C-80/71

2. Social security for migrant workers — French legislation — Law No 65/555 of 10 July 1965 — Applicability to nationals of the other Member States — Conditions (Regulation No 3, Section IV В of Annex G)

1. In the context of Article 177 the Court that Law No 65/555 of 10 July 1965, may neither take cognizance of the granting to French nationals who are particular facts of the case nor rule on or were engaged in occupations abroad provisions of internal law. However, the option of joining a voluntary old­ it may extract from the questions age insurance scheme, applies to na­ referred those elements which relate tionals of the other Member States who, solely to the interpretation of Com­ at the date of their application, have munity law. been subject for at least ten years to one of the French schemes listed in Article Section I Annex G to Regulation 2(1) and (2) of Regulation No 3. No 3 must be interpreted as meaning

In Case 80/71

Reference to the Court under Article 177 of the EEC Treaty by the Commission de première instance du contentieux de la sécurité sociale et de la Mutualité Sociale Agricole de Paris for a preliminary ruling in the action pending before that court between

ADALGISA MERLUZZI, residing at Casablanca, Morocco,

1 — Language of the case: French. 2 — CMLR.

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and proce­ abroad the option of joining a voluntary dure old-age insurance scheme;

1. Mrs Adalgisa Merluzzi, an Italian — Section IV B of Annex G to Regulation national residing in Morocco, was in No 3 of the Council, laying down the employment in that country over a period conditions under which the provisions of more than ten years from 1930. of that law are applied to nationals of She asked the Caisse Primaire Centrale the other Member States, which are d'Assurance Maladie de la Région Parisien­ defined as follows : ne (hereinafter referred to as the 'Caisse 'The occupation which qualifies for Primaire') to allow her to pay contribu­ voluntary insurance under the French tions for old-age insurance based on this scheme shall not be or shall not have employmen : been carried out either on French terri­ In support of her request she cited : tory or on the territory of which the worker is a national ; wor orker is a national ;

been resident in France for at least ten provide that "French nationals shall enjoy years, whether or not consecutive, or in the French Protectorate of Morocco all that he has been subject to French the private rights accorded them in France legislation on a compulsory or optional under French law" and that "Foreign continued basis during the above- nationals shall enjoy the same private rights mentioned period.' as French nationals, with no conditions or restrictions other than those resulting from The applicant considers that she fulfils their 'national law'" imply that a national these conditions because: of a Member State of the Community who relies on these provisions was subject to — she engaged in her wage-earning occupa­ French legislation either on a compulsory tion outside French territory and out­ or optional basis, within the meaning of side the territory of the State of which Section IV of Annex G to Regulation No 3 she is a national; of the Council of the European Com­ munities?' — French legislation being at the time the only legislation applicable to nationals 2. A certified copy of the decision making other than Moroccans (with the ex­ the reference was received at the Court ception of nationals of certain States Registry on 9 September 1971. not including Italy), she had been The Commission of the European Com­ subject to French legislation for a period munities, represented by Italo Teichini, its of at least ten years. Legal Adviser, acting as Agent, submitted written observations in accordance with In the view of the Caisse Primaire, Mrs Article 20 of the Protocol on the Statute of Merluzzi does not satisfy the lastmentioned the Court of Justice. condition, since the argument relied on by Having heard the report of the Judge- her amounts to considering Morocco as Rapporteur and the views of the Advocate- French territory, which at the same time General, the Court decided to open the excludes the possibility of Mrs Merluzzi's oral procedure without any preparatory having engaged in her wage-earning inquiry. 1 J ·

Observations submitted by the Commission — have a particular link with the French of the European Communities social security system, attested by a certain number of years of contribution; The Commission first traces the origin of the provisions of Community law to which — are or have been engaged in their wage- the question referred relates. It points out earning occupation outside their country that Law No 65/555 of 10 July 1965 of origin. expressly refers to French nationals. In its Ministerial Circular No 50 SS of 8 June The proposals of the French Delegation 1966 the French Government notified did not give rise to objections on the part foreign Governments which had entered of the Administrative Committee, since into agreements on social security with residence outside the country of origin France that their nationals could not rely was also required in the case of French on the provisions of that law. Such a nationals and since— in the opinion of restriction was, in so far as Member States that Committee— the requirement of a of the Community were concerned, in­ certain prior period of insurance in France admissible in the light of Regulations Nos was not discriminatory according to the 3 and 4 of the Council. For that reason ratio legis of Regulation No 3. the Administrative Committee on Social The Commission examines the question Security for Migrant Workers was obliged bearing in mind these considerations. to examine the problems to which the In its opinion, the question is whether French Law of 10 July 1965 could give Regulation No 3 applies to a worker who rise. This examination resulted in the is in a situation identical to that of the adoption by the Council of: plaintiff in the main action or, more precisely, whether that worker may be — the provisions of Article 9 of Regulation considered as a migrant worker within No 1408/71 (not as yet in force) supple­ the meaning of Article 4 of the said mented— as regards the conditions for regulation. The answer to this question the application of the French Law of depends on matters of fact of which the 10 July 1965 to nationals of other Court is not at present in possession. If Member States— by the provisions of Mrs Merluzzi has worked only in Mo­ Article 3 of Section C of Annex V to rocco, it would be difficult to attribute to that regulation ; her the status of migrant worker within the meaning of Regulation No 3, since — Regulation No 419/68 of 5 April 1968 Morocco is not a Member State of the (JO 1968, L 87), amending and supple­ Community. Communi ty .

