C-26/71
ECLI:EU:C:1971:104
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JUDGMENT OF THE COURT 10 NOVEMBER 1971 1
Heinrich Gross
v Caisse Régionale d'Assurance Vieillesse des Travailleurs Salariés de Strasbourg (Reference for a preliminary ruling by the Commission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole du Bas-Rhin)
'Old-Age Pension'
Case 26/71
Summary
1. Social security for migrant workers — Old-age pensions — National legislation — Different kinds of benefit — Entitlement to benefit of a more advantageous kind — Aggregation of insurance periods completed in several Member States (Regulation No 3 of the Council, Article 27)
2. Social security for migrant workers — Old-age pensions — Aggregation of insur ance periods completed in several Member States — Pro rata calculation — Account to be taken of periods in fact completed (Regulation No 3 of the Council, Article 28)
1. Where the legislation of a Member to entitle him to benefit of the more State provides for old-age benefits of advantageous kind. different kinds, depending on the 2. Where aggregation is necessary, for length of time for which the worker the purpose of calculating the frac concerned has been affiliated, insur tion of the benefit to be borne by the ance periods completed successively relevant institution account must be or alternately in two or more Mem taken of the periods in fact comple ber States must be aggregated where- ted by the worker concerned, and not ever the worker has not completed merely those representing the total re the number of periods necessary un quired in the State in question for der the legislation of the first State entitlement to full benefit.
In Case 26/71
Reference to the Court under Article 177 of the EEC Treaty by the Com mission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole du Bas-Rhin sitting in Strasbourg, for a prelimi nary ruling in the action pending before that court between
1 — Language of the Case: French.
JUDGMENT OF 10. 11. 1971 — CASE 26/71
Heinrich Gross, residing in Mullheim (Federal Republic of Germany), and
CAISSE Régionale D'ASSURANCE VIEILLESSE des TRAVAILLEURS SALARIÉS de Strasbourg,
on the interpretation of Articles 27 and 28 of Regulation No 3 of the Council concerning social security for migrant workers,
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore (Rapporteur), Judges,
Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure On 11 May 1970 Mr Gross applied to the Commission de Procedure Gracieuse Heinrich Gross, a German national born et de Remise des Dettes of the Caisse on 11 August 1904 and residing in Regionale d'Assurance Vieillesse des Mullheim (Federal Republic of Ger Travailleurs Salaries in Strasbourg con many), successively completed 145 quar testing the application of Regulation No terly insurance periods in Germany and 3 to his case and requesting the award 50 quarterly insurance periods in France. of his entidement on the sole basis of On 30 April 1969 he submitted to the payments made by him in France. Bundesbahnversicherungsanstalt (Federal The said Commission rejected his ap Railways Insurance Institution) in Karls plication by decision delivered on 29 ruhe a claim for the award of his en June 1970 and notified to Mr Gross on titlement under French old-age insur- 22 July 1970. ance Mr Gross instituted proceedings against On 2 April 1970 he was informed of a this decision on 5 September 1970 be decision of the Caisse Regionale d'Assur fore the Commission de Première In ance Vieillesse des Travailleurs Salaries stance du Contentieux de la Sécurité de Strasbourg, dated 15 December 1969, Sociale et de la Mutualité Sociale Agri whereby he was granted the benefit of cole du Bas-Rhin in Strasbourg. an old-age pension calculated in ac After hearing argument on 31 March cordance with the French Code de la 1971, the said Commission decided on Sécurité Sociale and Articles 27 and 28 28 April 1971 to request the Court of of Regulation No 3 concerning social Justice, in accordance with Article 177 security for migrant workers. of the EEC Treaty,
GROSS V CAISSE D'ASSURANCE VIEILLESSE DE STRASBOURG
'to give a preliminary ruling on the Community law on freedom of move interpretation of the legal provisions ment for workers. Instead of obtaining, relied on by the parties and, more like any French insured person, 50/120 particularly, to state whether, not of his pension, he was allowed, under withstanding the rules in force Articles 27 and 28 of Regulation No 3, (Articles 27 and 28 of Regulation No only a reduced amount of 50/195, which 3 and Article 51 of the Treaty of constituted an unjustified reduction of Rome), migrant workers must occupy his acquired rights. a privileged position as compared with The Caisse Regionale d'Assurance Vieil nationals of the State in which they lesse des Travailleurs Salaries de Stras are working.' bourg, the defendant in the main action, This decision was lodged at the Court points out that the fraction of the French Registry on 8 June 1971. pension payable to Mr Gross was awarded: In accordance with Article 20 or the Protocol on the