C-57/75

(Regulation No 3 of the Council, Article 28)

Subparagraph (c) of Article 28 (1) does an invalidity pension it is necessary to not depart from the rule laid down in the take into account the insurance periods preceding subparagraphs, according to completed in one of these States as such which the corollary of the aggregation of insured person does not fulfil the insurance periods and assimilated periods conditions laid down in the other for completed under the legislation of each entitlement thereto and where, under the of the Member States in question is a pro legislation of this latter State, the rata calculation by each of the relevant calculation of benefits is based upon an institutions of the amounts of the average wage or an average contribution, benefits. without regard to the length of the period of employment, the pro rata Accordingly, in circumstances in which calculation must be made after for an insured person who has been aggregation of all the insurance periods, successively subject to the legislation of as provided in Article 28 (1) (b) of two Member States to acquire a right to Regulation No 3.

In Case 57/75

Reference to the Court under Article 177 of the EEC Treaty by the Cour de Cassation, Chambre Sociale, of France for a preliminary ruling in the action pending before that court between

1 — Language of the Case: French.

JUDGMENT OF 9. 12. 1975 -CASE 57/75

composed of: R. Lecourt, President, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

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

gives the following

JUDGMENT

Facts

The judgment making the order for was forced to give up work as a result of reference and the written observations illness; he first of all received sickness submitted under Article 20 of the insurance benefits and, as from 1 August Protocol on the Statute of the Court of 1954, was awarded an invalidity pension Justice of the EEC may be summarized by the German social security institution as follows: on a pro rata basis in relation to insurance periods completed in the Federal Republic. I — Facts and procedure On the basis of Regulations Nos 3 and 4 1. Mr Fernand Plaquevent, a French concerning social security for migrant national residing in the Federal Republic workers, and in particular on the basis of of Germany, was employed in France Article 53 of Regulation No 3, Mr from 1 December 1931 to 30 September Plaquevent applied in 1961 to the 1944 and in the Federal Republic of French social security institution for an Germany from 1 October 1944 to 12 invalidity pension by virtue of his December 1952. At that latter date he previous employment in France.

concerned did not satisfy the conditions payable to the person concerned by required for the award of such a pension the institution in question; and that in his case the insurance periods completed in the Federal Republic had (c) Where, under the legislation of one therefore to be taken into account in Member State, benefits are calculated order for him to acquire a right to a on the basis of an average wage, an pension. The Caisse therefore aggregated average contribution or an average the French and German insurance increase, or on the ratio between the periods, making a total of 77 quarterly claimant's gross wage during the periods of which 44 were completed in completed contribution periods and France, calculated the amount of the the average gross wage of all insured pension for accounting purposes in persons other than apprentices, such accordance with Article 28 (1) (c) of average figures or ratios shall be Regulation No 3 and in this way awarded determined for the calculation of the the individual concerned a pension benefits payable by the institution of calculated pro rata with the length of that state, taking into account only the periods completed in France as the insurance periods and compared with the overall duration of his assimilated periods completed under working life in France and in Germany, the legislation of the said Member that is, forty-four seventy-sevenths of the State, or taking into account the amount of the pension for accounting gross wage of the person concerned purpose. in respect of such periods ...'

As the Cour de Cassation considered that open the oral procedure without holding the issue involved in this instance raised any preparatory inquiry. a question of interpretation of Regulation No 3 it decided on 11 June 1975 to stay II — Written observations sub­ the proceedings and to refer the mitted under Article 20 of following question to the Court of the Protocol on the Statute Justice under Article 177 of the EEC Treaty: of the Court of Justice of the EEC 'Whether in circumstances in which for an insured person who has been A — Written observations submitted successively subject to the legislation of by Fernand Plaquevent two Member States to acquire a right to an invalidity pension it was necessary to Mr Plaquevent observes that Article 28 take into account the insurance periods (1) of Regulation No 3, which concerns completed in one of these States as such the method of calculation of a pension, insured person did not fulfil the makes a distinction between two conditions laid down in the other for situations according to whether the entitlement thereto and where, under the criterion used as the basis for calculation legislation of this latter State, the is that of the 'duration of insurance' or a calculation of benefits is based upon an different criterion, such as, for example, average wage or an average contribution, that of the 'average wage'. without regard to the length of the period of employment, the pro rata These two situations are referred to by calculation must be made after subparagraphs (a) and (b) and by aggregation of all the insurance periods, subparagraph (c) of the abovementioned as provided in Article 28 (1) (b) of Article respectively. Regulation No 3, as occurs in the other Member State in order to supplement the The provisions of subparagraph (a) recall benefits awarded by that State on the the principle of aggregation for basis of the insurance periods, or whether acquisition of a right to a pension. The the entire pension must be awarded provisions of subparagraph (b) set out the without making any pro rata method of calculation of the amount of calculation'. the benefit. For this purpose they refer to

the situation in which the right to the is only possible where aggregation is pension has been acquired under the envisaged not only for the purpose of the preceding provisions, that is, as a result acquisition of a right to a pension but of the 'aggregation' of all the insurance also, and in particular, for the award of periods or assimilated periods, and they benefits. Its application thus presupposes provide for resort to this system of that the criterion used as a basis for such aggregation in order to determine the award is that of the 'duration of amount of the benefit for accounting insurance'.

