C-110/73

JUDGMENT OF THE COURT 10 OCTOBER 19731

G. Fiege v Caisse régionale d'assurance maladie de Strasbourg (preliminary[ruling requested by the Cour de Cassation)

Case 110/73

Summary

1. Social Security — Migrant workers — Invalidity pension — Transfer — Regu­ lation No 4, Article 30 — Inapplicability 2. Social Security — Migrant workers — Algeria—Right acquired before 19 January 1965 — Obligation of French institutions to honour such right — Recipient — Resident within a Member State other than France — Claim — Institution to which claim addressed (Regulation No 3, Annex A, former version; Regulation No 3, Article 10)

1. The provisions of article 30 of State, and even if the claim for Regulation No 4 do not apply to transfer was not referred to those transfers of invalidity pensions. institutions until after the coming into force of Regulation No 109/65. 2. Annex A to Regulation No 3, in its A migrant worker resident, before 19 former wording, requires French January 1965, within French territory institutions to honour rights acquired within the meaning of Annex A to in Algeria before 19 January 1965 by Regulation No 3 is entitled to submit a migrant worker. This obligation his claim to the last French institution persists even if the worker takes up to which he had formerly been residence within another Member affiliated.

JUDGMENT OF 10. 10. 1973 — CASE 110/73

on the interpreation to be put upon Articles 10 of Regulation No 3 and 30 of Regulation No 4 and upon Regulation No 109/65 of the Council of the European Economic Community on Social Security for migrant workers,

THE COURT

composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chamber, A. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh (Rapporteur), M. Sørensen and A. J. Mackenzie Stuart, Judges,

Advocate General: J. P. Warner Registrar: A. Van Houtte

gives the following

interpreted as meaning that a that the provisions under which the migrant worker who worked in claim was made were not applicable in turn in Germany, then in France this case, since the pension had been and finnally in Algeria where he granted after Algeria had obtained obtained the grant of an invalidity independence, Community Regulations pension from 1 November 1962, having no force there, by an Algerian subsequently to Algeria's independ Caisse which ensured the regular ence, and who wishes to take up payment of the pension; that even in the residence in Germany, is entitled to context of the provisions of the address his claim for the transfer of abovementioned Regulations the rele his pension not to the last vant institution of the State under whose institution to which he was legislation the worker had last been affiliated in Algeria, but to a French insured was that of Algeria, not that of institution to which he had formerly Strasbourg; that no Community

November 1962. Upon subsequent under national law, it was bound to intimation of his wish to return to bring the matter before the Court, Germany, he was informed by the Caisse pursuant to Article 177 of the EEC of Oran that, in the absence of any Treaty. reciprocal agreement, his pension would cease to be paid if he left Algeria. In 3. The reference from the Chambre pursuance of Articles 10 of Regulation Sociale of the Cour de Cassation, Paris, No 3 and 30 of Regulation No 4 of the was lodged with the Registry of the Community, Mr Fiege lodged a claim for Court on 22 March 1973. transfer of his pension to Germany with The appellant in the main action, the Bundesversicherungsanstalt für represented by Me Nicolay, of the Cour Angestellte in Berlin on 26 January 1963. de Cassation, the C.R_A_M_ of This institution transmitted the claim, on Strasbourg, respondent in the main 31 May 1967, through the Centre de action, and the Commission of the

a Decision of the Cour d'Appel of Paris, the Judge-Rapporteur and the opinion of of 22 December 1970, on the grounds the Advocate-General, the Court decided

