C-6/75

JUDGMENT OF THE COURT OF 26 JUNE 1975 1

Ulrich Horst

v Bundesknappschaft (preliminary ruling requested by the Bundessozialgericht)

Case 6/75

Summary

Social security — Migrant workers — Algeria — Pensions — Calculation — Insurance periods completed before 19 January 1965 — Taking into consideration (Regulation No 109/65 of the Council, Article 16 (2))

on the interpretation of Chapters 2 and 3, and Article 8 of Regulation No 3 of the Council concerning social security for migrant workers

1 — Language of the Case: German.

JUDGMENT OF 26. 6. 1975 _ CASE 6/75

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe (Rapporteur), Judges,

Advocate-General: G. Reischl

(a) Are pension rights which have accrued by virtue of contributions The order of the Bundessozialgericht paid by a German in Algeria before rests on the following facts: 19 January 1965 to the Caisse Autonome de Retraite et de On 21 March 1960 the appellant in the Prévoyance des Mines d'Algérie also main action (hereafter referred to as 'the to be taken into account when appellant'), a German engineer born on determining a pension under 14 June 1908 and residing in the Federal Chapters 2 and 3 of Regulation No 3 Republic of Germany, requested the of the Council of the EEC even when Bundesknappschaft (Federal Mineworkers the risk insured against materializes Association hereinafter referred to as 'the and the claim of the insured person Association') of Hanover to grant a now resident in the Federal Republic federal mineworker's disablement pen­ of Germany is made only after this sion (Knappschaftsrente) and, on 13 date? January 1962, should this not be granted

HORST v BUNDESKNAPPSCHAFT

National Algerian Oil Company, S.N. Repal, the registered office of which was On an application brought before it the in Paris. He had worked as a palynologist Sozialgericht (Social Court) Hanover in Algeria until the end of June 1962 annulled both decision of the respondent and then at the office in Paris until the by a judgment of 3 March 1971 and end of July 1962. Pension contributions ordered it to increase the appellant's had been paid on his behalf to the pension by an amount proportionate to 'Caisse Autonome de Retraite et de the periods completed in Algeria, on the Prévoyance des Mines d'Algérie' for the ground that they were French insurance period from 1 July 1960 to 30 June periods. 1962. By a decision of 29 June 1971 the respondent, upon a request made by the On 6 April 1967, the appellant asked the appellant on 1 April 1970, converted the respondent in the main action (hereafter mineworkers pension for diminished referred to as 'the respondent") to take capacity to work into a miner's into account the insurance periods disablement pension treated as coming completed in Algeria, in accordance with into force in July 1971, while still Regulation Nos 3 and 4 of the EEC, for refusing to take into consideration the the calculation of his pension under the period from 1 July 1960 to 31 July 1962. German pensions insurance scheme. By a judgment of 27 October 1971 The respondent asked the Caisse the Landessozialgericht Niedersachsen autonome nationale de la sécurite sociale (Higher Social Court), on an appeal dans les mines in Paris to take into brought by the respondent, annulled the account the periods completed in judgment of the Sozialgericht for the Algeria, but the latter refused on the following principal reasons: ground that the plaintiff did not come — Regulation No 3 did not establish a within the class of persons referred to by common system of social security the French Law No 64-1330 of 26 which conferred upon the recipient December 1964. of benefits a single entitlement but on the contrary left in existence In its turn, by a decision of 9 December separate insurance schemes which 1969, the respondent refused to take into create separate entitlements from consideration the insurance periods in independent institutions;

January 1965. European Communities.

As against this, the respondent maintains Upon hearing the report of the that Article 1 (p) of Regulation No 3 of Judge-Rapporteur and the views of the the EEC prohibits it from giving a Advocate-General, the Court decided to personal interpretation. The Bundes­ open the oral procedure without any sozialgericht (Federal Social Court) preparatory inquiry. stresses that the materialization of the risk of diminishment of the capacity for work in the mines goes back to a time when Algeria was still apart of France II — Written observations sub­ and thus of the EEC, whilst on the other mitted to the Court hand the materialization of the risk of total incapacity and the corresponding request for a pension occurred after 19 (a) Observations of the Commission January 1965. The judgment of the Court of 10 October 1973 (Fiege, 110/73 The Commission first of all points out [ECR] 1973 1001) according to which that the case solely relates to the Annex A to Regulation No 3, in its first question whether the 24 months version, obliges the French institutions to completed by the appellant in Algeria honour rights acquired in Algeria by a should be taken into account in migrant worker before 19 January 1965 aggregating the insurance periods. does not decide whether rights acquired before this date also include potential The questions of the Bundessozialgericht rights. relate to the appellant's disablement pension, since the calculation of the If the first question is answered in pension for diminished capacity to work the affirmative the Bundessozialgericht does not pose any particular problem in

