C-112/75

2. Social security — Migrant workers — Old age (pensions) insurance — Algeria — Insurance periods completed before 19 January 1965 — Taking into consideration by French institutions — National of a Member State other than France — Recipient (EEC Treaty, Articles 48 to 51. Regulation No 109/65 of the Council, Ar­ ticle 16 (2))

1. Although the Court, when giving a of workers laid down by Articles 48 to ruling under Article 177, has no 51 of the EEC Treaty implies that jurisdiction to apply Community rules provisions of national law cannot be to a specific case or, consequently, to applied as against a worker who, pronounce upon a provision of whilst residing in France, is a national national law, it may however provide of another Member State, where their the national court with the factors effect is to deprive such a worker of a of interpretation depending on benefit awarded to French workers as Community law which might be regards the taking into account, in useful to it in evaluating the effects of calculating the old-age pension, of such provision. insurance periods completed in 2. The principle of the equal treatment Algeria.

In Case 112/75,

Reference to the Court under Article 177 of the EEC Treaty by the Cour d'appel, Nancy, for a preliminary ruling in the action pending before that court between

1 — Language of the Case: French.

JUDGMENT OF 8. 4. 1976 — CASE 112/75

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

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The Caisse refused to accept this 4. The Cour d'appel, Nancy, considered application on the ground that the law in that the action before it raised a question question is only applicable to aliens if of interpretation of Regulation No 3 and, they satisfy the conditions laid down by on 13 November 1975, decided to Article 2 of Decree No 62-1049 of 4 request the Court of Justice to give a September 1962, that is, in particular, preliminary ruling on two questions that they must have shown devotion to concerning the interpretation of Articles France or rendered exceptional services 2, 3, 8 and 12 of Regulation No 3: to that country. Mr Hirardin referred the '(1) May the discrimination provided for matter to the Commission de Recours between French nationals and aliens Gracieux (committee for administrative by the Decree of 4 September 1962 review of social insurance decisions) be applied to a Community citizen which accepted his application and the where its effect must be to deprive Caisse then decided to take into account him of an old-age pension awarded the period of employment completed in to French nationals? Algeria. (2) Hence, in order to avail himself of the Law of 26 December 1964 which However, the Regional Director of Social takes into account for the purposes Security, Nancy, (hereinafter referred to of old-age benefits periods of as the 'Regional Director' annulled this employment completed in Algeria decision by virtue of his powers before 1 July 1962, must a Belgian of administration and trusteeship. Mr national demonstrate that he fulfils Hirardin then referred the matter to the the conditions imposed on aliens Commission de premiere instance du by the abovementioned Decree of contentieux de la sécurité sociale 4 September 1962?' (Committee of First Instance for Disputes in Social Security matters), 5. After finding in its judgment Longwy, which upheld the decision to referring the case to the Court of Justice take the period of employment in that Mr Hirardin has not brought Algeria into account. sufficient evidence to be able to benefit under Article 2 of the decree of 4