Statute of the Court of — first, in accordance with the Order Justice of the EEC, written observations of 19 October 1945, which takes ac were lodged on 6 July 1971 by the count of the average annual earnings plaintiff in the main action, on 21 July over the previous 10 years of affilia 1971 by the Commission of the Euro tion, of the percentage corresponding pean Communities and on 2 August to the age reached at the date when 1971 by the defendant in the main the pension becomes payable and of action. the duration of insurance in France; Having heard the report of the Judge- — secondly, in accordance with Regu Rapporteur and the views of the Ad lations Nos 3 and 4 concerning social vocate-General the Court decided to security for migrant workers, which open the oral procedure without any provide for the aggregation of insur preparatory inquiry. ance periods completed in two or The Commission presented its oral ob more States of the Community, the servations at the hearing on 6 October determination of the amount for ac 1971. counting purposes of the benefit to The Advocate-General delivered his which the person concerned would opinion on 13 October 1971. be entitled if all his insurance In the procedure berore the Court, the periods had been completed exclu plaintiff in the main action himself sub sively under French legislation and mitted observations, the defendant in the calculation of the French portion the main action was represented by its pro rata with the periods completed Assistant Director, Paul Kuntz, and the in France as compared with the total Commission by its Legal Adviser, Italo duration of insurance periods com Telchini. pleted under the legislative systems of all the Member States concerned.
II — Observations submit In pursuance of those provisions, ted to the Court account was taken of the following factors: The written and oral observations sub — basic annual wage (average annual mitted to the Court may be summar wage coresponding to the contribu ized as follows: tions paid during the last 10 years of Heinrich Gross, the plaintiff in the main insurance completed before the age action, is of the opinion that the way of 60 or before the age taken as the in which the Caisse Régionale de Stras basis for the award, if this method bourg has calculated his old-age pen of calculation is more advantageous): sion conflicts with the principles of FF 14 866.19;
JUDGMENT OF 10. 11. 1971 — CASE 26/71
— percentage (for insured persons who aceptable since it does not take account have contributed for at least 30 years of Regulations Nos 3 and 4. the pension is equal to 20% of the Article 51 of the EEC Treaty provides basic annual wage; where the in for aggregation of all periods taken into sured person requests the award of account under the different national his pension after the age of 60 this legislative systems for the purpose both pension is increased by 4% of the of acquiring and retaining the right to basic annual wage for each year after benefit and of calculating the amount of that age): 20 + (5 × 4) = 40%; benefit.
There is no reason to suppose — the formula tor calculating the old- that this rule enables aggregation to be age pension acquired over 30 years foregone where it is not in the insured's is as follows: interest or that it is intended to ensure that migrant workers are treated more 14 866.19 × 40 = FF 5 946 47. favourably than nationals of the coun 100 tries in which they are working. All international agreements give foreigners — on the basis of contributions paid in the same rights as nationals but they France alone the applicant could not cannot put the former in a privileged claim the right to a full old-age position. pension, but having made contribu It also emerges from Article 27 and 28 tions in respect of 145 quarterly of Regulation No 3—adopted in pur insurance periods in Germany, in suance of Article 51 of the Treaty—that addition to the 50 quarterly insur aggregation of insurance periods com ance periods in France, he is entitled, pleted in two or more Member States
under Article 27 (1) of Regulation is obligatory and admits of no deroga No 3, to aggregation of the insurance tion. Despite what the Court has declar periods completed in the two States ed in its judgment of 5 July 1967 (Case (145 + 50 = 195 quarterly periods), 1/67, Stanislas Ciechelski v Caisse which entitle him to receive an old- Régionale de Sécurité So ciale du Centre age pension in France. d'Orleans; reference for a preliminary — under Article 28 (1) (b) of Regula ruling by the Chambre Sociale of the tion No 3 the amount payable by Cour d'Appel, Orleans; [1967] ECR
