C-50/75

HELGA MASSONET, widow of Bernard Weber, residing at Colmar-Berg (Luxembourg)

on the interpretation of Regulation No 3 of the Council concerning social security for migrant workers (OJ 30 of 16 12. 1958, p. 561), and especially Articles 12, 27 and 28,

THE COURT

composed of: R. Lecourt, President, H. Kutscher, President of Chamber, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen and A. F. Mackenzie Stuart, Judges,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

The order making the reference and the The Bundesversicherungsanstalt first written observations submitted under determined the amount of the benefit to Article 20 of the Protocol on the Statute which Mrs Weber would have been of the Court of Justice of the EEC may entitled if all the previous periods had be summarized as follows: been completed under its own legislation and then fixed the amount which it was its duty to pay in proportion to the I — Facts and procedure duration of the periods actually completed under German legislation in 1. Mr Bernard Weber of Luxembourg relation to the total duration of the nationality, who was born on 25 July periods completed under the legislation 1930, died on 14 September 1967 leaving of the two Member States concerned. a widow, Mrs Helga Weber née Massonet and two children born in 1963 and 1965. The Caisse de pension des employés He had worked from 1954 to 1962 in the privés, Luxembourg, for its part granted Grand Duchy of Luxembourg where he Mrs Weber a pension as from the same paid contributions for 67 months; from date. Whilst calculating advances of this October 1965 to 1 September 1967 he pension it had taken into account the was affiliated to the Bundesver­ special increases provided for in case of sicherungsanstalt für Angestellte, Berlin, premature death, in accordance with in respect of employment in Germany Article 4 of the Law of 25 October 1968 for 13 months. which was concerned with the reform of invalidity and death insurance within the The Bundesversicherungsanstalt granted contributory pension schemes. Later the the widow a pension with effect from 1 Caisse de pension changed its mind and September 1967. It based the calculation refused to include the special increases in of that pension on the Law known as the question in the calculation of the Angestelltenversicherungsgesetz and on Luxembourg pension. The latter are due Regulations Nos 3 and 4 (EEC) to a widow who is bringing up a child concerning social security for migrant and whose husband dies before attaining workers. In the first place it decided that 55 years of age. They are granted for all in accordance with paragraph 45 (2) of complete calendar months remaining that Law, the widow had a right to an from the beginning of the entitlement to increased pension, known as 'erhöhte a pension until the completion of the Hinterbliebenenrente' since the widow fifty-fifth year of age. They are fixed at was responsible for at least one child who 1·6 % of the normal monthly minimum had a right to an orphan's pension. For social wage during the periods preceding that reason it took into account not only the completion of the thirty-fifth year of the insurance months actually completed age and at 1·6 % of the minimum by Mr Weber, but also the number of monthly social wage increased by 20 % months remaining between the date of for the subsequent period, subject to his death and the date on which he certain special provisions. would have attained 55 years of age, a period called the 'Zurechnungszeit', Mrs Weber then made an appeal against which is in the present case 215 months. the decision of the Caisse de Pension to

the Conseil arbitral des assurances there has been later affiliation, the sociales which by a judgment of 20 right is available only through December 1972 decided that she was recourse to aggregation, it being entitled to the special increases. By order furthermore established that the of 4 July 1974, the Conseil supérieur des amount of the increase to be paid assurances sociales upheld the judgment by the social institution of the first of the Conseil arbitral des assurances State is not dependent upon the sociales. duration of affiliation but is constituted by a fixed sum of The Caisse de pension appealed against money payable for each month that order to the Cour supérieure de still remaining until the time Justice, which decided, in a judgment of when the deceased person would 15 May 1975 to stay the proceedings and have attained fifty-five years of

Do Article 51 of the Treaty of Rome successive, alternate or cumulative and Articles 27 and 28 of Regulation affiliation to contributory pension No 3 of the EEC concerning social schemes, special increases in security for migrant workers prevent pension on the grounds of the the widow who is receiving from the premature death of an affiliated second State an increased pension person must be paid by the determined by aggregation and on a pension institution to which the pro rata basis, from receiving insured person was last affiliated, simultaneously in the first State a and can it, where appropriate, have special increase of pension such as the effect of releasing the that specified above under paragraph institution thus designated from (b) of the first question, without the the internal point of view by latter increase being determined on a domestic legislation wholly or pro rata basis? partially from its obligation to bear the cost of the special increases 2. In the order making the reference,

