C-140/73

JUDGMENT OF THE COURT OF 6 DECEMBER 1973 1

Direction régionale de la sécurité sociale de la région parisienne and Caisse régionale d'assurance maladie de Paris v Carmela Mancuso and Caisse nationale d'assurance vieillesse des travailleurs salariés

(preliminary ruling requested by the Cour d'Appel de Paris)

'Invalidity pensions'

Case 140/73

Summary

1 — Language of the Case: French.

JUDGMENT OF 6. 12. 1973 — CASE 140/73

1. CARMELA MANCUSO, Via Principe de Scalea 81, Caltanisetta-Bompensiere, Sicily, Italy,

2. CAISSE NATIONALE D'ASSURANCE VIEILLESSE DES TRAVAILLEURS SALARIÉS, 110-112, rue de Flandre, 75019 Paris,

on the interpretation of Articles 27 and 28 of Regulation No 3 of the Council concerning social security for migrant workers (OJ No 30 of 16 December 1958),

THE COURT

SÉCURITÉ SOCIALE PARIS v MANCUSO

and 28 as regards old-age pensions shall Article 28 on apportionment and more apply by analogy. especially the provisions of Article 28 (3) The application for a preliminary ruling can be applied to invalidity pensions, which the Court of Appeal, Paris has when there is no need to have recourse made to the Court concerns the question to the application of Article 27 for the of whether the interpretation which the acquisition of pension rights.' Court has given to Articles 27 and 28, as The request for a preliminary ruling regards the case where no apportion dated 3 May 1973 was regstiered at the ment has to be made, applies equally in Court on 13 June 1973. the event of analogous application of After hearing the report of the these Articles to the system of invalidity

for the period from 1 May 1964 to 1 A — Observations by the first plaintiff January 1965 under the apportionment rules provided in Article 28 (1) of As regards the first question, the first Regulation No 3 of the Council. plaintiff observes that according to the On application by the first defendant, terms of Article 26 of Regulation No 3 the Commission de Premiere Instance du of the Council (OJ No 30, 16.12. 1958, contentieux de la sécurité sociale de p. 561/58) concerning social security for Paris sent the case to the Caisse migrant workers, Articles 27 and 28 of Régionale to have the calculation of the this Regulation apply also to invalidity pension made 'solely according to the benefits when under one of the rules of the French system, without legislations applicable such benefits apportionment with the Italian system'. depend on the duration of insurance The first and second plaintiffs having periods (legislation called type B). appealed, the Court of Appeal, Paris, As regards the second question, the first taking the view that questions of plaintiff observes that the legal principle interpretation of Community law arose, confirmed in the judgments of 15 July stayed the proceedings by order of 3 1964 (Case 100/63, van der Veen, Rec. May 1973 and referred the following 1964, p. 1108) and of 5 July 1967 (Case

1/67 and 2/67, Ciechelski and de Moor, accumulation of benefits. Of the six Rec. 1967 p. 234 and p. 256) according Member States to whom Regulation No to which apportionment is excluded 3 applied, three have, as regards in the case of a pension the right to invalidity pensions, legislation which which arises only from those insurance does not make the amount of benefits periods completed under the legislation depend on the duration of insurance, of one Member State, could not be whereas the legislation of another takes extended to invalidity pensions by account of the duration of insurance reason 'of the fundamental difference only for a part of the pension.

Article 11 of Regulation No 3. The objection could be rebutted as follows. Court itself said in the judgment in A recent judgment of the Court (Case Ciechelski of 5 July 1967 (Case 1/67, 27/71, Keller, judgment dated 10 Rec. 1967 p. 245) that in this event an November 1971, Rec. 1971 p. 885) has exception must be made to the rule it stated that the benefit for a migrant

concerned. Otherwise recourse to particular to schemes providing benefits apportionment would infringe Article 51 comprising a part proportionate to the of the Treaty. Apportionment is possible duration of the insurance and a fixed only in a State where aggregation of part independent of that duration periods is required. (judgment dated 5 July 1967, Case 2/67, The Commission observes that one de Moor, Rec. 1967 p. 255) and even to could indeed join with the first plaintiff the case of legislation of type A (judg in fearing that the application to ment dated 15 July 1964, Case 100/63, invalidity pensions of rules applying to van der Veen, Rec. 1964 p. 1125). old-age pensions would result in an According to the Commission it may be