The Commission wishes to point out that Regulations Nos 3 and 4 originally II — Written observations applied to Algeria but that upon the submitted to the Court latter's becoming independent, on 1 July 1962, the reference to Algeria and The observations submitted to the Court Algerian nationals was deleted from under Article 20 of the Statute may be Annex A of Regulation No 3 by summarized as follows: Regulation No 109/65 of the Council, with effect from 19/1/65 (OJ No 125 of 9 July 1965, p. 2131), and the references A — Observations submitted by the to Algeria were deleted from Annexes B Caisse régionale d'assurance and D of Regulation No 3 and from maladie de Strasbourg Annexes 1, 2, 3, 5 and 9 of Regulation No 4 by Communications of 1 and 18 The Caisse draws the Court's attention February 1965, also with effect from 19 to the fact that it has already made its January 1965 (OJ No 68 of 23 April position in this case clear, in particular 1965 and No 83 of 13 May 1965). 19 before the Commission de Première January 1965 is the date of the signing Instance du Contentieux de la Sécurité of the Franco-Algerian General Sociale in Paris and before the Cour Convention on Soical Security, which d'Appel of Paris, and that the latter had came, into force on 19 May 1965. upheld its argument in finding against In the Commission's view this is why the Mr Fiege and dismissing his appeal by its appellant believes that France was

Migrants in Paris, for an invalidity stellte in Berlin was made prior to this pension (not a claim for the transfer of date and why he considers that benefits), and that this claim was not put non-payment of the pension to which he to it until 6 June 1967. The C.R_A_M_ was entitled by reason of his insurance states that even on the hypothesis that in Algeria constitutes an infringement of Algeria is to be regarded as French Article 10 of Regulation No 3, which territory, for the purposes of Regulations provides for the transfer abroad of 3 and 4 of the European Economic benefits. Community, up to 18 January 1965, it would remain the case that the Algerian (a) As to the first question Caisse, being the 'French Caisse' to which the appellant was last affiliated The Commission observes that the was alone responsible for the grant and provisions of Article 30 of Regulation maintenance of the invalidity pension. No 4 are intended to determine the Lastly, the C.R_A_M_ refers to the Social Security institution to which provisions of Order No 53/167 of 25 claims for pension benefits must or may February 1953, cites Article 14 of the be addressed, depending on whether the Government Order of the same date and worker is resident within the territory of submits that in any case it could not, a Member State to whose legislation he under these circumstances, be ordered to has been subject (paragraph (1)), pay the Algerian invalidity pension. whether he is resident within the

him the complications which might arise from his having been subject to the (b) As to the fourth question legislation of several Member States, and Without prejudice to the answer to be thereby ensures that the claim arrives by the most direct route at the institution given on the merits, the Commission considers that a claim cannot be rejected which has to examine it: in short, these on the basis, firstly, that it was lodged provisions are intended to simplify and with a German institution and, secondly, expedite the settlement of pension that it was not referred to the French claims. The Commission emphasizes that institution until after Regulation No Article 30 of Regulation No 4 is the only 109/65 had come into force. In the provision applicable to claims for Commission's view Article 47 of invalidity benefits or oldage pensions pursuant to Articles 26 to 28 of Regulation No 3 means that the date to be taken into account as being that upon Regulation No 3. which the claim was lodged is the date It follows, in the Commission's view, the claim was lodged with the German that it does not appear that the said institution, not the date it was Article 30 is inapplicable in the event of a claim for a transfer from one communicated by the latter to the French institution. institution to another. It is open to doubt, however, whether such applica­ (c) As to the other questions tion is possible. In fact, since it is intended that an institution of one The other questions referred relate to the Member State should not assume any problem as to the merits created by the obligation to pay benefits due under the termination of the applicability to legislation of a different Member State, a Algeria of Regulations Nos 3 and 4. transfer could only be effected between institutions of the same Member State. The first point to be clarified is that of the date these Regulations ceased to In this event, in the case of a pension the amount of which had already been apply in Algeria. quantified, the procedure would be that Confronted with this problem, the provided by the legislation of the Administrative Commission on Social Member State concerned, there being no Security for Migrant Workers considered necessity for the institution of another that Algeria left the ambit of the Treaty Member State to intervene. of Rome as from the date of its Having remarked that the terms of independence and that Regulation No 3, Article 30 are mandatory, ('the worker by its continued inclusion of Algeria at