not only for the purpose of the acquisition of a right to a pension but In these circumstances, the provisions of also for the determination of the amount Article 28 (1), concerning the conditions to be paid. This being so it is quite under which a right to the pension is reasonable for them to have provided, as acquired, should not be confused with regards the determination of that those of the same article concerning the amount, for the application of the method of calculation of the benefits. principle of pro rata calculation. That The provisions of subparagraphs (b) and principle is the logical corollary of (c) cannot be applied in a cumulative aggregation once this enters into the manner. The are mutually exclusive

that no reference should have been made to a pro rata calculation: since aggregation of periods of insurance was employment in the other Member States necessary not merely for the purpose of is not taken into account in determining entitlement to a pension but also for the the amount of the pension to be paid it award of that pension. On the other is hardly necessary to resort to a pro rata hand, Article 28 (1) (c) excludes a pro calculation in order to reduce this rata calculation in situations where, amount by dividing it up among several although necessary for the purpose of social security institutions. entitlement to a pension, aggregation is not necessary for the award of that In other words, an analysis of Articles 27 pension, since periods completed abroad and 28 shows that a pro rata calculation are not taken into consideration, the sole

criterion adopted for the calculation 'In circumstances in which for an being that of the average wage, average insured person who has been successively contribution or average increase, which subject to the legislation of two Member affect only those periods completed in States to acquire a right to an invalidity the State in which the pension is pension it was necessary to take into claimed.' account the insurance periods completed in one of these States as such insured B — Written observations submitted person did not fulfil the conditions laid by the Caisse Primaire d'Assu down in the other for entitlement thereto rance Maladie du Havre and where, under the legislation of this latter State, the calculation of benefits is After setting out the facts preceding the based upon an average wage or an main action and analysing the provisions average contribution, without regard to of Article 28 (1) of Regulation No 3 the length of the period of employment, which are at issue in this instance the the pro rata calculation must be made Caisse observes that subparagraphs (a) after aggregation of all the insurance and (b) of that article provide that all periods, as provided in Article 28 (1) (b) insurance periods and assimilated periods of Regulation No 3, as occurs in the shall be aggregated and that the amount other Member State in order to for accounting purposes obtained in supplement the benefits awarded by that respect of all those periods under the State on the basis of the insurance sole legislation of the Member State in periods.' which the pension is claimed shall be calculated pro rata with 'the length of C — Written observations submitted by the periods completed under the said the Commission of the European

. . national legislation in question: that of completed under the legislation of the the duration of the insurance periods or said Member State'. The solutions that, for example, of the average wage. adopted by Article 28 (1) under subparagraphs (b) and (c) respectively are On the contrary, both in its original thus analogous. In both cases the amount version and as amended (cf. Regulation of the pension is in fact determined by No 47/67 of the Council of 7 March reference to those periods of insurance 1967), subparagraph (c) of Article 28 (1) alone which were completed in the lays down a rule for the calculation of Member State which must pay the the amount of the benefit for accounting

PLAQUEVENT v CAISSE PRIMAIRE D'ASSURANCE MALADIE DU HAVRE

years. Since, during that period, Mr reduction of the benefit by calculating it Plaquevent was employed in Germany, pro rata temporis is justified. in accordance with Article 28 (1) (c) the average wage was fixed on the basis not According to the established case-law of of the wages received in Germany but of the Court it is now accepted that if those received during the period in aggregation is not necessary for the which he was insured in France. acquisition of a right to benefit in accordance with Article 27 of Regulation The rule contained in that provision thus No 3, there can be no pro rata constitutes a means of simplifying the calculation, that is, Article 28 is calculation of the amount for accounting inapplicable.

In the case of subparagraph (c) does not set aside the possibility of the benefit being awarded Type A legislation it cannot be employed pro rata where the legislation of the to give entitlement if the individual Member State in question also makes the concerned is no longer subject to that amount of the benefit dependent upon type of legislation. The purpose of the the duration of the insurance periods system of aggregation is also to enable a factor which came into existence in one completed. This applies in particular to Member State and which is decisive for the French legislation concerning old-age pensions, the calculation of the acquisition of a right to benefit in which is based upon the wage received another Member State to be regarded as during the ten best insurance years and having occurred in the latter State.

