C-28/68

(EEC Treaty, Article 177)

2. Social security for migrant workers — Old-age and death pensions — Aggregation — Application of legislation mentioned in Annex B to Regulation No 3 including non-contributory schemes (Regulation No 3, Article 27, Annex B)

3. Social security for migrant workers — Regulation No 3 of the Council concern­ ing social security for migrant workers — Conventions referred to in Article 6(2)(e) and in Annex D — Scope of Regulation No 3 — Interpretation of the said conventions

Achille TORREKENS, residing at 42 rue des Marins, Bray-Dunes (Nord),

on the interpretation of certain provisions of Regulation No 3 of the Council of the European Communities of 25 September 1958,

THE COURT

composed of: R. Lecourt, President, A. Trabucchi and J. Mertens de Wilmars, Presidents of Chambers, A. M. Donner, W. Strauß, R. Monaco (Rapporteur) and P. Pescatore, Judges,

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

gives the following

held this argument and ordered the The oral submissions of Mr Achille Caisse régionale to pay Mr Torrekens Torrekens, the Commission of the Euro­ the disputed allowance pursuant to the pean Communities and the Government said regulation. of the French Republic were heard dur­ The Caisse régionale appealed against ing the hearing on 25 March 1969. this decision to the Cour d'Appel of The Advocate-General delivered his Douai. This court in its judgment of 8 opinion during the hearing on 25 March October 1963 ordered the parties to 1969. apply to the Administrative Commission on Social Security for Migrant Workers II — Observations submitted set up by Article 43 of Regulation No 3 under Article 20 of for an interpretation of Head 3 of this the Protocol on the regulation and Annex B thereto. Statute of the Court The Caisse régionale appealed to the of Justice Cour de Cassation, which by its judg­ ment of 1 December 1965 annulled the The written and oral observations sub­

JUDGMENT OF 7. 5. 1969 — CASE 28/68

important, since it is mentioned in and from the application of this Protocol so reproduced by Regulation No 3. Al­ as to be able to compare them with the though Annex D does not reproduce all benefits which could accrue to him from the provisions of this Protocol, the appli­ the application of Regulation No 3. cation of which is provided by Article The French Government also points 6(2) of the regulation, they 'form an out that the Court of Justice does not integral part' of it by virtue of Article have to interpret Article 177 itself in this 50 thereof. case. In the grounds of its judgment the The Government of the French Republic Cour de Cassation in fact states that it also confirms the general nature of the is appropriate to suspend its decision question raised by the Cour de Cassation, until the Court of Justice has given a and then points out that the Court of preliminary ruling on the interpretation Justice cannot, in delimiting the content of 'the beforementioned acts of the in­ of the question referred to it, be drawn stitutions of the Community'. Article into applying rules of law to this par­ 177, however, is a provision of the ticular case or decide as to the inter­ Treaty and not an act of an institution of pretation of French national law or the the Community. In any event, in so far legality of national measures. Its powers, as Article 177 is concerned, the Court of which derive from Article 177 and are Justice would only be able to confirm defined by its own case-law, in fact en­ that since the Cour d'Appel did not de­ able it to give a preliminary ruling on the liver its judgment as a court of first interpretation of the Treaty and on the instance, it could ask for a prehminary validity and interpretation of acts of the ruling but was obliged to do so. institutions. It therefore comes to the conclusion that

Justice does not have jurisdiction to determine either the scope or the mean­ The substance of the case ing of the provisions of the Franco- Belgian Protocol of 1948. Nor does it A — The Caisse régionale de sécurité so­ have jurisdiction to determine the bene­ ciale describes first of all in its observa­ fits which would accrue to Mr Torrekens tions the essential features of the AVTS

SÉCURITÉ SOCIALE DU NORD DE LA FRANCE v TORREKENS

and in certain circumstances can be re 46 and 47 of Regulation No 3 apply to covered on death. It can only be paid to the AVTS. persons who are not entitled to a social But apart from that the regulation in insurance pension or to a pension under question does not in its opinion include a special retirement pension scheme and any provisions implying that aggregation is only granted to French nationals and is to be applied to the AVTS. The refer to persons entitled thereto by virtue of ence to aggregation in the 'recitals' of an international convention. It is granted the regulation is not to be regarded as a to persons who in certain circumstances provision for this purpose, as this refer and on French territory have been or are ence is intended to call attention to one deemed to have been gainfully employed of the objectives of the text of another within the meaning of social security authority which is to be reproduced else

On the other hand there can be no tions have been paid during the years question of Articles 27 and 28 applying preceding its payment; in the case of to the AVTS, since: insured persons over 65 years of age it — These articles provide tor aggregation is made up to the amount of the AVTS, of 'insurance periods', that is to say, if it is lower. It is not subject to a means such periods as are defined and taken test or to a condition prohibiting a plur into account as such under the laws ality of benefits and cannot be recovered relating to a contributory scheme from the deceased's estate. It is also under which they have been com granted for foreigners resident in France. pleted. This is the meaning attributed Since 1949 the minimum annual qualify to them in Article 1 which contrasts ing remuneration has been the same for a the expression 'insurance periods' with pension and for the AVTS, contributions the expression 'periods of employ having to be paid in principle in both ment' used in Article 39 with refer