the French social security institution 181) pro rata calculation cannot be ex pro rata with the duration of insur cluded even where the insured person's ance periods completed under French right to benefit is acquired in pursuance legislation as compared with the total of the legislation of a single Member duration of periods completed under State and there is no need to take French and German legislation is account of periods completed in another therefore, as from 1 September 1969: State. Subparagraphs (f) and (g) of paragraph (1) and paragraph (3) of Article 28 of Regulation No 3 would 5946.47 × 50 = FF 1 524.73. be devoid of purpose if the award of the various benefits without aggregation Mr Gross wishes this reduction (50/195) were possible. to be limited to 50/120, in view of the In this case, with regard to the possible fact that, in calculating old-age pensions, limitation to 120 (instead of 195) for French legislation provides only for a the purpose of the pro rata calculation, maximum period of 30 years (120 it must be observed that no legal text quarterly periods). provides for this limitation, that it would This solution, which is more favourable lead, in certain cases, to the non- to the plaintiff in the main action than application of obligatory EEC regula that adopted by the Caisse, is un- tions and that, in other cases, it would
GROSS V CAISSE D'ASSURANCE VIEILLESSE DE STRASBOURG
favour foreign nationals as compared tions of all the Member States concern with French nationals affiliated in France ed before the materialization of the risk to two social security schemes. is longer than the maximum period re The Commission of the European quired by the legislation of one of these Communities points out that to be States for receipt of full benefit, the entitled in France to an old-age pension competent institution of that State shall, it is necessary to make contributions for when applying the provisions of this a minimum of 15 years, in other words paragraph, take into consideration this 60 quarterly periods. Failing this mini maximum period instead of the total mum, the insurance periods completed length of the periods completed; this in pursuance of the legislation of two method of calculation must not result in or more Member States must be aggre the imposition on that institution of the gated. In this case, the Caisse Regionale costs of a benefit greater than the full made a correct application of the legal benefit provided for by the legislation provisions in force since the person which it administers'. concerned would not have had any right On the entry into force of that provision to a pension without aggregation. In Mr Gross will be entitled to require the these circumstances, the observations Caisse Regionale to recalculate his pen made by the Caisse criticizing the judg sion according to the formula: ment of the Court in Case 1/67 are not relevant. 14 866.19 × 40 _50 100 120 Furthermore, the Commission points out that on 14 June 1971 the Council However, in view of the legal provisions adopted Regulation No 1408 on the at present applicable, the reply to the application of social security schemes question put to the Court should be in to employed persons and their families the following terms: moving within the Community (OJ where in a Member State the right L 149, p. 2). That regulation in parti to benefit only exists when account cular repeals Regulation No 3 and will is taken of insurance periods com enter into force on the first day of the pleted under the legislation of other seventh month following publication in Member States, the competent institu the Official Journal of the Communities tion of the first Member State is of the implementing regulation referred obliged to apply Articles 27 and 28 to in Article 97 thereof. Article 46 (2) of Regulation No 3. For this reason, the (c) is in the following terms: position of the migrant worker is not If the total length or the insurance more favourable than that of nationals periods completed under the legisla- of the country in which he is working.
Grounds of judgment
1 By decision of 28 April 1971, received at the Court on 8 June 1971, the (Commission de Premiere Instance du Contentieux de la Sécurité Sociale du Bas-Rhin submitted, under Article 177 of the EEC Treaty, a question relating to the interpretation of Articles 27 and 28 of Regulation No 3 of the Council concerning social security for migrant workers and of Article 51 of the EEC Treaty, in connexion with the method of determining old-age pensions.
2 It appears from the file that the plaintiff in the main action has been affiliated successively to German and French social insurance schemes, having com
JUDGMENT OF 10. 11. 1971 — CASE 26/71
pleted 195 quarterly periods in this manner, 145 in Germany and 50 in France.
3 Whereas on the basis of periods completed in France alone he would only have been able to claim an 'old-age annuity' under Article L 336 of the French Code de la Sécurité Sociale, the Caisse Régionale d'Assurance Vieil lesse des Travailleurs Salaries of Strasbourg granted him the benefit of an 'old-age pension' calculated under Article L 331 of the same Code, by apply ing the provisions of Articles 27 and 28 of Regulation No 3 relating to the aggregation and pro rata calculation of insurance periods.
4 The applicant submitted a complaint against this decision to the Commission de Procédure Gracieuse, disputing the application of Regulation No 3 and requesting that his rights be quantified by reference solely to payments made by him in France.
