C-10/78

In Case 10/78

REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Sozialgericht Gelsenkirchen (Third Chamber) for a preliminary ruling in the proceedings pending before that court between

TAYEB BELBOUAB

1 — Language of the Cast German

JUDGMENT OF 12. 10. 1978 — CASE 10/78

and

JUDGMENT

Facts and Issues

The order for reference and the written October 1960 (155 months in all). At observations submitted pursuant to that time he possessed French nationa­ Article 20 of the Protocol on the Statute lity. In 1960 he emigrated to the Federal of the Court of Justice of the EEC may Republic of Germany to avoid possible be summarized as follows: political difficulties. Since Algeria became independent on 1 July 1962 he has not obtained a French passport; he 1 — Facts and procedure has since possessed Algerian nationality and holds an Algerian passport. The Sozialgericht (Social Court) From 26 May 1961 he worked in Geilenkirchen summarizes the facts as Germany as an underground worker in follows: a mine and, by his 50th birthday, he Tayeb Belbouab, born on 14 April 1924 had completed 142 months of contri­ in Algeria, was an underground worker butions to the old-age insurance scheme in the French mines from 29 March of the Bundesknappschaft. He then 1947 to 17 November 1950 and sub­ applied for a mineworker's pension in sequently from 6 June 1951 to 4 accordance with Article 45 (1) (2) of the

BELBOUAB v BUNDESKNAPPSCHAFT

No 109/65 of 30 June 1965, on the completed the qualifying period in understanding that Regulations Nos 3 accordance with Article 49 (1); or and 4 should no longer apply as from (2) Having reached the age of 50 years, 19 January 1965 to Algeria and no longer has a post whose Algerian citizens. The same naturally economic value is equivalent to the also applies to Regulations (EEC) Nos previous post as a mineworker and 1408/71 and 574/72 which replaced has completed the qualifying period Regulations Nos 3 and 4.

The parties then reached an Tayeb Belbouab's application was arrangement to enable the defendant to rejected by a decision of the Bundes reconsider its decision in the light of the knappschaft of 2 September 1974 on the judgment of the Court of Justice of the ground inter alia that the provisions of European Communities of 26 June 1975 Regulation (EEC) No 1408/71 read in in Case 6/75 (Horst v Bundesknappschaft conjunction with Regulation No 574/72 [1975] 1 ECR 823) in which the Court and the provisions of the ruled that "In so far as is necessary for Franco-German Convention were not the acquisition, the maintenance or the applicable in view of the fan that the recovery of the right to benefits, applicant possessed Algerian nationality insurance periods completed in Algeria and that in consequence the entitlement before 19 January 1965 must be taken to a pension could only be examined in into consideration in calculating the

follows: In its decision of 1 April 1976 the Bun "The plaintiff has been an Algerian desknappschaft reiterated its previous citizen since the independence of view. In the grounds of the decision it Algeria and has been registered as such stated that it was not possible to take

into account the French insurance interpreted as meaning that the periods; nor did the judgment of the insurance periods completed in Court of Justice of the European France by an employed person Communities have any effect on the before 19 January 1965 are to be decision to be adopted, since that taken into consideration if during judgment was concerned with a such periods he was a French German, that is a national of a Member citizen and as such enjoyed the Sute of the Community, who sought to advantages conferred by Article 1 have account taken of periods (a) in conjunction with Annex A to completed in Algeria. Regulation No 3 on social security After a further written protest by the for migrant workers, although at plaintiff in the main action followed by the time of applying for a German a further rejection by the defendant, the pension he possesses Algerian nationality?” plaintiff brought an action for annulment before the Sozialgericht Gelsenkirchen. He stated in support of In the statement on the grounds for its his application that the aforesaid decision the Sozialgericht set out the reasons for its doubts which caused it to Community regulations were applicable to him. The fact that he was sub­ ask the above questions: sequently arbitrarily accorded Algerian — The plaintiff is not one of the nationality cannot be a ground for not Ersens covered by the regulation taking account of the French insurance cause he is not, within the periods; that would be unfairly harsh. meaning of Articles 1 and 2 of Regu­ By order of 7 December 1977 received lation No 1408/71, a national of at the Registry of the Court of Justice one of the Member States, a of the European Communities on stateless person or a refugee as he 1 February 1978 the Sozialgericht has not sought that sutus. stayed proceedings and asked the Court — The nationality of the members of of Justice to give a preliminary ruling his family is irrelevant (cf. Judgment on the following questions: in Case 40/76 of 23 November 1976 "1. Does the legal principle that legal Kermaschek v Bundesanstalt fur rights under public law acquired by Arbеit [1976] ECR 1669). a person's own efforts may not be — On the other hand the plaintiff has encroached upon by sovereign acquired, by virtue of his work, measures without compensation, certain legal rights under public law; which finds expression in German such rights are protected by Article law in Article 14 of the 14 of the Grundgesetz (Basic Law) Grundgesetz (Basic Law), apply in of the Federal Republic of Germany the law of the European in that they cannot be adversely Community? affected by the act of a public 2. Do Regulations Nos 1408/71 and authority without compensation. 574/72 violate that legal principle in — Following the independence of so far as they contain no rule Algeria Article 16 (2) of Regulation corresponding to Article 16 (2) of No 109/65 deleted Algeria from the Regulation No 109/65? Annex to Regulation No 3 "without 3. Or does Article 16 (2) of Regu­ prejudice to accrued rights" (cf. lation No 109/65 continue to apply, Judgment in Case 6/75 of 26 June directly or by analogy, so that 1975 Horst v Bundesknappschaft, Articles 2 (1), 38 (1) and 94 (2) of already referred to) which means Regulation No 1408/71 are to be that such a right, which is similar to