JUDGMENT OF 7. 5. 1969 — CASE 28/68

There system of aggregation is designed to fore the periods which those laws take guarantee. into account are not 'insurance periods' but 'periods of employment'. B — The Commission of the European — Article 27 refers to the concept 'in Communities also begins by describing the essential features of the AVTS. It sured person'. This expression has stresses that this allowance: been used on purpose: in the recitals and in the 'General Provisions' the — is a benefit of a fixed amount; — is subject to certain conditions relat regulation refers to 'wage-earners' or to 'persons'. However as is clear from ing to age, means, nationality, resi the preceding considerations the laws dence and the duration of gainful relating to the AVTS do not apply to employment in France; insured persons and do not refer to — is a non-contributory benefit in the 'an insurable risk arising'. sense that its grant is not directly related to social insurance contribu (b) The Caisse régionale goes on to say that, on the contrary, Regulation No 3 tions paid by the claimant or his excludes by implication aggregation for employer. the purposes of the AVTS. On this It goes on to say, however, that it must be borne in mind: point it must not be forgotten that by virtue of Articles 6(2)(e) and 10(2)— — that the AVTS is not financed by gov supplemented by Annexes D and E— ernment or local authority funds but when this allowance is granted under by social security funds which are provided solely by contributions; this regulation to persons who are not French it is subject to two important — that, although the AVTS is linked to periods of gainful employment and limitations arising out of the application not insurance periods, nevertheless of international agreements or protocols social security contributions must signed by France; it can only be granted if a minimum period of residence in have been paid in respect of some of the years of gainful employment. France has been completed at the date Having expressed these views the Com of the claim and it cannot be paid out side France. mission examines the three principal The effect of these restrictions is to limit questions which in its view are raised by the reference to the Court. considerably the free movement of per sons which the EEC Treaty intends to (a) Whether Regulation No 3 applies to establish by progressive stages.

SÉCURITÉ SOCIALE DU NORD DE LA FRANCE v TORREKENS

many occasions been emphasized by the No 3 relating to 'aggregation' applies Court. to the AVTS The Commission goes on to submit that The Commission first of all draws atten the argument that Article 27 only pro tion to one particular problem concern vides for aggregation of insurance ing the application of Article 27 of the periods in the case of old-age pensions regulation. The fact that insurance and excludes it in the case of allowances periods or periods of employment have for aged wage-earners is based on an been completed in another Member incorrect interpretation of this regulation, State is not sufficient for this article to in particular of Head III, Chapter 3.

The Commission specific details which also apply to Mr concludes its argument by repeating that Torrekens' case. the fact that the AVTS is a non- The Commission then proceeds to contributory scheme has no significance examine the problem of the application in this case. It calls attention to the of Article 27 (1) of Regulation No 3 to arguments put forward elsewhere on this the AVTS. In its view the fact that this point and stresses in particular that there article provides for aggregation of is nothing in Regulation No 3 to justify

Protocol expressly lays down the special expressly provides for the principle of conditions of residence for Belgian aggregation. nationals in order to modify the par­ The Caisse régionale bases its argument ticular provisions of French law which on a mistaken understanding of the reserve the grant of the AVTS to French methods of coordination provided by nationals. In order to meet this require­ Regulation No 3 which are based on the ment the Protocol re-establishes the application of national laws. As soon as principle of equality of treatment of the the laws of a specific Member State are two beforementioned categories of work­ applicable the person subject thereto ers. The question put by the Cour de must obviously comply with the con­ Cassation does not relate to the said ditions which they lay down. But these condition of residence. It has been raised conditions must also be compatible with with reference to the aggregation, not of the provisions of Regulation No 3 which, years of residence but of insurance by virtue of the precedence of Com­ periods, because aggregation is a method munity law, override any national rule of whereby a beneficiary retains rights law which conflicts with it. This is a which he is in the course of acquiring fundamental principle to be applied in which applies independently of his this matter and it is not adversely affect­ nationality. In fact even a French worker ed by Chapter 3 which provides for the might, in order to fulfil the conditions application of several national laws. for acquiring the right to the AVTS, By following the contrary argument the need to have insurance periods com­ conclusion would be reached that the pleted under Belgian law taken into discriminatory provisions abolished by account, to the extent to which of course, the regulation would be revived by and this is the subject-matter of the means of the application of the national dispute, aggregation of periods completed law containing these discriminatory in another State applies to this allow­ provisions. In order to justify an excep­ ance. tion to the precedence of Community The Commission goes on to say that the law it would therefore be sufficient to Caisse régionale answers the question in provide for such an exception in the the negative its argument being that national law. under the Protocol the AVTS is granted Moreover, adds the Commission, if the to Belgian workers under the provisions special nature of the AVTS had justified

an exception to the principle of aggrega No 3 is limited to old-age pensions and tion, this exception would have been laid does not therefore extend to the AVTS down in a provision of the regulation as is contradicted by Annexes A and B of was done in the case of the benefits this regulation, which show that the enumerated in Article 10(2) and listed in authors of this regulation certainly in Annex E to the regulation. In addition tended to extend its scope—in the case this exception would need to have been of France—to 'allowances to aged wage- expressly stated, since, according to a earners' (Annex B, France (g)). rule of construction laid down by the Court, there can be no presumption in D — For the French Government the favour of restrictions on the principles problem in question comes down to the laid down by the Treaty. However it is interpretation of Article 6 supplemented