Annex A, could not have a wider ambit The Commission notes that this was a than that of the Treaty. The pension of very markedly Algerian Commission is in some doubt whether character, even before Algerian this point of view is correct, or at least independence: in the Annexes to whether it should not be somewhat Regulation No 4, under the heading of modified; in its opinion the institutions France, particular mention was made of of the Member States of the Community Algeria. The Commission therefore

workers. It would be more exact, in the Commission's view, to say that between France and Algeria, which imposes on the institutions of the Regulations Nos 3 and 4, as a matter of law, ceased, as from 1 July 1962, to be country of employment the obligation to applicable, not to Algeria but to give effect to rights in respect of old-age Algerians. benefits, acquired or in course of acquisition, by reason of insurance The second point on which some periods or assimilated periods in that explanation is necessary is whether country, indicates that 'in consequence France is not under a subsidiary of the exceptional circumstances obligation, under Regulation No accompanying Algeria's independence 109/65, to pay to a pensioner who is a the institutions of that country are not national of a Member State other than able to undertake the obligations under France, a pension, the right to which

France. Security institutions to fulfil their obligations towards their foreign The Commission considers that in the contributors . . .'. absence of any express provision, Regulation No 109/65 could not be In the opinion of the Commission the interpreted in the way put forward by outcome of the foregoing, and of the fact the party concerned, unless France was that Article 2 (3) of Regulation No 3 bound to pay benefits owed by the exluces from the ambit of the Regulation Algerian institutions by reason of benefit schemes for war victims, is that periods of insurance completed before 1 the French Law of 26 December 1964 is July 1962. not, within the meaning of the

Community Regulations, legislation the France alone — and not Algeria — who extension of which to nationals of other signed Regulations Nos 3 and 4 of the Member states may be required. European Community, and that France As a consequence France, according to alone undertook to abide by those texts, the Commission, is not obliged, even considering them to be applicable to the subsidiarily, to pay workers of the territories listed at Annex A of Member States benefits acquired by Regulation No 3, that is: 'Metropolitan reason of insurance periods completed in France, Algeria, and the Overseas

Annex A of Regulation No 3 remained C — Observations submitted by the unamended; that if France had wished to appellant withdraw from its obligations in relation to the application of that text within (a) As to the first question Algerian territory it could have denounced Annex A of Regulation No 3 The appellant maintains that it cannot as soon as Algeria became independent be denied that Article 30 of Regulation in 1962. The fact that France did not No 4 is indeed applicable to the transfer request this amendment immediately hypothesis, since a claim for the transfer, following Algeria's independence evi of benefits is no different from an actual dences its intention to honour claim for benefits. undertakings with regard to nationals of The point at issue, in fact, is merely a Member States of the European claim for benefits which have already Community in respect of Social Security. been quantified: it is only a subsidiary 19 January 1965, the date fixed by the procedure in relation to the award of Regulation of 30 June is, moreover, not

JUDGMENT OF 10. 10. 1973 — CASE 110/73

Grounds of judgment

1 By Order of 22 February 1973, lodged at the Registry of the Court on 22 March 1973, the Court de Cassation of France requested the Court of Justice to give a preliminary ruling on several questions on the interpretation of Articles 10 of Regulation No 3 and 30 of Regulation No 4, and of Regulation

FIEGE v ASSURANCE MALADIE STRASBOURG

No 109/65 of the Council (OJ No 125, 9. 7. 1965), on social security for migrant workers.

2 These questions are raised in relation to proceedings concerning a claim for the assumption by the French institutions of responsibility for the invalidity pension of a German worker who wishes to leave Algeria, where he was granted the pension, to take up residence in the Federal Republic of Germany.

3 The worker, who is the appellant in the main action, is of the opinion that the assumption of responsibility for the pension is justified by the fact that at the time it was granted to him Algeria, according to Annex A to Regulation No 3, was still part of those territories listed under the heading 'France' and was thus deemed to be part of the Community for the purposes of the application of the provisions on social security for migrant workers.

institution which services the pension', does not lend support to the theory that the pension can be transferred.