Contrary to the opinion of the Bundes­ making of the claim do not enter into sozialgericht, the question whether the consideration; insurance periods completed in Algeria may or must be taken into consideration (ii) The period between 1 July 1962 for the purposes of the acquisition of and 18 January 1965 during which, in rights to benefits in another Member spite of its independence and departure State is different from the question from the Community, Algeria continued whether, as the Court adjudged in Case to be included in the geographical ambit 110/73, French institutions are obliged to of Regulation No 3, the provisions of honour the rights to benefits resulting which were fully applicable to nationals from these insurance periods. Indeed, if of Member States and to the institutions for example one Member State left the of the Community. Any more restrictive Community and refused to honour the interpretation would adversely affect the rights to benefit of migrant workers and principle of legal certainty, and one is if, in addition, no Member State therefore bound in view of the absence of undertook the obligations of the Member any transitional provisions which State leaving the Community, the stipulate any measures of derogation by Member States would still not be exempt the same conclusions as those in respect from the obligation of taking into of the period before 30 June 1962; consideration, for the purposes of aggregation of pension, the insurance (iii) The period from 19 January 1965 periods completed in the Member State to 31 July 1965: as from 19 January leaving the Community. Article 27 of 1965 Algeria ceased to be included in the Regulation No 3 makes the aggregation ambit of Regulation No 3 but by virtue of insurance periods subject to the sole of the transitional rules laid down by condition that the insured has been Article 16 (2) of Regulation No 109/65, subject to the legislation of two or more rights already accrued were not affected Member States. before 1 August 1965.

In application of the internationally the negative it would still be possible to recognized principles of social security allow the insurance periods completed in whereby rights in the course of being Algeria to be taken into account on the acquired are deemed to be accrued rights grounds that the principle of equality of in the narrow sense, as is shown by treatment stated in Article 8 of Article 22 (2) of the International Regulation No 3 obliges France to Convention on Work No 48 on the include migrant workers of other preservation of pension rights of migrant Member States within the scope of its law workers of 1935 and in accordance with No 64/1330 of 26 December 1964. This the case-law of the Court (Judgment of Law grants to French nationals residing 15 July 1964, Van Der Veen, 100 [1964] in France (with the possibility of ECR 565) it should be implied that the extension to foreigners residing in rights acquired within the meaning of France) a full and complete 'validation' of Regulation No 109/65 refer not only to their insurance periods completed in those legal situations where the Algeria before 30 June 1962. materialization of the risk has already given rise to rights to benefit but also to rights in the course of being acquired If one were to accept the hypothesis of arising from the payment of the Bundessozialgericht that the taking contributions which deserve a similar into account presupposes the existence of protection. a right to benefits, one would be led to doubt whether the obligations of France The first question should therefore be in respect of migrant workers who have answered in the affirmative, even if it acquired rights to benefits, one would be were necessary to accept the led to doubt whether the obligations of Bundessozialgericht's view that the France in respect of migrant workers taking into account of insurance periods who have acquired rights in Algeria completed in Algeria is subject to the could by virtue of the principle of existence of a right to draw benefits from equality of treatment, be more extensive French institutions. Since the Court of than those which are imposed upon it Justice has decided that Annex A to directly by virtue of Annex A to Regulation No 3, in its original version, Regulation No 3. obliges the French institution to respect rights accrued in Algeria before 19 If the responsibility for replacement of January 1965 to a migrant worker (Case insurance periods completed in Algeria 110/73) there are no grounds for giving which France has assumed in respect of the expression 'accrued rights' a meaning its nationals extends beyond the other than that which implies their being obligation incumbent upon it, by virtue taken into consideration for the purposes of Annex A to Regulation No 3, to of determining pensions. respect the rights acquired by migrant workers belonging to other Member If the appellant were to claim rights to States, it cannot be held liable to assume benefit against French based on risks this responsibility in respect of migrant which have already materialized, the workers from other Member States question would be whether this claim merely by virtue of the principle of was barred as being out of time which equality of treatment. has not been proved in this case.