Belgian nationals who have worked in — the periods defined as insurance France are governed by the Franco- periods or assimilated periods by the Belgian Protocol of 17 January 1948 law of a Member State and completed under this law must be taken into notwithstanding the provisions of Regu account in order to determine the lation No 3. It states that it is impossible to apply the provisions of the said Pro conditions for the period of gainful tocol together with those of Regulation

scheme in question. — an exception to the rules enumerated than that contained in the regulation, by the principal provisions of Regula paragraph (2) of this article provides on tion No 3 cannot be inferred from the the other hand that 'the provisions of fact that an implementing provision of this regulation notwithstanding, the fol this regulation, for the purpose of lowing provisions shall continue to determining the right of claimants, apply . . .'. refers to the provisions of the applic The difference in the wording of these able national law, on the ground that two paragraphs shows precisely that it this law contains such an exception. was the express intention of the authors of the regulation that only the conven C — Mr Torrekens submits that the tions referred to in paragraph (2) are argument of the Caisse régionale that applicable to the matters to which they the scope of Chapter 3 of Regulation refer.

3 The Government of the French Republic points out that the Franco-Belgian Protocol of 17 January 1948 relating to the allowance to aged wage-earners is the only text applicable to the case.

4 It states that this follows from Article 6(2)(e) of Regulation No 3, a provision which refers to Annex D to this regulation in which the said Protocol is mentioned in paragraph 4 under the heading 'Belgium-France'.

5 It argues that it is therefore unnecessary to interpret any other provision of Regulation No 3.

6 It is, however, clear from the very wording of the judgment that the Court has not been asked to interpret the Franco-Belgian Protocol of 17 January 1948 which, moreover, it would have no power to do under Article 177.

7 Furthermore, the considerations which may have led the national court to choose the questions put as well as the relevance which it attaches to them in the proceedings pending before it cannot be examined by the Court.

8 Finally Article 177, which is based on a clear separation of functions between national courts or tribunals and the Court of Justice does not enable the latter to rule on the application of the provisions of Community law.

13 Without making any further distinction Article 3 states that Annex B 'specifies, for each Member State, the social security legislation ... to which the regula­ tion applies'.

14 Annex B, entitled 'Legislation to which the Regulation applies' mentions in letter (g) of the heading 'France' the legislation relating to 'allowances to aged wage-earners'.

15 The effect of the definitions in Article 1(p) of the regulation cannot be to exclude from the field of application of the regulation non-contributory social security schemes.

16 This provision must in fact be read together with subparagraph (r) of the same article.

17 As this subparagraph gives a wide interpretation of 'assimilated periods' there is no reason why the periods referred to in such a non-contributory social security scheme should not be regarded as assimilated periods within the meaning of Article 27.

18 The system of aggregation provided for in Article 27(1) of Regulation No 3 therefore also applies to the legislation mentioned in Annex D whether it establishes contributory or non-contributory schemes.

23 The costs incurred by the Government of the French Republic and by the Commission of the EEC which have submitted their observations to the Court are not recoverable.

Since these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the French Cour de Cassation, 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 observation of Mr Torrekens, the plaintiff in the main action, the Government of the French Republic and 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 the Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 1, 2, 3, 6, 27 and Annexes B and D thereto; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

SÉCURITÉ SOCIALE DU NORD DE FRANCE v TORREKENS

THE COURT

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 25 MARCH 19691

Mr President, earners whose working life does not give Members of the Court, them a right to social insurance benefits under the scheme established in 1930. At The reference for a preliminary ruling the present time the main provisions of which has to be considered today con­ this scheme are set out in the Ordon- cerns the law relating to the social nance of 2 February 1945. According to security for migrant workers. It arises that Ordonnance the beneficiary must be out of the following facts. a French national (except as otherwise Mr Achille Torrekens, a Belgian national provided in bilateral conventions such as resident in France, worked for a period the Franco-Belgian Protocol of 17 of 14 years and 8 months in France. In January 1948). His total income must 1962 he applied (presumably because he not exceed a certain sum and he must had reached the age limit) to the Caisse have completed 15 years of gainful em­ regionale de sécurité sociale du nord de ployment or—in a case such as this —25 la France for the allowance for aged years in France. If he satisfies these con­ wage-earners. ditions he receives payment of a fixed The object of this allowance, which was sum which bears no relation to the dura­ introduced in 1941, is to secure a tion of his gainful employment and the minimum old-age pension for wage- amount of his previous wages. 1 — Translated from the German.