CAISSE DE PENSION DES EMPLOYÉS PRIVÉS v MASSONET

view of the situation of the late Weber aforementioned Community rules since and of his dependant, Mrs Weber, these instead of supplementing one another articles do not impose on the the benefits are superimposed on one Luxembourg Caisse de pension the another. liability to pay special increases. Since Weber was in fact affiliated to a The appellant also puts forward a third German social security institution at the submission based on the infringement of time of his death — and as Article 12 of Article 51 of the Treaty of Rome and of Regulation No 3 provides in general that Articles 27 and 28 of EEC Regulation wage-earners or assimilated workers No 3, in that the decisions in the earlier employed in the territory of one Member stages of the case wrongly failed to State shall be subject to the legislation of require that the special increase in that State even if they reside in the Luxembourg should be determined pro territory of another State — it follows rata with the insurance periods from this that he was not insured with completed in the Grand Duchy of the Luxembourg Caisse de pension so Luxembourg and in the Federal Republic that his dependants cannot claim from of Germany, whilst 'both natural justice the Caisse the benefit of the special and a wide interpretation of the increase introduced by the combined expression 'benefits' included in Article provisions of Article 6 of the Law of 25 51 of the Treaty of Rome and Article 27 October 1969 and Article 8 of the Law of of Regulation No 3 and the prohibition 16 December 1963 which had as their of overlapping of insurance periods object the coordination of pension require that the special increase should schemes, according to which in case of be determined pro rata on the basis of successive, alternate or cumulative the periods completed by Weber in affiliation to contributory pension Germany and in the Grand Duchy of schemes, the special increase granted in Luxembourg.' case of disablement or death of the

question amounts to whether, when there second State in which there has been a has been successive affiliation to a later affiliation, the right is acquired only pension scheme in Member State A and by aggregation and apportionment, in no then to a pension scheme in Member way alters the reply which was given State B, Member State A can, under under 1 (a) above.' Article 12 of Regulation No 3, apply the provisions of its own legislation to the The Commission illustrates its reply to scheme of Member State B. the second and third questions by a summary of the Luxembourg and Recalling that Article 12 is a rule of German legislation relating to the conflict of laws and referring to calculation of the survivor's pension, paragraphs 7 and 8 of the judgment of recalling inter alia that in the two the Court of 5 December 1967 (Case countries the pension is calculated on 19/67, Van der Vecht [1967] ECR 345), the basis of the invalidity pension to the Commission claims that the which the deceased husband would have Luxembourg legislation is applicable to been entitled if, instead of dying he had Mr Weber for the period of work which become incapable of work. he completed in Luxembourg and that as soon as he works in Germany, the As there is in the present case, in its German legislation is applicable to him. view, a partial overlapping of periods Article 12 therefore has the opposite since one part of the German pension is effect to that relied upon by the calculated on the basis of a fictitious Luxembourg Caisse de pension. insurance period, which is the same as that which is used as the basis of the Further, it is undeniable that Article 6 of calculation of the special increase the Luxembourg Law of 25 October 1968 provided for by the Luxembourg is a purely internal rule of coordination. legislation, the Commission considers To transpose it to the Community level, that the two questions concern the Regulation No 3, which itself lays down problem how far pension increases rules for the coordination of national provided for by the legislation of two legislation at the Community level, Member States which refer to the same would have to contain either a similar fictitious insurance period, may be provision or a provision referring the cumulated, particularly in the case where matter to the national legislations. It one of the pensions is calculated by must be stated that such provisions do aggregation and apportionment and the not exist in Regulation No 3. other is an independent pension.

obtained under national legislation alone, it would be necessary for such legislation because the Court has forbidden to exist in Luxembourg, which does not generalized apportionment and it follows appear to be the case. from this that, even if in one State aggregation has been necessary for the In a more general way, the Commission acquisition of the right to a pension, that asks if it would be fair to apply Article 11 does not justify apportionment in in such cases. It points out that with such another State where the right is acquired a solution there would be no legal without aggregation. certainty; it would be difficult to establish what is the exact amount of the To reply to the third question, it suffices pension to be inferred and, since that consequently, in the opinion of the would depend upon the state of the Commission, to quote the Court which legislation of the Member States considers that The acquisiton of a right concerned, the result would be great to benefit, conferred solely by virtue of uncertainty. The unfairness of such a the national law of one State and based result would be equalled only by its on contribution periods completed in inconsistency.