Whereas Article 16 (2) of Regulation No Council of 30 June 1965 (JO No 125 of 109/65 provided for the elimination 9.7.1965, p. 2124). Article 16 (2) of of the reference to Algeria without Regulation No 109/65 itself provided for prejudice to rights already acquired; the deletion from the annexes to Regulation No 3 of the reference to Whereas it is therefore necessary, in this Algeria 'without prejudice to rights instance, to consider the conditions of acquired'. application of Regulation No 3 in the light of the provisions of the Decree of 4 Therefore, as the Court stated in its September 1962 and the Law of 26 judgment in Case 110/73 (Fiege v Caisse December 1964.' Regional d'Assurance Maladie de Strasbourg, [1973] ECR 1001 at p. 1014) 6. The judgment of the Cour d'appel, these provisions show that 'Annex A to Nancy, was received at the Court Regulation No 3, in its former wording, Registry on 25 November 1975. obliges the French social security institutions to honour rights acquired in Written observations were submitted by Algeria by a migrant worker before 19 Mr Hirardin, represented by Mr Borella, January 1965'. Similarly, in its judgment Advocate, of the Nancy Bar, the Regional in Case 6/75 (Horst v Bundesknapp­ Director, the Caisse and the schaft, [1975] ECR 823 at p. 830), the Commission, represented by its Legal Court interpreted the concept of 'accrued Adviser, Marie-Jose Jonczy. rights' to mean that 'as far as is necessary for the acquisition, maintenance or Upon hearing the report of the recovery of the right to benefit the Judge-Rapporteur and the views of the insurance periods completed in Algeria Advocate-General, the Court decided to before 19 January 1965 must be taken open the oral procedure without holding into consideration for determining the any preparatory inquiry. pensions referred to in Chapters 2 and 3 of Regulation No 3, even if the risk materializes and the claim for the II — Written observations sub­ pension is made after that date'. mitted to the Court Secondly, Mr Hirardin maintains that, in 1. Mr Hirardin recalls that under so far as they are incompatible with the Article 27 of Regulation No 3 'For the principle of non-discrimination between acquisition, maintenance or recovery of Community citizens and national the right to benefit, where an insured workers contained in Articles 7 and 8 of person has been successively or Regulation No 3, the provisions of the alternately subject to the legislation of Decree of 4 September 1962 cannot be two ore more Member States, the applied as against migrant workers who insurance periods and assimilated periods are nationals of Member States of the

However, the question should be read as discrimination capable of disrupting the asking the Court to rule on the meaning principle that French nationals and and scope of Regulations Nos 3 and nationals of other Community countries 109/65 to the extent to which, for must be treated equally. calculating old-age benefits, they require that account be taken of periods of 2. The Regional Director of Social employment completed in Algeria before Security, Nancy, observes that the 19 January 1965 by a Belgian national purpose of the two questions put by the who does not fulfil the conditions laid Cour d'appel, Nancy, is in fact to down by the Law of 26 December 1964 discover whether the Law of 26 and the Decree of 4 September 1962. December 1964 must be applied for the benefit of all aliens who, like The reply appears to follow necessarily Community nationals, may seek equal treatment with French nationals on the from the principle of the precedence to be given to Community law. The basis of the international agreements conditions laid down by the Decree of 4 signed by France. September 1962 cannot limit the rights which the individual concerned derives He maintains that, in order to be validly from Community rules. invoked, the principle of equal treatment of aliens and nationals necessarily Secondly, Mr Hirardin considers that implies that the legal position of both the principle of non-discrimination groups is identical, once the question of contained in Article 8 of Regulation No nationality has been set aside. In 3 prohibits the application of the Law of particular, it is not sufficient that the 26 December 1964, the terms of which facts should be apparently identical if may result in French nationals' being they actually represent different legal situations. treated differently from nationals of other Member States. The problem is to determine whether or not the principle The Regional Director maintains that in of equal treatment imposes a duty on the the present instance the facts represent French State to include the migrant different legal situations. workers of other Member States in the field of application of the Law of 26 In this respect the Regional Director December 1964. emphasizes that the Law of 26 December