JUDGMENT OF 9. 12. 1975 -CASE 57/75

In the Commission's view it may This being so, to the extent to which the therefore be concluded that where a right Court has condemned the generalized to benefit is acquired by means of use of pro rata calculations and where aggregation the reduction which results it is merely a question of reducing a from the calculation of the benefit pro benefit in order to avoid overlapping, rata temporis is justified to the extent to it is questionable whether there is which it is inversely proportionate to the justification for the application of rules advantage represented by aggregation, for the reduction of pensions which are without which the worker has no right to different according to whether the right benefit. However, in order to draw this is acquired without aggregation or after conclusion it must be borne in mind that aggregation. The Commission observes the pro rata calculation fulfils a dual on this point that if the individual purpose. First, it meets a technical concerned, having the same duration of requirement for the calculation of the insurance in Germany and in France, amount of a benefit (the right to which is had last worked in France rather than in only acquired after aggregation) where Germany and had suffered his such amount is not determined on the disablement in France, there would have basis of the 'duration of insurance' but on been no need to aggregate and he would the basis of the 'frequency of have been entitled to the total pension in contributions' (United Kingdom and France in addition to his German

PLAQUEVENT v CAISSE PRIMAIRE D'ASSURANCE MALADIE DU HAVRE

Law

1 By judgment of 11 June 1975 received at the Court on 2 July 1975 the Cour de Cassation of France referred to the Court under Article 177 of the EEC

Treaty a question on the interpretation of Article 28 of Regulation No 3 concerning social security for migrant workers.

2 This question has been raised in the context of proceedings concerning the calculation by the competent French institution of the invalidity pension of a French national, the appellant in the main action, who had worked first in France, from 1 December 1931 to 30 September 1944, and then in the Federal Republic of Germany, from 1 October 1944 to 12 December 1952.

3 At this latter date the German insurance organization paid the worker, who had become disabled, sickness insurance benefits and then, as from 1 August 1954, awarded him an invalidity pension calculated pro rata with the insurance periods completed in the Federal Republic of Germany.

9 It therefore aggregated the French and German insurance periods, making a total of 77 quarterly periods of which 44 were completed in France, calculated the amount of the pension for accounting purposes in accordance with Article 28 (1) (c) of Regulation No 3 and awarded the individual concerned a pension calculated pro rata with the insurance periods completed in France.

10 The appellant in the main action challenged the legality of that decision on the grounds that it infringed Articles 27 and 28 of Regulation No 3 and, in particular, that it applied Article 28 (1) (b) and (c) in a cumulative manner.

11 In the opinion of the appellant, although a pro rata calculation is possible in the situation referred to in subparagraph (b), that is, where the criterion adopted for the award of the pension is based upon the duration of insurance, it is not possible in the situation referred to in subparagraph (c), where the legislation of the State in which the pension is claimed bases the calculation of benefits on criteria other than the duration of the insurance periods.

12 The Cour de Cassation asks 'Whether in circumstances in which for an

insured person who has been successively subject to the legislation of two Member States to acquire a right to an invalidity pension it was necessary to take into account the insurance periods completed in one of these States as such insured person did not fulfil the conditions laid down in the other for entitlement thereto and where, under the legislation of this latter State, the calculation of benefits is based upon an average wage or an average contribution, without regard to the length of the period of employment, the pro rata calculation must be made after aggregation of all the insurance periods, as provided in Article 28 (1) (b) of Regulation No 3, as occurs in the other Member State in order to supplement the benefits awarded by that State on the basis of the insurance periods, or whether the entire pension must be awarded without making any pro rata calculation'.

16 Subparagraph (c) states: 'Where, under the legislation of one Member State, benefits are calculated on the basis of an average wage, an average contribution or an average increase, or on the ratio between the claimant's gross wage during the completed contribution periods and the average gross wage of all insured persons other than apprentices, such average figures or ratios shall be determined for the calculation of the benefits payable by the institution of that state, taking into account only the insurance periods and assimilated periods completed under the legislation of the said Member State, or taking into account the gross wage of the person concerned in respect of such periods ...'.

17 According to the first words of subparagraph (b) a pro rata calculation shall be carried out in every case in which the right to a pension is acquired under subparagraph (a); its purpose is therefore to determine the amount of the benefit, the right to which would not have been acquired without the process of aggregation.

JUDGMENT OF 9. 12. 1975 -CASE 57/75

18 On the other hand, the sole purpose of subparagraph (c) is to free the relevant institutions of Member States in which a pension must be calculated on the basis of an average wage, an average contribution or an average increase, of the obligation to take into account, in order to determine that average, the wages received, the contributions paid or the increases granted in another Member State.

19 As a result, that subparagraph does not depart from the rule laid down in the preceding subparagraphs, according to which the corollary of the aggregation of insurance periods and assimilated periods completed under the legislation of each of the Member States in question is a pro rata calculation by each of the relevant institutions of the amounts of the benefits.

In circumstances in which for an insured person who has been successively subject to the legislation of two Member States to

PLAQUEVENT v CAISSE PRIMAIRE D'ASSURANCE MALADIE DU HAVRE

acquire a right to an invalidity pension it is necessary to take into account the insurance periods completed in one of these States as such insured person does not fulfil the conditions laid down in the other for entitlement thereto and where, under the legislation of this latter State, the calculation of benefits is based upon an average wage or an average contribution, without regard to the length of the period of employment, the pro rata calculation must be made after aggregation of all the insurance periods, as provided in Article 28 (1) (b) of Regulation No 3.

Lecourt Donner Mertens de Wilmars

Pescatore Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 9 December 1975.