5 This complaint was rejected, whereupon he brought an action before the Commission de Première Instance du Contentieux de la Sécurité Sociale in which he confined his objection to the methods of calculation applied by the Caisse Regionale for the pro rata calculation of his pension under Article 28 of Regulation No 3.
6 It appears from these facts that the question of interpretation raised by the Commission de Première Instance concerns the applicability of Articles 27 and 28 of Regulation No 3 to the case of a worker who, whilst entitled to a social security benefit under the legislation of the State concerned, does not however fulfil the conditions required by that legislation for entitlement to a benefit of a more advantageous kind.
7 Furthermore, it is necessary in order to answer the question referred to consider which methods of calculation are applicable under Article 28 of Regulation No 3 where the total of insurance periods completed by a worker in the Community as a whole exceeds the total of the periods taken into account by national legislation for the grant of full benefit.
8 Article 27 of Regulation No 3 provides, in accordance with Article 51 of the EEC Treaty, that where an insured person has been successively subject to the legislation of two or more Member States the insurance periods shall be aggregated for the purpose of the acquisition of the right to benefits.
9 Where the legislation of a Member State provides for old-age benefits of different kinds, depending on the period of affiliation, the principle of aggre gation laid down in Article 27 is applicable wherever a worker has not com pleted, under the relevant legislation, the periods necessary to entitle him to benefit of the more advantageous kind.
GROSS V CAISSE D'ASSURANCE VIEILLESSE DE STRASBOURG
10 Consequently, where there is aggregation, the calculation of the benefit must be made in accordance with the rules contained in Article 28 Regulation No 3.
11 Under Article 28 (1) (b) the institution shall determine the amount due 'pro rata with the length of the periods completed' under its own legislation 'as compared with the total length of the periods completed under the legislation of all the Member States concerned'.
12 It follows from this that, for the purpose of calculating the fraction of the benefit to be borne by the relevant institution, account must be taken of all periods in fact 'completed' and not merely those representing the total required for the grant of full benefit.
Costs
13 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
14 As these proceedings are, in so far as the parties to the main action are con cerned, in the nature of a step in the action pending before the Commission de Premiere Instance du Contentieux de la Sécurité Sociale et de la Mutualite Sociale Agricole du Bas-Rhin, costs are 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 European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Com munity, especially Articles 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 27 and 28; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
in answer to the question referred to it by the Commission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole du Bas-Rhin by decision of 28 April 1971, hereby rules:
OPINION OF MR DUTHEILLET DE LAMOTHE — CASE 26/71
1. Where the legislation of a Member State provides for old-age benefits of different kinds, depending on the length of time for which the worker concerned has been affiliated, insurance periods completed successively or alternately under the legislation of two or more Member States must be aggregated wherever the worker has not completed the number of periods necessary under the legis lation of the first State to entitle him to benefit of the more advan tageous kind.
2. Where aggregation is necessary, for the purpose of calculating the fraction of the benefit to be borne by the relevant institution ac count must be taken of the periods in fact completed by the worker concerned, and not merely those representing the total required in the State in question for entitlement to full benefit.
Lecourt Mertens de Wilmars Kutscher
Donner Trabucchi Monaco Pescatore
Delivered in open court in Luxembourg on 10 November 1971.
A. Van Houtte R. Lecourt Registrar President
OPINION OF MR ADVOCATE-GENERAL
DUTHEILLET DE LAMOTHE
DELIVERED ON 13 OCTOBER 1971 1
Mr President, As you will remember, in certain cases, Members of the Court, Article 27 gives workers to whom Regulation No 3 applies the right of The plaintiffs in the main actions (in aggregation of insurance periods com Cases 26/71, 27/71 and 28/71) are all pleted under the legislations of different three of German nationality and have Member States for the purpose of gain worked partly in France and partly in ing entitlement to old-age benefits. Germany. Article 28 lays down in such cases how When they became entitled to payment the benefit is to be 'apportioned'. The of an old-age pension the question arose amount of this benefit is first calculated whether Articles 27 and 28 of Regula for accounting purposes in accordance tion No 3 concerning social security for with national legislation alone, then the migrant workers applied to them. amount to be paid is apportioned accord-
1 — Translated from the French.