Grounds of judgment

1 By judgment of 25 March 1971, received at the Court Registry on 9 September 1971, the Commission de Première Instance du Contentieux de la Sécurité Sociale de Paris requested the Court to give a preliminary ruling under Article 177 of the EEC Treaty on the question whether the provisions of Article 2(1) and (2) of the Moroccan dahir of 12 August 1913, extending to 'foreign nationals' the enjoyment of private rights accorded in France by French Law to French nationals, imply 'that a national of a Member State of the Community who relies on these provisions was subject to French legislation either on a compulsory or optional basis within the meaning of Article 4 of Section IV of Annex G to Regulation No 3 of the Council'.

2 As worded, the question seems to have the purpose of interpreting the Moroccan dahir of 12 August 1913 so as to determine the ambit of the French legislation referred to in Section IV B of Annex G to Regulation No 3.

3 The Court, whilst having jurisdiction to interpret the provisions of Community law, has no jurisdiction in the context of Article 177 to rule on provisions of internal law.

4 However, it may extract from the question referred those elements which relate solely to the interpretation of Section IV B of Annex G to Regulation No 3.

5 Under Section IV B of Annex G to that regulation, the French Law No 65/555 of 10 July 1965, granting French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, is applied to nationals of the other Member States subject to two conditions.

11 However, the benefit of Annex G may also be claimed if the worker has been subject for at least ten years to French legislation on a compulsory or optional continued basis.

12 That question, which concerns solely the application of French law, or possibly of Moroccan law, is not as such one which the Court of Justice has jurisdiction to decide.

13 Only if the national court were to consider that the plaintiff in the main action was subject to French legislation would she, as a consequence, have under Annex G the option of joining the voluntary old-age insurance scheme.

14 In that connexion it should be observed that Regulation No 3 itself defines the term 'legislation' as it appears in its provisions, including those of Section IV B of Annex G.

15 It emerges from Article 1 of that regulation that the term refers to the laws, regulations and other enforceable provisions present and future of each Member

MERLUZZI ν CAISSE MALADIE PARIS

Upon hearing the oral observations of the Commission of the European Com­ munities; 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; Having regard to Regulation No 419/68 of the Council of 5 April 1968 (JO 1968, L 87); L 87)

Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community, 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 de Paris, by order of that court dated 25 March 1971, hereby rules:

OPINION OF MR ROEMER — CASE 80/71

Section IV B of Annex G to Regulation No 3 must be interpreted as meaning that Law No 65/555 of 10 July 1965, granting to French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, applies to nationals of the other Member States who, at the date of their application, have been subject for at least ten years to one of the French schemes listed in Article 2 (1) and (2) of Regulation No 3.

Mr President, case for Italian nationals), other foreign Members of the Court, nationals enjoyed the same private rights as the French. The plaintiff in the main action which As regards social security, which is in fact gave rise to the request for a preliminary the subject of this case, Article 1 of the ruling before the Court today is an Italian French Law of 10 July 1965 states: 'Para­ national residing in Casablanca in Mo­ graph (2) of Article L 244 of the Social rocco. It seems that she has been employed Security Code shall be amended as follows : in that country for more than ten years "This (that is, the possibility of voluntary since 1930. At that time, Morocco was insurance) shall also apply to old-age a French protectorate, but under the pensions as regards wage-earners or Treaty concluded at Fez on 30 March 1912 assimilated workers of French nationality the country was not considered to be who work outside French territory"'. French territory. The dahir (decree of the Article 2 of the French Law continues: Sultan) of 12 August 1913 merely provided 'Wage-earners or assimilated workers who that 'French nationals shall enjoy in the join a voluntary insurance scheme may, Protectorate of Morocco all the private for the periods during which they have, rights accorded them in France under after 1 July 1930, engaged in a wage­ French law'. The dahir also laid down earning occupation outside French terri­ that, in so far as they did not enjoy tory, acquire rights to old-age pension particular privileges (which was not the against payment of the contributions