the French Law No 64-1330 is intended (b) Observations of the respondent in the to be a compensatory measure directed to main action events which have already occurred. The inclusion of migrant workers within its The respondent points out that the scope would therefore have no effect on institution of a Member State is not itself their freedom to move within the competent to determine whether certain Community. periods constitute, according to the national law of another Member State, insurance periods of that State. This The answer to be given must follows both from the case-law of the categorically be in the negative if the Court of Justice, according to which the Bundessozialgericht seeks to ascertain by regulations permitted the continued means of the second question whether existence of the particular schemes of Article 8 of Regulation No 3 imposes on each Member State, which give rise to the Federal Republic of Germany an separate claims against separate insurance obligation to protect its nationals against institutions, and from the general the loss of insurance periods completed structure of Regulation No 3. in Algeria on the model of France's conduct in respect of its nationals by Since the contribution periods completed means of its Law No 64-1330. The in Algeria are not completed, defined or taken into consideration as insurance principle of equality of treatment stated in Article 8 of Regulation No 3 cannot periods under the German legislation, it is not for a German institution to decide be interpreted so as to impose on other Member States the obligation to give the whether these contributions give rise to a widest protection provided by one right to a pension, that is to say, whether Member State for its nationals. To sum they legally establish the prospect of up, the questions submitted by the court receiving benefits if the risk covered making the reference may be answered materializes, nor to decide whether these as follows: periods may be taken into consideration as insurance periods of a Member State of the European Communities. This 'in so far as is required by the decision is exclusively for the competent acquisition, the maintenance or the French insurance institution since at the recovery of the right to benefits, the time Algeria was a part of France. insurance periods completed in Algeria before 1 August 1965 must be taken into The Commission of the European consideration for the purposes of Communities, represented by its Legal Adviser, Mr Norbert Koch, submitted the determining the pensions referred to in Chapters 2 and 3 of Regulation No 3 of oral observations at the hearing on 14 the Council, even if the risk materialized May 1975. and the request for a pension was The Advocate-General delivered his submitted after that date'. opinion at the hearing on 10 June 1975.

4 The provisions of the abovementioned Chapters 2 and 3 regulate the determination of the benefits which an insured person may claim.

5 In particular Article 27 provides that 'for the acquisition, maintenance or recovery of the right to benefit, where an insured person has been successively or alternatively subject to the legislation of two or more Member States, the insurance periods and assimilated periods completed under the legislation of each of the Member States shall be aggregated in so far as they do not overlap'.

6 Although Algeria gained its independence on 1 July 1962, it only ceased to be regarded as coming within the scope of Regulation No 3 by virtue of Regulation No 109/65 which deleted the reference to Algeria in the annexes to Regulation Nos 3 and 4 with effect from 19 January 1965.

7 Article 16 (2) of Regulation No 109/65 expressly states that this deletion was made 'without prejudice to accrued rights'.

8 Therefore the concept 'accrued rights' must be interpreted as meaning that as far as is necessary for the acquisition, maintenance or recovery of the right to benefit the insurance periods completed in Algeria before 19 January 1965 must be taken into consideration for determining the pensions referred to in Chapters 2 and 3 of Regulation No 3, even if the risk materializes and the claim for the pension is made after that date.

HORST v BUNDESKNAPPSCHAFT

On these grounds,

THE COURT

in answer to the questions referred to it by the Bundessozialgericht by its order of 4 December 1974, hereby rules:

In so far as is necessary for the acquisition, the maintenance of the recovery of the right to benefits, insurance periods completed in Algeria before 19 January 1965 must be taken into

OPINION OF MR REISCHL _ CASE 6/75

consideration in calculating the pensions referred to in Chapters 2 and 3 of Regulation No 3 even if the risk materializes and the claim for a pension is made after that date.

DELIVERED ON 10 JUNE 1975 1

Mr President, containing the 'Definition of territories Members of the Court, and nationals to which and to whom the regulation applies'. In addition to The proceedings for a preliminary ruling, Metropolitan France under the title in which I am today giving my opinion, 'France' Algeria and the Overseas relate to the interpretation of Regulation Departments were included. In Annex B No 3 concerning social security for to Regulation No 3, which, according to migrant workers. A decision is sought as Article 3 of that regulation, 'specifies, for to whether certain insurance periods each Member State, the social security completed by a German in Algeria are to legislation in force in its territory, at the be taken into consideration for the date of adoption of this Regulation, to purposes of the abovementioned which the Regulation applies', includes regulation. under the heading 'France', amongst the legislation applicable in Algeria 'special I should first like to recall the findings in social security schemes, inter alia, the an earlier case, 110/72 (Fiege v Assurance mines' scheme'. These provisions at first Maladie Strasbourg [1973] ECR 1001). remained in existence after Algeria was granted independence. Reference to Until Algeria gained its independence on Algeria was only deleted from Annex A 1 July 1962, it was a part of the territory of Regulation No 3 by Article 5 of of France and was included within the Regulation No 109/65 of the Council of scope of Regulation No 3. This appears 30 June 1965 (OJ No 125 of 9.7.1965) from Annex A to Regulation No 3 which under Article 16 thereof came into