the basis or Article 13 action, is thewidow of aworker who (l)(c) ofRegulation No 4 ofthe Coun­ died on17 July1960 havingbeen in­ cil, theCommission d'Appel deducted sured asa wage-earner inItaly, Ger­ fromthose eight years,or 96 months, many and Belgium. the 42months of insurance in Germany With regard to Belgium, Mrs Pagotto which the deceased had effected during made anapplication for a pension to assimilated insurance periods in Belgium the OfficeNationaldes Pensionspour and thusawarded 54/96ths of a Belgian Ouvriers (National Workers'Pensions pension corresponding to eight years of Office), which was refused bya minis­ insurance inBelgium. terialdecision of12 February 1963. Following an appeal againstthis decis­ On appeal by MrsPagotto, theCom­ ion by theOffice National des Pensions mission d'AppelSpéciale (SpecialAp­ pourOuvriers, the Commission Supér­ peals Commission) recognized that the ieuredes Pensions on 27 May 1966 re­ insuredperson had workedinBelgium vised thecontested decision and award­ for eightyears (1927, 1940 to 1945and ed MrsPagotto a survivor's pension of 1959) and by adecision of10 July BF 1085. This reduction in the amount 1964granted to MrsPagotto a sur­ payable by theBelgian institutions is vivor's pensionof BF5 189. TheCom­ due essentiallytothe fact that, for mission took as the basisofits calcula­ reasons pertainingto the Belgian legis­ tion anannual pensionof BF18 450 lation, thenumber of years of insurance corresponding to thoseeight yearsbut which the deceasedwas recognized to based its calculation ononly half that have completed was reduced to two figure, inapplication of Article 13 (2) (1927 and1959). of the Belgian Law of21 May1955, The. Commission Superieure considered, relating to retirement andsurvivors' moreover, that theamount of the pen­ pensions, andofArticle 11ofthe Royal sion shouldbe calculatedin accordance Decree of17 June 1955, implementing with Article28 (1)(b) of Regulation No that Law,on the ground thatthe de­ 3 of theCouncilofthe EEC, by virtue

of which Belgian legislation is appli sured personhas completed insurance cable; that, inaccordance with the terms periods?If the answer is in the affirma ofArticle 8of theLawof 21 May 1955 tive,whatshould that unit be? and of Article 6 of the RoyalDecree In its order making the reference,the of 17June 1955, referred to above, the Belgian Conseil d'Étatconsiders that reference period mustbe determined (by Article 13 (4) of RegulationNo 4 of the year andnot by the month,as had theCouncil of theEEC establishes the been done by theCommission d'Appel methodof conversion of insurance Spéciale; thatthe rulefor conversion periodscompleted under the legislation ofinsurance periodsunder domestic ofone Member State into insurance legislation into insurance periods under periods within the meaning of the legis the legislation of another countryis de lationof otherMember States,but that termined by the provisions ofArticle 13 this provision goes no further. of RegulationNo4; and that, incal Theabove-mentioned requestwas re culating the pro ratafractionfor Bel ceivedat the Court Registry on 19 May gium by the monthand notby the 1967. Only theCommission of the Euro calendar year, the said Commission peanCommunities submitted astate d'Appel incorrecdyapplied Article 13. mentof case(on 27 July 1967) under The plaintiff requested theBelgian Con Article20 of the Statute of the Court seil d'Etatto annul this decisionby annexedto theEEC Treaty. takinginto account, byway ofBelgian During the oral procedure the Commis insurance, 449 weeklycontributions, be sion oftheEEC presentedits explana ingequivalent to eight yearsand seven tions in further detail. and ahalf months.

Court ions to the unit ofcalculation inthe country taking the smallestunit. Theobservations ofthe Commission Asthe BelgianConseild'État con maybesummarized as follows: sidered thatthe calculationofthe 1.The BelgianConseil d'Etat poses the periods to be takeninto account inde questionhow annual insurance periods, terminingthe workinglife of the de as calculatedunder the Belgian Law, ceased depends onthe unitof timeused may be inserted into the total period in this connexion and thatthis entailed of employment of a worker who has an interpretation ofArticle 28 (1)(b) of effectedinsurance periods in a country Regulation No 3, on which the parties (inthiscase Germany) in which the were opposed,it suspended proceedings unitof computation in respect of the by order of 11 May1967 and referred insuranceperiod to be taken into ac tothe Court of Justice of the European count isone month. Communities the following questions: Inorder to resolvethis problem, two 'Whenapplying Regulation No 3, pointsmust betakeninto account, first should the denominator ofthe fraction that theinsurance period of one year used in pro rata calculations be deter usedby Belgian legislationmay in real mined byreference to the sameunit of ity correspondto periods of actually time in every countryin which thein less thanoneyear (down to a minimum