deduced by analogy from the van der pensions can be applied to invalidity Veen judgment that the rule that ap­ pensions. If entitlement to benefits arises portionment applies only if aggregation in a Member State without it being is a prior condition for entitlement necessary to take into account periods applies equally to the calculation of completed in other Member States, the invalidity pensions. competent insurance body may not The first question must therefore be apply Articles 27 and 28 of Regulation answered in the affirmative. No 3 and reduce the amount of benefits which it is due to pay under its As to the second question the Commis­ own legislation, insofar as these benefits sion considers that in view of the principle are not due by reference to periods referred to above there is no point in already taken into account for the applying Article 28 (3) of Regulation No calculation of benefits paid by the 3 expressly referred to by the Court of competent insurance body of another Appeal, Paris. Indeed, this provision, State. Apportionment applies only in the which provides for the grant of a supplement when the amount of the case where entitlement to a pension benefits calculated under Article 28 (1) arises as a result of aggregation of insurance periods. and (2) is lower than the benefit which would atise under the legislation of one In the view of the Italian Government Member State alone, no longer has any there is no fundamental difference effect, since if entitlement to benefit between the entitlement to invalidity under the legislation of one Member pension and the entitlement to old-age State alone exists, this benefit must be pension, justifying different rules of granted according to the rules of that Community law. Moreover, Article 26 of legislation alone, without the application the Regulation provides for the of Article 28 (1) and (2). application by analogy of the provisions It is proper too to point out that, taking relating to old age and to death. account of the principles developed by Subsequent to the report for the hearing the Court, Regulation No 1408/71 of the set out above, the oral hearing took Council, which henceforth replaces place. Regulation No 3, has repeated such a provision. The oral observations made by the Italian Government, represented by A. Maresca, and the Commission, C — Observations of the Italian represented by Miss M. J. Jonczy, were Government made at the hearing on 6 November 1973.

4 Thus the questions raised are basically aimed at defining the respective rela­ tionships between Articles 26, 27 and 28 of Regulation No 3 and, in particu­ lar, at ascertaining whether the apportionment of the amount of benefits provided for by Article 28 in the case of old-age pensions and pensions on death must be applied to invalidity pensions 'although there is no need to have recourse to the application of Article 27 for the acquisition of pension rights'.

5 According to Article 26 of Regulation No 3, Articles 27 and 28 relating to old-age and death pensions 'shall apply by analogy' to the payment of inval­ idity benefits when the insured has completed periods under different legisla­ tions of which at least one is of type B.

6 The basis, framework and limits of the Regulations on social security are contained in Articles 48 to 51 of the Treaty, intended to secure freedom of movement for workers.

7 From this point of view, Article 51 of the Treaty and Article 27 of Regula­ tion No 3 refer in essence to the case where the legislation of a Member State on its own does not entitle the person concerned to a benefit by reason of the insufficient time completed under this legislation.

SÉCURITÉ SOCIALE PARIS v MANCUSO

8 To remedy this situation these provisions provide, for the benefit of the worker who has been subject successively or alternately to the legislation of two or more Member States, for the aggregation of periods of insurance completed under the legislation of each of these States.

15 Indeed the possible combination of systems of types A and B arises likewise in the case of old-age pensions, but this fact does not permit the application, contrary to the terms of Article 28, of apportionment of the benefit, when there is no need of the simultaneous application of Article 27 to give rise to entitlement to this benefit.

JUDGMENT OF 6. 12. 1973 — CASE 140/73

16 A different interpretation would lead to a discrimination at the expense of the migrant worker by giving him, in the same legal circumstances, smaller rights than those accorded to the worker who completes the whole of his occupational career in a single Member State.

17 If this interpretation is capable of leading in certain cases to an accumula­ tion of pensions, this consequence follows not from the interpretation of Community law but from the system at present in force, which, in the ab­ sence of a common social security scheme, rests on a simple coordination of national legislations which have not yet been harmonized.

18 It follows from Article 11 of Regulation No 3 that the national legislations could deal with this situation if it is a question of benefits acquired outside the application of Articles 27 and 28 of this Regulation.

Costs

in answer to the questions referred to it by the Court of Appeal, Paris, by order of that court dated 3 May 1973, hereby rules:

The application by analogy of Articles 27 and 28 of Regulation No 3 to the cases referred to by Article 26 (1) implies that apportionment of benefits may only take place if it has been necessary, in order to give rise to entitlement, to aggregate beforehand the periods completed under different legislations.

Lecourt Sørensen Monaco

Mertens de Wilmars Pescatore Kutscher Ó Dálaigh

Delivered in open court in Luxembourg on 6 December 1973.

A. Van Houtte R. Lecourt