C-27/71

JUDGMENT OF THE COURT 10 NOVEMBER 1971 1

August Keller 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 27/71

Summary

Social security for migrant workers — Old-age pensions — Right acquired by virtue of insurance periods completed under the legislation of a single Member State — Reduction by means of aggregation and pro rata calculation — Prohibited except in the case of overlapping of benefits for the same period (Regulation No 3 of the Council, Articles 27 and 28)

1 — Language of the Case: French.

JUDGMENT OF 10. 11. 1971 — CASE 27/71

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

under French old-age insurance. Sociale et de la Mutualite Sociale Agri­ On 10 January 1970 he was lnformed cole du Bas-Rhin in Strasbourg. of a decision of the Caisse Régionale Alter hearing argument on 31 March d'Assurance Vieillesse des Travailleurs 1971, the said Commission decided on Salariés de Strasbourg, dated 15 Novem­ 28 April 1971 to request the Court of ber 1969, whereby he was granted the Justice, in accordance with Article 177 benefit of an old-age pension calculated of the EEC Treaty, in accordance with the French Code de 'to give a preliminary ruling on the la Sécurité Sociale and Articles 27 and interpretation of the legal provisions 28 of Regulation No 3 concerning social relied on by the parties and, more security for migrant workers. particularly, to state whether, not­ On 3 February 1970 Mr Keller applied withstanding the rules in force to the Commission de Procédure Graci­ (Articles 27 and 28 of Regulation No euse et de Remise des Dettes of the 3 and Article 51 of the Treaty of Caisse Régionale d'Assurance Vieillesse Rome), migrant workers must occupy

KELLER v CAISSE D'ASSURANCE VIEILLESSE DE STRASBOURG

open the oral procedure without any — secondly, in accordance wirn Regu­ preparatory inquiry. lations Nos 3 and 4 concerning social The Commission presented its oral ob­ security for migrant workers, which servations at the hearing on 6 October provide for the aggregation of insur­ 1971. ance periods completed in two or The Advocate-General delivered his more States of the Community, the opinion on 13 October 1971. determination of the amount for ac­ In the procedure before the Court, the counting purposes of the benefit to plaintiff in the main action himself sub­ which the person concerned would mitted observations, the defendant in be entitled if all his insurance periods the main action was represented by its had been completed exclusively un­ Assistant Director, Paul Kuntz, and the der French legislation and the cal­ Commission by its Legal Adviser, Italo culation of the French portion pro Telchini. rata with the periods completed in France as compared with the total duration of insurance periods com­ II — Observations submit­ pleted under the legislative systems ted to the Court of all the Member States concerned. In pursuance of those provisions, ac­ The written and oral observations sub­ count was taken of the following fac­ mitted to the Court may be summar­ tors:

is increased by 4% of the basic an favourably than nationals of the coun nual wage for each year after that tries in which they are working. All age): 20 + (4 X 4) = 36%; international agreements give foreigners — me formula for calculating the out the same rights as nationals but they age pension acquired over 30 years cannot put the former in a privileged is as follows: position. It also emerges from Articles 27 and 28 14 755.91 X 36 = of Regulation No 3—adopted in pursu

sible. 185) to be limited to 50/120, in view In this case, with regard to the possible of the fact that, in calculating old-age limitation to 120 (instead of 185) for the pensions, French legislation provides purpose of the pro rata calculation, it only for a maximum of 30 years (120 must be observed that no legal text quarterly periods). provides for this limitation, that it This solution, which is more favourable would 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 unaccept tions and that, in other cases, it would able since it does not take account of favour foreign nationals as compared Regulations Nos 3 and 4. with French nationals affiliated in Article 51 or tne EEC Treaty provides France to two social security schemes. for aggregation of all periods taken into The Commission of the European Com account under the different national munities maintains that Mr Keller would legislative systems for the purpose both enjoy a larger old-age pension in France of acquiring and retaining the right to if it had been calculated exclusively benefit and of calculating the amount of under the French legislation, that is, benefit.

KELLER v CAISSE D'ASSURANCE VIEILLESSE DE STRASBOURG

sion in France on the sole basis of the sary to refer to periods completed under French insurance periods since he has the legislation of other Member States, amply fulfilled the minimum period of the competent institution of the first 15 years, that is, 60 quarterly periods, State is not empowered to apply Articles of contributions. The case is therefore 27 and 28 of Regulatiin No 3 in order identical with that settled by the Court to reduce the benefit which it is obliged of Justice in its judgment in Ciechelski to pay by virtue of its own legislation, of 5 July 1967; that decision has been at least in so far as that benefit does clarified and supplemented by a num­ not relate to periods which have already ber of judgments of the Court. The been taken into account in the calcula­ principles flowing from those cases were tion of the amount of the benefit paid recently adopted by the French Cour by the competent institution of another de Cassation and by the Cour d'Appel, State. Paris. Within those limits it is possible that In those circumstances it must be ruled, in certain respects the situation of as the Court has already decided, that migrant workers may be more favour­ when in one Member State the right to able than it would be through the ap­ benefit arises without its being neces- plication of internal law alone.

Grounds of judgment

1 By decision of 28 April 1971, received at the Court on 8 June 1971, the Commission de Première Instance du Contentieux de la Securiti 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.

6 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 Régionale for the pro rata calculation of his pension under Article 28 of Regulation No 3.

7 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 is entitled to an old-age pension under the legislation of a Member State on the sole basis of insurance periods completed under the legislation of that State.

8 In particular, the Commission de Première Instance wishes to know whether 'migrant workers must occupy a privileged position as compared with nationals of the State in which they are working', because they do not come under the rule regarding aggregation and its corollary, that on pro rata calculation.

9 Article 51 of the Treaty and Article 27 of Regulation No 3 deal essentially with the case in which the laws of one Member State do not by themselves allow the person concerned the right to benefits by reason of the insufficient number of periods completed under its laws.

10 To remedy this situation they provide, in respect of a worker who has been successively or alternately subject to the laws of two or more Member States, for aggregation of the insurance periods completed under the laws of each of such States.

11 The provisions of Articles 27 and 28 of Regulation No 3 are accordingly applicable only in clearly defined cases and are irrelevant with regard to a State in which the effect which Article 51 seeks to produce is attained under national legislation alone.

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 Community, 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:

When in one Member State the right to an old-age pension arises by reason of insurance periods completed solely under the legislation of that State without its being necessary to refer to periods completed under the legislation of other Member States, the competent institution

JUDGMENT OF 10. 11. 1971 — CASE 27/71

MR DUTHEILLET DE LAMOTHE

(See Case 26/71, p. 878)