a reversionary interest, is under The order of the Sozialgericht German law to be given the same Gelsenkirchen was received at the Court protection as a proprietary right. Registry on 1 February 1978. In accordance with Anide 20 of the — However, Regulation No 109/65 Protocol on the Statute of the Court of which amended Regulation No 3 "lost its point of reference" by Justice the Commission of the European Communities submitted written obser virtue of the repeal of Regulation

In practical terms the question is whether the regulations in force — Regulations Nos 1408/71 and 574/72 — II — Summary of the written contain provisions which also guarantee observations submitted rights whose maintenance had pre under Article 20 of the viously been ensured by Article 16 (2) Protocol on the Statute of of Regulation No 109/65. It may be the Court of Justice asked whether Article 94 (2) of Regu lation No 1408/71 is henceforward

As regards the time to be taken into 109/65' consideration for determining nati-

onality under Article 2 (1) of Regu­ a territorial scope inasmuch as it has lation No 1408/71 it should be recalled been held that Algeria does fall within that the plaintiff was a French national the field covered by Regulation No 3 until 30 June 1962 and subsequently an until 19 January 1965 and not only until Algerian national from 1 July 1962 by 30 June 1962; the question of nationals' which time he had already worked more and thus of the persons covered by the than a year in the German mines. regulations has not been resolved (see Depending on whether the possession of the above-mentioned Horst judgment). the nationality of a Member Sute is In fact Regulation No 3 was applicable taken into consideration at the time of to the territory of Algeria but not to the acquisition of the right to benefits workers of Algerian origin who, until or at the time when the periods are 30 June 1962, were French nationals. In completed the plaintiff in the main the light of a comparison of Article 16 proceedings is to be regarded as either (2) (a) and Article 5 of Regulation Algerian or French. As the provisions in No 109/65 on the one hand and Annex question (Article 4 (1) of Regulation No A to Regulation No 3 on the other such 3 and Article 2 (1) of Regulation No persons cannot be held to be persons 1408/71 successively) are unclear the covered by Regulation No 3. It cannot Commission inclines to the view that the be envisaged that rights acquired by time of the completion of insurance Algerians should be accorded protection periods should be taken into account as by virtue of a kind of fictitious inclusion otherwise a change of nationality would of Algeria in the territory of the have retroactive effects which would be Community until 19 January 1965; on incompatible with the freedom of the other hand Article 16 (2) of Regu­ movement for workers (in this respect it lation No 109/65 has in the words of may be noted that conversely this view the Sozialgericht lost its "point of might lead to a non-migrant within the reference" since the repeal of Regu­ meaning of Articles 48 to 51 of the lation No 3 and therefore the question Treaty being able to benefit even retro­ whether Algeria falls within the actively from the status of a migrant territorial scope of Regulation worker if he became a national of a No 1408/71 arises in the same terms as Member State). It is therefore preferable at the time when Regulation No 3 was to have regard to the time of the still in force as both regulations take completion of the periods particularly as account of insurance periods completed a textual argument derived from the under the legislation of the Member wording of Article 2 (1) of Regulation States before their entry into force (see No 1408/71 which refers to workers Article 94 (2) of Regulation No 1408/­ "who are” nationals of the Member 71). The fact that Regulation No States. 1408/71 is silent as to the territories