That statement to this problem, since Article 11 of of the Court must be understood as Regulation No 3 expressly provides that leaving to the national institutions the it does not apply to old-age and death possibility of applying the principle that insurance. periods must not overlap in accordance with the procedures laid down by their The Commission refers, however, to the national legislation in the absence of case-law of the Court (Judgment of 6 procedures laid down by Community December 1973 in Case 140/73, rules which in fact do not exist. Mancuso, [1973] ECR 1149 and the Judgment of 13 December 1967 in Case 12/67, Guissart, [1967] ECR 425) from Consequently, the Commission suggests which it appears inter alia that Article that the Court should reply to the second 11 may be interpreted to the effect that it and third questions in the following

Further, States.

2 These questions are raised within the context of proceedings concerning the calculation of the benefits by way of a survivor's pension of the widow of a Luxembourg citizen who, after working first in Luxembourg and then until the time of his death in the Federal Republic of Germany, had completed 67 insurance months in the first State and 13 in the second.

3 The German insurance institution, because of the fact that the widow was bringing up children, awarded her an increased pension calculated on the basis, not only of the insurance months actually completed by the deceased, but also of the number of months remaining between the date of his death and the date on which he would have attained the age of 55 years.

4 The amount which the German institution was required to pay was then fixed in proportion to the period actually completed under German legislation in relation to the total duration of the periods completed under the legislation of the two States concerned.

CAISSE DE PENSION DES EMPLOYÉS PRIVÉS v MASSONET

5 The Luxembourg institution, although awarding the widow a survivor's pension, refused to grant with it the special increase which the law allows in favour of a widow bringing up a child where the husband dies before the age of 55 years and which consists of a fixed sum of money payable for each month which has still to run until the time when the deceased would have

attained the age of 55 years.

11 In cases in which the regulations confer on workers social security benefits which they would otherwise be unable to obtain, limitations may be imposed on them corresponding to the advantages which they derive therefrom.

JUDGMENT OF 25. 11. 1975 — CASE 50/75

12 In the absence of such a counterbalance, such limitations cannot be justified since they would result in placing the worker in a situation less favourable than that which, were it not for the regulations, would follow from the application of national law.

The first question

13 The first question asks whether Regulation No 3 and more especially Article 12 according to which wage-earners employed in the territory of one Member State shall be subject to the legislation of that State may affect a provision of the internal legislation of a Member State providing that in case of successive alternative or cumulative affiliations to contributory pensions schemes, special increases in pensions because of the premature death of a person affiliated must be paid by the pensions institution to which the insured person was last affiliated, and, according to the circumstances, have the effect of freeing the institution thus designated at national level by national legislation, from its obligation to bear the relevant special increases.

14 More specifically it is asked what is the reply to be given when in a first State the right to the increase is acquired by virtue of national legislation alone, and without there being any need to have recourse to the so-called aggregation procedure, whilst in a second State in which there has been a subsequent affiliation, the right is acquired only through recourse to aggregation.

19 The third question asks whether these Community provisions prohibit the widow who in the second State obtains an increased pension calculated by aggregation and apportionment from benefiting simultaneously in the first State from a special increase such as that specified above, without this latter increase being apportioned.

20 Article 51 of the Treaty and Article 27 of Regulation 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.

21 To remedy this situation these rules 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.

22 As regards old-age and death pensions, Articles 27 and 28 of Regulation No 3 apply to this situation, but not when in a State the object sought by Article 51 is attained under the national legislation alone.

JUDGMENT OF 25. 11. 1975 — CASE 50/75

23 The provisions referred to cannot therefore have the effect of depriving those entitled under a deceased insured person of a benefit to which they are entitled by virtue of the provisions of the applicable national legislation alone.

29 Therefore the three questions raised should be answered to the effect that Article 51 of the EEC Treaty and Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers, especially

CAISSE DE PENSION DES EMPLOYÉS PRIVÉS v MASSONET

Articles 12, 27 and 28 must be interpreted as meaning that they do not authorize a national insurance institution to reduce the benefits which are due to a worker or those entitled under him by virtue of national legislation alone and without recourse to the procedure of aggregation.

Costs

30 The costs incurred by the Commission of the European Communities which has submitted its observations to the Court are not recoverable.

31 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

Delivered in open court in Luxembourg on 25 November 1975.

A. Van Houtte R. Lecourt

Registrar President