of 185 days) inthe working life of the itis appropriate to take into account person insured, andsecondly that dur the total number of years thusob ing the samecalendar year the worker tained. Each calendar year during mayhave beenemployed for a certain which at least 185 days have been timein another Member State. aggregated must be considered as a The Commission makes a distinction completeyear. between calendar yearsduring which (b)For the pro rata calculation, if re the worker issubject to Belgianlegisla course to aperiod completed in tion alone andthose duringwhich he is anotherMember State has been also subject to thelegislationof other necessary in order to reach the re Member States. quired185 days and to cause a (a) In the first case, there ishereno Belgianperiod of one year to start questionof interpretation relatingto to run,that periodof one year

EEC. Inthis case, whenthe person on the contrary,itshould be calculated concernedhas completed inBelgium pro rata byusing the number of actual the 185 working days requiredun months completed in Belgium as the der Belgian legislation, the insurance denominator. As the worker has com periodto betaken intoaccount is pleted periods abroad in respect of one year. To take intoaccount not which hereceives a fraction of the pen the insurance year(12 months) but sion,to granthim a fraction of the the actual lesser period would lead Belgian pension covering a year would, to amodification of Belgian legisla according to the Commission, be tanta tion, whichwould be incompatible mount to grantinghim a benefit relating with Article 51of the EEC Treaty. to periods which have already been (b) In the secondcase, no insurance taken intoaccount in calculating the period can betaken intoaccount by amount of the benefits paid by the com Belgianlegislation where,on aggre petent institutions of another State, gation, in the same calendar year,of which has been precluded by the Court theperiods completed inBelgium inits judgment in Case 1/67. andthose completed inother States, Finally,where the person concerned has the personconcerned does notcom completed185 days in Belgium but has pletethe 185days of insurance re workedfor less than one yearin allin quired by Belgian legislation. the two countries in question,for ex However, when aworker hascompleted ampleeight months in Belgiumand two the185 daysrequired underBelgian months in Germany,the Commission legislation, either inBelgium aloneor considersthat it is necessaryto take as by aggregation,the situationis asfol thenumerator the full unit less any lows: periods actually completed in the other (a) Inorder to determine the benefit to country. whichthe person concerned would Inthis case, the Commission statedin havebeen entitledif he had spent itsoral observations, however, that the his whole working lifein Belgium onlyquestion of interpretation of Com (calculationfor accounting purposes) munity lawwith which thenational

However, the main question raised in thiscase inrespect of the interpreta­ tion of Community regulationsconcerning socialsecurity for migrant workers bears uponthe way in which insurance periodsmust becounted to determine the pensionof aworkerwho has been employed in differentcountries when the unitsused in thosecountries for such calculations are different. The necessityto makeuse ofhomogeneous unitsfor such computation purposes must bereconciled with the requirementthatthe reference unit adopted by any MemberState to assessinsurance periods in that State should be re­ spected. Thisrequirementmeans in particularthat, for thepurposes of establishing the rightto apension inone Member State and of determining theamount thereof, it isnot possible totake into account insurance periods completedin that State,which,even after aggregation with periods completed in other MemberStates within each relevantunit oftime, are shorter than the period adopted bythe legislation ofthe first State.

Butthis requirementcannot rule out thepossibility of converting this period into anotherunit of time, for the purposesofcompensatory calculations

JUDGMENTOF30. 11. 1967 — CASE 18/67

necessary to avoid duplication ofone and the sameperiod, which is theoretical in respect of oneMember State buthas actually beencompleted in another MemberState, suchperiod being, however, countedin different units of time.

Therefore, the fraction usedin such a casefor pro rata calculationsshould haveits denominator and numerator determined according to thesame unitof timefor all the countriesconcerned, and this unit of time must be that of the State having theshortest insurance period, whenthis period is a fraction of the otherperiod.Otherwise,this unit must bea multiple common to the various units oftime in question.

I. Whenperiods assimilated to insurance periods under the legislation ofone Member State overlapinsurance periods actually completed

PAGOTTO v OFFICENATIONAL DES PENSIONS

in another Stateand givinga right in that State to a pension, and whenthe unitsof timeadopted by thelegislation of these States are different, it is necessary, asregards both the denominator and the numerator of thefraction for prorata calculations,to convert these unitsinto the smallest ofthe unitsoftime adopted by the States concerned whenthis smallest unit isa fraction of the other, or, in default thereof, toconvert these units intoa common multiple;

2. It is for the Belgian Conseild'Etat todecide on costs in the present case.

Lecourt Dornner

Trabucchi Monaco Mertens de Wilmars