C-268/78

JUDGMENT OF II. 7. 1979 — CASE 268/78

sustained an accident at work and who wages paid in the State in which the has worked successively in one or more person concerned was working at the Member States is the average wage for a time of the accident, in accordance with given period, such average wage is to be the rules and the method of calculation determined solely by reference to the prevailing in that State.

In Case 268/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour de Cassation of France (Social Chamber) for a preliminary ruling in the proceedings pending before that court between

JEAN-LOUIS PENNARTZ, Cannes-la-Bocca,

and

PENNARTZ v CAISSE PRIMAIRE D'ASSURANCE MALADIE DES ALPES-MARITIMES

JUDGMENT

Facts and Issues

I — Facts and procedure wage or salary or, where appro­ priate, of the average of the 1. Regulation No 3 of the Council standard wages or salaries concerning social security for migrant corresponding to the periods workers (journal Officiel 1958, p. 561) completed under the said provides in Article 18 (1), which comes legislation. under Chapter I ("Sickness, Maternity") (3) The competent institution of a of Head III: Member State whose legislation "Where, under the legislation of one provides that the amount of cash Member State the payment of cash benefits shall vary with the number benefits is related to the average wage of members in the family shall take into account also the members of over a given period, the average wage to be reckoned for the calculation of such the family of the person concerned benefits shall be based on actual wages who are residing in the territory of obtained during the period completed another Member State, as if they under the legislation of such Member were residing in the territory of the State". competent State."

JUDGMENT OF 11. 7. 1979 — CASE 268/78

Article 103: person concerned in his various employments the latter amount shall form the basis for calculation of the

"The wage forming the basis for the pension in accordance with the first calculation of the daily allowance and paragraph of this article." pension pursuant to Articles 46 and 48 of the Law of 30 October 1946 [Code de la Sécurité Sociale, Articles 449 and 451] comprises all wages or earnings relating 3. Jean-Louis Pennartz, a French to the period to be taken into national residing in France, worked in consideration in each of the cases herein­ France from 1966 to 1967, in Belgium after referred to in Articles 104 and 108 from August 1967 to December 1968, taking account, where appropriate, of and has worked in France from 7 April benefits in kind and gratuities, after 1969. On 25 April 1969 he sustained an deducting trade costs and workshop accident at work for which the Caisse costs and excluding family allowances Primaire d'Assurance Maladie des Alpes- prescribed by law and employers' social Maritimes (hereinafter referred to as security contributions." "the Fund") granted him from 3 May 1970 an invalidity pension at the rate of 4% permanent partial invalidity which Article 108: was subsequently increased to 6%.

PENNARTZ v CAISSF. PRIMAIRE D'ASSURANCE MALADIE DES ALPES-MARITIMES

The Commission de Recours Gracieux 4. The judgment making the reference [Appeals Board] of the Fund found in was received at the Court Registry on favour of Mr Pennartz in a decision of 27 December 1978. 11 March 1975 but the Regional Director of Social Security, Marseilles, annulled that decision. The Direction Regionale des Affaires Sanitaires et Sociales Provence- Alpes-Côte d'Azur [Regional Board for Health and Social Matters for Provence, Mr Pennartz was unsuccessful in his the Alpes, and the Cote d'Azur] and the applications to have the annulment set Commission of the European aside, either by the Commission de Communities submitted written obser­ Premiere Instance du Contentieux de la vations pursuant to Article 20 of the Sécurité Sociale des Alpes-Maritimes Protocol on the Statute of the Court of [Tribunal of First Instance for Social Justice of the EEC. Security Appeals for the Alpes- Maritimes] or the Cour d'Appel [Court of Appeal] Aix-en-Provence, and After hearing the report of the Judge- brought the matter before the Cour de Rapporteur and the views of the Cassation. Advocate General, the Court decided to assign the case to the First Chamber pursuant to Article 95 of the Rules of Procedure. It also decided to open the The Cour de Cassation took the view oral procedure without any preparatory that settlement of the case concerned the inquiry. interpretation of provisions of Community law and decided, by a judgment of 22 November 1978, to stay the proceedings and to refer the following question to the Court of II — Written observations sub­ Justice pursuant to Article 177 of the mitted pursuant to Article EEC Treaty: 20 of the Protocol on the Statute of the Court of Justice of the EEC

wages established during the period This follows from the very wording of completed under the legislation of that Article 18 (1) which shows clearly that Member State. the words "under the legislation of such Member State" relate to the expression "period completed". The interpretation advanced by Mr Pennartz to the effect (B) The Commission of the European that the said provision merely establishes Communities first makes some pre­ the competence of the law of the liminary remarks on the scope of the Member State concerned for fixing the provisions of Article 18 (1) read in duration of the reference period conjunction with Article 30 (2) of Regu­ employed as the basis for calculating the lation No 3. pension is directly at variance with the meaning of the words and amounts to confusing the "reference period" for the It states first that the above-mentioned calculation of the average salary with the provisions are solely concerned with "period completed" under the legislation cases in which, pursuant to the of the competent Member State. This legislation applicable, cash benefits interpretation also disregards the scope payable to a person who has sustained an of the Community provisions in question accident at work or an occupational by attributing to them the role of disease must be calculated on the basis of determining the law applicable which is an average wage. These provisions are in fact determined by Articles 12 to 15 of accordingly not applicable to pensions the said Regulation No 3. determined on the basis of the actual total remuneration of the worker.