8 Accordingly the answer to the first question must be negative.

On the second question

9 The second question asks whether the provisions of Annex A of Regulation No 3 which, in their former wording, mentioned Algeria together with Metropolitan France, led to particular obligations for the French Social Security institutions compelling them to pay benefits in cases of default by the Algerian institutions.

10 Annex A of Regulation No 3, at Article 1 (a) under the heading 'France', makes specific mention of Algeria in the definition of the territories to which it applies.

11 Although Algeria gained its independence on 1 July 1962, it only ceased to be part of the Community for the purposes of the rights of nationals of the Member States by virtue of Regulation No 109/65 of the Council of 30 June 1965, which deleted the references to Algeria in the Annexes to Regulations Nos 3 and 4, with effect from 19 January 1965.

On the third question

16 The third question asks whether the French Social Security institutions are equally liable in respect of rights to benefits arising in favour of a national of a Member State and recognized by an Algerian institution after Algeria's independence but before the introduction of Regulation No 109/65 of 30 June 1965 expressly excluding Algeria from the territories to which Regulation No 3 applies.

17 The fact that such rights were recognized after 1 July 1962 does not relieve the French Social Security institutions of their liability, which was maintained in respect of those territories listed with France at Annex A until such time as they were struck off at the instigation of the French Republic.

18 Any other finding would constitute a disregard of Article 16 of Regulation No 109/65 which was conceived precisely for the protection of acquired rights.

19 Accordingly the third question must be answered in the affirmative.

On the fourth question

On the fifth question

25 Finally, in the event of the foregoing questions being answered in the affirmative, the Court is requested to state whether the worker was entitled to address his claim for the transfer of his pension not to the last institution to which he was affiliated, but to a French institution to which he had formerly been affiliated.

26 Such a worker was assimilated to the persons of French nationality mentioned in Annex A to Regulation No 3, placed in similar circumstances, and is thus a Community national subject to a French institution.

27 Article 10 of Regulation No 3 lays down the principle of the immutability of a pension even where 'the recipient is resident within a Member State other than that of the institution which services the pension'.

28 A migrant worker who, before 19 January 1965, was resident within French territory, within the meaning of Annex A to Regulation No 3, is therefore entitled to address his claim to the institutions of that Member State.

FIEGE v ASSURANCE MALADIE STRASBOURG

in answer to the questions referred to it by the Cour de Cassation of France by order of that court dated 22 February 1973, hereby rules:

1. The provisions of Article 30 of Regulation No 4 do not apply to transfers of invalidity pensions.

OPINION OF MR WARNER — CASE 110/73

2. Annex A to Regulation No 3, in its former wording, obliges the French Social Security institutions to honour rights acquired in Algeria by a migrant worker before 19 Janury 1965.

3. The fact that such rights had been recognized by an Algerian institution before 19 January 1965 does not relieve the French institutions of their obligations, even if the claim for transfer was referred to them only after the introduction of Regulation No 109/65.

4. A migrant worker who had been resident within French territory, within the meaning of Annex A to Regulation No 3, before 19 January 1965 is entitled to address his claim to the last French institution to which he had formerly been affiliated.

DELIVERED ON 19 SEPTEMBER 1973

My Lords, working life in Algeria when it was French territory, a pension, the right to The aftermath of Empire has brought, which he must otherwise lose as a result for those of our countries that were of Algerian independence. formerly imperial powers, liabilities of many kinds which, whilst unwelcome, The case, of which the facts are tragic, are for one reason or another comes to this Court by way of a inescapable. The central question in the reference for a preliminary ruling by the Cour de Cassation of France. present case is whether Community law imposes upon France an obligation to Those facts are briefly as follows. The pay to a citizen of another Member appellant in the Cour de Cassation, State, who spent a large part of his Herr Gerd Wolfgang Fiege, was born in