Algeria, but not as regards aliens, to whom it does not apply. As regards the particular case of Mr Hirardin, his position must, in the The substantive effect of the application ordinary way, be considered in the light of the Law of 26 December 1964 to of the terms of the Convention on Social French recipients of benefits is that their Security concluded between Algeria and rights under the Algerian system are Belgium on 27 February 1968. transformed into rights under the French system. 3. After setting out the facts involved in the action, the Caisse Régionale d'Assurance Maladie du Nord-Est As a corollary, however, its negative effect is that such persons lose any subsequent concludes by leaving the case to the wisdom of the Court. ' right as regards the Algerian system. 4. The Commission recalls that in its As regards old-age pensions insurance, judgments in Cases 110/73 (Fiege) and Protocol No 3 of 19 January 1965, 6/75 (Horst) the Court has already annexed to the Franco-Algerian Con­ acknowledged the liability of French vention on Social Security, exonerates the social security organizations in relation to Algerian institutions from their insurance periods completed in Algeria obligations towards French nationals before 19 January 1965 by migrant residing in France arising put of workers within the meaning of insurance periods completed in Algeria Regulation No 3, even if the risk before 1 July 1962. materializes, and the claim for pension is made, after that date. In so doing, the The application to aliens of the Law of Court based its ruling on Article 16 (2) of 26 December 1964 produces different Regulation No 109/65. effects. It does not transform Algerian rights into French rights, but simply After setting out again the questions put grants French rights and French benefits. by the Cour d'appel, Nancy, the The Algerian social security system is Commission maintains that the present liable for all the Algerian benefits with case is even more significant than those regard to such persons. As regards which gave rise to the two judgments old-age pension insurance the Algerian referred to above, since the insurance

2 These questions have arisen in the context of an action brought by a worker of Belgian nationality residing in France who applied for a period of employment in Algeria between 1957 and 1961 to be taken into account in calculating his old-age pension.

3 The first question asks whether the discrimination provided for between French nationals and aliens by the Decree of 4 September 1962 may be applied as against a Community citizen where its effect must be to deprive him of an old-age pension awarded to French nationals.

4 The second question asks whether, therefore, in order to avail himself of the Law of 26 December 1964 which takes into account for the purposes of old-age benefits periods of employment completed in Algeria before 1 July 1962, a Belgian national must demonstrate that he fulfils the conditions imposed on aliens by the above-mentioned Decree of 4 September 1962?

JUDGMENT OF 8. 4. 1976 — CASE 112/75

5 Article 1 of the French Law of 26 December 1964 provides: 'French nationals who have formerly carried on in Algeria a professional or trade activity, who reside in France and who have acquired, are acquiring or who may acquire rights to old-age benefits payable by Algerian institutions shall be entitled to have account taken of periods of activity as employed or self-employed persons completed in Algeria before 1 July 1962 during which they were affiliated to such institutions'.

6 The Decree of 2 September 1965 extended the area of application of the provisions of that Law to aliens in receipt of one or more benefits awarded within the context of the Decree of 4 September 1962 laying down rules of public administration for the application to certain aliens of the Law of 26 December 1961 on the reception and resettlement of French nationals from overseas.

have preserved on French soil the rights which they derived under the Algerian system and that these rights have been acknowledged and guaranteed by France.

12 In the case of French nationals, this condition is stated to be satisfied by the Franco-Algerian agreement of 19 January 1965, which substituted rights under the French social security scheme for those held by the individuals concerned under the Algerian system, and exonerated the Algerian institutions from their corresponding obligations.

13 It is alleged that aliens are, however, in a different legal situation, since their Algerian rights have not been transformed into French rights and the French institutions cannot rely on subrogation to those rights as against the Algerian institutions.

14 Such reasoning cannot be decisive in determining the reply to the questions referred to the Court in the present case.

15 In fact, the alleged differences are not the result of Community law but rather of the French law and of the bilateral Franco-Algerian agreement which cannot derogate from the provisions of Community law prohibiting all discrimination between workers of the Member States.

16 Furthermore, in its original version Annex A to Regulation No 3 provided that, for the purposes of applying the regulation, Algeria formed part of French territory.

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

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

On those grounds,

THE COURT,

in answer to the questions referred to it by the Cour d'appel, Nancy, by judgment of 13 November 1975, hereby rules:

The principle of the equal treatment of workers laid down by Articles 48 to 51 of the EEC Treaty implies that provisions of national law cannot be applied as against a worker who, whilst residing in France, is a national of another Member State, where their effect is to deprive such a worker of a benefit awarded to French workers as regards the taking into account, in calculating the old-age pension, of insurance periods completed in Algeria.