C-1/80

In Case 1/80

R E F E R E N C E t o the C o u r t under Article 177 of the E E C T r e a t y by the First Chamber of t h e Tribunal de Première Instance [ C o u r t of First Instance], Liège, for a preliminary ruling in t h e dispute pending before that C o u r t between

F O N D S NATIONAL DE RETRAITE DES OUVRIERS M I N E U R S ( F N R O M ) [National Pension Fund for Miners]

and

Y V O N SALMON, of Liège,

on the interpretation of Article 51 of the E E C T r e a t y and Articles 27 and 28 of Regulation N o 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561),

Facts and Issues

I — Facts and written procedure language). By that judgment the Ar- beitsgericht set aside a decision by the Fund depriving Mr Tomitzek, with 1. The Fonds National de Retraite des retroactive effect, of invalidity benefits Ouvriers Mineurs (hereinafter referred to previously awarded to him. as "the Fund"), the plaintiff in the main action, brought an action before the The defendant in the main action Tribunal de Première Instance, Liège, contended in his defence that his failure for damages for professional misconduct to carry out the instructions to lodge the on the part of Yvon Salmon, the appeal at issue did not in any event cause defendant in the main action, in his any damage to the plaintiff in the main capacity as an advocate. action since the interpretation of Community law adopted by the Verviers The Fund accuses Mr Salmon of having court was correct in the light of the failed, despite the issue of instructions to case-law of the Court of Justice. that effect, to lodge an appeal against a judgment delivered on 17 April 1975 by the Eupen Division of the Arbeitsgericht 2. The dispute upon which the Verviers Verviers (Labour Tribunal, Verviers, court adjudicated may be briefly using German as the procedural summarized as follows:

JUDGMENT OF 12. 6. 1980 — CASE 1/80

Mr Tomitzek, a German national, January 1959, all the benefits granted to worked as a miner for 18 years 9 months him by previous decisions. and 20 days in Germany and for 8 years 8 months and 1 day in Belgium. On the application of Mr Tomitzek the case was submitted to the Arbeitsgericht From 1 January 1959 Mr Tomitzek has Verviers. received a Belgian invalidity pension calculated pursuant to Regulations Nos 3 That tribunal decided that the German and 4 after aggregation of the periods pension had been granted pursuant to completed in Germany and in Belgium Regulations Nos 3 and 4 and that only and an apportionment of the share of the the amount of it had been determined in Belgian pension (8/32nds). accordance with German law.

FNROM ν SALMON

decision taken by the plaintiff, but a claim under the provisions of this Community pension which was more Chapter shall not be entitled to claim a advantageous for the person entitled, pension under the legislation of one thereby excluding the application of Member State only." Article 28 (4) of the said Regulation (EEC) No 3?" Subparagraph (f) of paragraph (1) reads as follows: 4. The order making the reference was lodged at the Court Registry on "If the person concerned does not at a 2 January 1980. given date satisfy the conditions required by all the legislative systems applicable to him, but satisfies the conditions of one of In accordance with Article 20 of the them without need of recourse to periods Protocol on the Statute of the Court of completed under one or more of the Justice of the EEC written observations other legislative systems, the amount of were lodged by the Fund, represented by benefit shall be determined solely in Jean Dal of the Brussels Bar, by Yvon accordance with the legislation under Salmon, represented by Roger Bourgeois which the right to benefit is opened and and Paul Remits, advocates of Liège, taking account only of the periods and by the Commission of the European completed under that legislation". Communities, represented by its Legal Adviser, Jean Amphoux, assisted by Francis Herbert, of the Brussels Bar. According to the Fund, except for the particular case referred to under Article 28 (1) (f), by virtue of paragraph (4) of In accordance with Article 95 (1) and (2) that article a migrant worker who of the Rules of Procedure of the Court receives a national pension may no the case was assigned to the Third longer claim entitlement to a Community Chamber. pension arising from Articles 27 and 28.

The judgment of the Arbeitsgericht Verviers leads to a result which is in- equitable and non-sensical: if the court's The Arbeitsgericht Verviers correctly ruling were to be followed, Mr interpreted the consistent case-law of the Tomitzek would not only receive a Court established since the Ciecbelski national German pension higher than judgment, cited above. The effect of that that which would accrue under Articles case-law is that the application of Regu­ 27 and 28 of Regulation No 3, but in lation No 3 cannot result in a worker's addition an apportionment of the Belgian losing his entitlement to national benefits pension. This would on any view be acquired solely under national law if incompatible with Article 28 (4) of Regu- those benefits are higher than those lation No 3. which, in the Member State concerned, result from the application of the rules' on aggregation and apportionment laid down by that regulation. That case-law Finally, the Fund argues that the also permits the overlapping of a benefit judgment of the Court cited by the Ar- acquired solely under national law, with beitsgericht Verviers in support of its another benefit acquired in another decision, and in particular the Ciecbelski State, by means of aggregation, as long judgment [1967] ECR 181, have no as the periods do not overlap. The bearing on this case. principles laid down by the Court of Justice were followed by the Belgian Cour de Cassation [Court of Cassation] in its judgment of 2 October 1974, In conclusion the Fund proposes that the Vittorino ν FNROM following answer be given to the question referred to the Court of Justice by the national court:

" H o w must Article 28 (4) of Regulation in which he is entitled to a benefit No 3, which provides that 'persons who without the need to have recourse to the may claim under the provisions of this aggregation of periods. In this case it Chapter shall not be entitled to claim a therefore concerns only the position of pension under the legislation of one Mr Tomitzek in Germany. It does not Member State only', be interpreted?" relate to the calculation or the conditions for the grant of the supplementary benefit to which Mr Tomitzek is entitled For a summary of the principles laid in Belgium. down by the Court for the interpretation of Articles 27 and 28 of Regulation No 3 the Commission refers to the opinion of Mr Advocate General Warner in Case It is apparent from that observation that 191/73, Niemann [1974] ECR 571. the question of the description of the German benefit in question is of no consequence in order to establish Mr In the light of those principles it is clear Tomitzek's entitlement to a Belgian that Article 28 (4) is incompatible with benefit. The Commission thinks that it is the case-law of the Court to the extent clear that the German benefit granted to which it provides that a worker may was awarded "under the legislation of claim entitlement to a pension only by one Member State only" but that is means of aggregation of periods and the irrelevant since the Fund may not rely on apportionment of benefits save in the Article 28 (4) in any case. case set out by Article 28 (1) (f). In fact the effect of the case-law of the Court is that the method of aggregation and apportionment applies only to the extent to which the non-apportioned national Finally the Commission points out that benefit to which a worker is entitled no national provisions against over­ under national law alone is lower than lapping may be invoked against the grant the amount of the benefit resulting from of an apportioned Belgian pension to Mr the application of the method of aggre­ Tomitzek so long as there is no over­ gation and apportionment. A migrant lapping of periods (Guissart judgment, worker may therefore lawfully acquire [1967] ECR 425). According to the . both a non-apportioned national pension judgment making the reference there are and a pension calculated in another in fact no overlapping periods in this Member State on the basis of Regulation case. No 3. The position would be different only in the event of overlapping periods. In its review of the compatibility of Article 28 (4) with Article 51 of the In conclusion the Commission suggests Treaty the Commission refers in that the question referred to the Court particular to the Balsamo judgment be answered as follows: [1976] ECR 375 and the Niemann judgment cited above.

the legislation of that State alone. That In reply to a question from the Advocate provision may not therefore be invoked General the Commission explained that, by the institution of a Member State regardless of whether Article 28 (4) of which has to pay a pro rata pension Regulation No 3 is or is not applicable calculated pursuant to Articles 27 and 28 to a situation such as this, the provisions of Regulation No 3, in order to refuse to must in any event be regarded as grant that pro rata pension on the ' incomptabile with Article 51 of the grounds that the claimant is receiving a Treaty. In actual fact Article 28 (4) is pension paid by the institution of another based on the premise that a migrant Member State on the basis of the worker's pension may as a general rule legislation of that latter State alone". be calculated only by the method of aggregation and apportionment, an assumption which has been expressly III — Oral procedure rejected by the Court in its consistent The Fund, represented by J. Dal, Mr case-law dating from the Ciecbelski Salmon, represented by R. Bourgeois and judgment. P. Remits, and the Commission of the European Communities, represented by F. Herbert, presented oral argument at The Advocate General delivered his the sitting on 22 May 1980. opinion at the end of that sitting.

Decision

1 By an order of 21 December 1979 which was received at the Court Registry on 2 January 1980 the First Chamber of the Tribunal Civil de Première Instance, Liège, referred a question to the Court of Justice under Article 177 of the Treaty on the interpretation of Article 51 of the EEC Treaty and Articles 27 and 28 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561).

5 The Tribunal Civil de Premiere Instance, Liège, decided to stay the proceedings and referred the following question to the Court for a pre- liminary ruling:

"Did the Arbeitsgericht V e r v i e r s , in its judgment of 17 April 1975, correctly interpret Article 51 of the EEC Treaty and Articles 27 and 28 of Regulation (EEC) No 3 of 25 September 1958 concerning social security for migrant workers by ruling that the German insurance institution, the Bundesknapp- schaft, did not award a purely national pension which would have justified the decision taken by the plaintiff, but a Community pension which was more advantageous for the person entitled, thereby excluding the application of Article 28 (4) of the said Regulation (EEC) No 3?"

6 In connexion with the task entrusted to it by Article 177 the Court has no jurisdiction to review the application of the provisions of Community law to a given case or to criticize the way in which a national court applies Community law. However, the need to arrive at a serviceable interpretation

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of Community law permits the Court to extract from the details of the dispute in the main action the information necessary for an understanding of the question referred to it and for the formulation of an appropriate answer.

7 It is apparent from the file that the purpose of the reference for a preliminary ruling is to enable the national court to determine whether the Fund could properly rely on Article 28 (4) of Regulation No 3 in order to withdraw, with retroactive effect, the benefits previously granted to Mr Tomitzek. The court will therefore examine whether, bearing in mind the provisions of Article 28 (4) of Regulation No 3, Community law allows the competent institution of a Member State to refuse to grant a pro rata pension calculated by applying Articles 27 and 28 of Regulation No 3 to a worker who receives a pension provided by the institution of another Member State pursuant to the legislation of that State alone.

12 The answer to the question referred to the Court should therefore be that the competent institution of a Member State may not rely on the provisions of Regulation No 3 or in particular on Article 28 (4) of that regulation in order to refuse the grant to a worker of benefits calculated pursuant to Articles 17 and 28 of that regulation or to reduce them on the ground that that worker is receiving a pension provided by the institution of another Member State pursuant to the legislation of that State alone.

Costs

13 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. Since the 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 on costs is a matter for that court.

OPINION OF MR WARNER — CASE 1/80

On those grounds,

T H E COURT (Third Chamber),

My Lords, I am so entirely in agreement with what would be served in my asking the Court the Commission has said that no purpose for time to reflect.

I propose that the Court reply to the question referred to it by simply saying that Article 28 (4) of Regulation No 3 is incompatible with Article 51 of the Treaty and is consequently invalid.