rights forperiods completed in France. that all insurance periods and position is different for periods periods of employment or residence completed after the loss of French completed in the territory of the nationality but that consequence is not a Member States before its entry into matter of Community law. force shall be takten into consideration. As regards the For the plaintiff in the main action the condition contained in Article 2 (1) practical effect of this legal position is of the regulation with regard to that he satisfies the conditions for nationality of a Member Sute, the obtaining the miner's pension under nationality held by the worker when Article 45 (1) (2) of the Reichsknapp­ he completed the insurance periods schaftsgesetz. Under Community law or the periods of employment or the defendant in the main action is residence is decisive. obliged to aggregate insurance periods completed in France by the plaintiff in 2. Regulation No 109/65 relates to the main proceedings with the insurance the inclusion of Algeria in the periods completed in Germany up to 30 territories covered by Regulations Nos 3 and 4. It contains no June 1962. Under the provisions of the Reichsknappschaftsgesetz the defendant provision relating to the inclusion of is obliged to take into consideration all workers of Algerian origin in the the insurance periods completed in the persons covered by the two regu­ Federal Republic of Germany by the lations.” plaintiff, including those months completed before 30 June 1962. The defendant can only satisfy this twofold III — Oral procedure obligation by simply taking into consideration all the insurance periods The Commission, represented by its completed by the palintiff. legal adviser, Mr Koch, presented oral In conclusion the Commission takes the argument and its answers to the view that the following answers may be questions put by the Court of Justice at given to the questions raised by the the hearing on 27 June 1978. Sozialgericht Gelsenkirchen: The Advocate General delivered his “1. Regulation No 1408/71 guarantees, opinion at the hearing on 20 September by the application of Article 94 (2), 1978.

The application was rejected by the competent German body (the Bundes­ knappschaft) on the ground that the plaintiff no longer possessed the nationality of a Member Sute of the Community and therefore Regulation No 1408/71 was no longer applicable to him and in consequence his right to a pension could be examined only on the basis of German law.

A protest by the plaintiff was also rejected on the grounds on the one hand that Regulation No 109 of the Council of 30 June 1965 (Journal Officiel 1965, p. 2124) made Regulations Nos 3 and 4 on social security for migrant workers, and therefore Regulation No 1408/71 which replaced Regulation No 3, inapplicable to Algeria and Algerian nationals as from 19 January 1965 and, on the other, that "it was not a question of what nationality the applicant possessed during the period when he was employed in the French mines, but his nationality at the time of consideration of the application for a pension”.

3 An application for the annulment of that administrative decision was brought before the Sozialgericht Gelsenkirchen which takes the view that the plaintiff, as an Algerian national, is not a person covered by Regulation No 1408/71 since under Article 2 (1) of that regulation it is applicable only to workers who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member Sutes.

BELBOUAB v BUNDESKNAPPSCHAFT

Nevertheless, according to the Sozialgericht, the plaintiff has acquired, by virtue of his efforts and having regard to the insurance periods completed in France, legal rights analogous to a proprietary right under German constitutional law which are protected by Article 14 of the Grundgesetz (Basic Law) and which cannot be taken away without compensation.

6 The persons covered by Regulation No 1408/71 are defined in Article 2 of the regulation as follows: "This regulation shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ...".

That provision lays down two conditions for the application of the regu­ lation :

JUGEMENT OF 12 10. 1978 — CASE 10/78

(a) that a worker is or has been subject to the legislation of one or more Member Sates; and

(b) that the worker is a national of one of the Member States.

7 In order to satisfy the principle of legal certainty, one of the requirements of which is that any factual situation should normally, in the absence of any contrary provision, be examined in the light of the legal rules existing at the time when that situation obtained, the second condition must be interpreted as meaning that the status of being a national of one of the Member States refers to the time of the employment, of the payment of the contributions relating to the insurance periods and of the acquisition of the corresponding rights.

BELBOUAB v BUNDESKNAPPSCHAFT

recourse to the interpretation of Article 16 (2) of Regulation No 109/65 of 30 June 1965 amending and supplementing Regulations Nos 3 and 4 on social security for migrant workers.

In fact Regulation No 109/65 relates to the inclusion of Algeria in the territories covered by Regulations Nos 3 and 4 and contains no provision relating to the inclusion of workers of Algerian origin amongst the persons covered by the two regulations.

Consequently, Article 16 (2) of Regulation No 109/65 is not applicable in the present case as Algeria is excluded from its geographical extent and nationals of the French Union are excluded from the definition of persons covered, whereas the plaintiff worked in France, not Algeria, and was, at that time, of French nationality and not a national of the French Union.

10 The answer given to the third question makes it unnecessary to reply to the first two questions as, interpreted in that way, the provision in question contains no factor of such a kind as to prejudice the fundamental human rights included in the general principles of Community law which the Court must protect.

Costs

force of that regulation shall be taken into consideration for the purpose of determining entitlement to benefits in accordance with its provisions, subject to the condition that the migrant worker was a national of one of the Member States when the periods were completed.

Kutscher Mertens de "Wilmars Mackenzie Stuart

Pescatore Serensen Bosco Touffait

Delivered in open court in Luxembourg on 12 October 1978.

A. Van Houtte H. Kutscher

Registrar President