PENNARTZ v CAISSE PRIMAIRE DASSURANCE MALADIE DES ALPES-MARITIMES

State which is responsible for payment of the sums in question into the currency of the pension is not necessarily indentical the country in which the benefit is with that of the wages received on the awarded. The rule laid down in Articles territory of that State. Although that is 18 (1) and 30 (2) is concerned to avoid normally the case under Article 12 of these very difficulties. Regulation No 3 it nevertheless remains that, in certain situations which are also contemplated in Title II of that regu­ The further point may be made that the lation, the worker may be subject to the above-mentioned rule is more often legislation of a Member State other than favourable to the person concerned than the one in which he is employed. In such the reverse. At any rate if during the a situation the competent social security period concerned economic conditions institutions must clearly take account of are normal, the wages most recently the remuneration received in Member received by the worker will probably be States other than those whose legislation higher than those which he may pre­ applies to them. viously have received under the legislation of another Member State. It is in fact reasonable to suppose that it was the prospect of improving his occupation and income which prompted the worker The Commission then recalls that the to emigrate and to change his provisions of Articles 18 (1) and 30 (2) employment. by no means constitute a special case. In fact they merely express a more general idea which applies both in the social legislation of the Member States and in other parts of the same Regulation No 3 (old-age pensions and death benefits, On the basis of these considerations the unemployment benefits) whenever the calculation of benefits must be Commission suggests that the question determined on the basis of wages. submitted should receive the following answer:

1 By a judgment of 22 November 1978, which was received at the Court of Justice on 27 December 1978, the Cour de Cassation of France submitted to the Court of Justice pursuant to Article 177 of the EEC Treaty a preliminary question on the interpretation of certain provisions of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel, 1958, p. 561).

2 This question was raised in the course of an action between Mr Pennartz, a worker of French nationality residing in France, who, on 25 April 1969, sustained an accident at work there, and the Caisse Primaire d'Assurance Maladie des Alpes-Maritimes [Central Sickness Fund for the Alpes- Maritimes] (hereinafter referred to as "the Fund") concerning the award of an invalidity pension in connexion with that accident.

3 The judgment making the reference indicates that the Fund granted Mr Pennartz from 3 May 1970 a pension for accident at work at a rate of permanent partial invalidity of 4%, which was subsequently increased to 6%. The Fund calculated the amount of the pension from an average wage based solely on the wage actually received by him in his employment at the time of the accident. In this connexion the Fund proceeded on the basis of the provisions of Article L 451 of the French Social Security Code and on Articles 103 and 108 of Decree No 46-2959 of 31 December 1946.

PENNARTZ v CAIS5E PRIMAIRE D'ASSURANCE MALADIE DES ALPES-MARITIMES

4 Mr Pennartz contested this method of calculation, claiming that the wage taken as the basis for the calculation of the pension must be determined not only in terms of the wage received in his employment at the time of the accident but also of the higher wage which he had in fact received previously in Belgium. The Fund took the view inter alia that its method of calculation was in accordance with the provisions of Article 18 (1) of Regulation No 3 of the Council and Mr Pennartz then maintained that it had misapplied that provision which, in his view, merely determined the law applicable in fixing the reference period and in no way affected the determination of the wage to be taken into account in calculating the pension.

JUDGMENT OF 11. 7. 1979 — CASE 268/78

"Where, under the legislation of one Member State, the payment of cash benefits is related to the average wage over a given period, the average wage to be reckoned for the calculation of such benefits shall be based on actual wages obtained during the period completed under the legislation of such Member State."

8 Article 18 (1) should not be interpreted as merely determining the legislation applicable for fixing the reference period for the average wage without affecting in any way the determination of the remuneration to be taken into consideration in calculating the pension. Apart from the fact that such an interpretation is contrary to the very wording of that provision, it would deprive it of all practical purpose since the legislation applicable has already been settled by Articles 12 to 15 in Head II of the regulation in question.

9 On the other hand it is clear from both the wording and the objectives of Article 18 (1) that that provision is intended to establish, where, under the legislation of one Member State, the basic wage employed in calculating cash benefits is the average wage over a given period, the remuneration of which ..the competent institution must take account in order to determine that wage and it provides for that purpose that the remuneration to be taken into consideration is the wage "obtained" during the periods of work completed under the legislation of such State.

10 If, having regard to the provisions of Articles 12 to 15 of the regulation, the legislation applicable is that of the Member State on whose territory the worker was employed at the time when the accident occurred, the wage "obtained" within the meaning of Article 18 (1) constitutes only the wages paid in the reference period, established in accordance with that legislation, on the territory of. that State.

THE COURT (First Chamber),

in answer to the question referred to it by the Cour de Cassation of France by a judgment of 22 November 1978, hereby rules:

In pursuance of Articles 18 (1) and 30 (2) of Regulation No 3 of the Council, where, under the legislation of one of the Member States, the basic wage to be reckoned for the calculation of cash benefits due to a person who has sustained an accident at work and who has worked successively in one or more Member States is the average wage for a given period, such average wage is to be determined solely by reference to the wages paid in the State in which the person concerned was working at the time of the accident, in accordance with the rules and the method of calculation prevailing in that State.

Mertens de Wilmars O'Keeffe Bosco

Delivered in open court in Luxembourg on 11 July 1979

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber