C-146/93

M C L A C H L A N v CNAVTS

OPINION OF ADVOCATE GENERAL LENZ delivered on 24 March 1994 "

Mr President, main proceedings (hereinafter 'the plaintiff'), Members of the Court, who was born on 6 April 1924 and has dual French and British nationality, was employed during his working life both in Great Britain and in France. H e was employed first in Great Britain from 1948 to 1955 and then from 1956 to 1985 in France, where he was made redundant on A — Introduction 16 December 1985 at the age of 61. He there- upon applied to the competent unemploy- ment insurance institution, Assedie, 2 in order to receive unemployment benefit. O n the basis of Article L.351-18 of the Code du Travail and the implementing Decree 82-991 of 24 November 1982, which exclude from 1. The reference for a preliminary ruling unemployment benefit claimants who are from the Chambre Sociale of the French over 60 years old and have completed Cour de Cassation which gives rise to these 150 quarterly periods recognized for the pur- proceedings raises a question of the interpre- poses of pension insurance, Assedie referred tation and application of Article 49 of Regu- the plaintiff to the Caisse Nationale lation (EEC) N o 1408/71 ] with respect to d'Assurance Vieillesse des Travailleurs Sala- the determination of the rate and amount of riés (hereinafter 'the CNAVTS'). an old-age pension. The national court seeks an interpretation in particular in the context of the principle of equal treatment laid down in Article 3(1) of the regulation.

— First possibility: the plaintiff had at least 150 quarterly periods, completed under the French and British systems without overlapping. Since the English legislation provided for payment of a pension only from the age of 65, the pen- 6. The plaintiff considered himself disadvan- sion insurance institution would pay the taged by being allocated only a (partial) pen- claims exclusively on the basis of the sion and took legal proceedings. From the French system, for which reason the administrative procedure before the pension choice of the date from which the plain- insurance institution through to his submis- tiff received the pension was of impor- sions to the Cour de Cassation the plaintiff's tance. argument was that either he should be awarded a full pension from the French pen- sion insurance institution on the basis of the 150 completed quarterly periods, or else only the 120 quarterly periods completed under the French scheme should be taken — Second possibility: the plaintiff had not into account, which would have resulted in completed 150 quarterly periods. The his continuing to receive benefits from the pension insurance institution would unemployment insurance scheme. refuse the application, so that Assedie could continue to pay him benefits.

B — Analysis

8. The Cour de Cassation, which has to decide on the plaintiff's claim as the highest court of appeal, refers the following question The question referred for a preliminary rul- to the Court of Justice: ing

Are Article 3(1) and Article 49 of Regulation N o 1408/71 of 14 July 1971 to be inter- preted, where entitlement to an old-age pen- 10. The question formulated by the national sion is available from the age of 60 under the court suggests that it desires to be informed basic statutory scheme of a Member State to whether the periods of insurance completed a worker under the age of 65 who has com- by the plaintiff in Great Britain are to be pleted periods of employment in that State taken into account only for determining the and in another Member State where there is rate of the pension, or whether they should no entitlement to a pension before the age also be taken into account in determining the of 65 years, as precluding the taking into amount of the benefits. That would mean account of the periods completed in the lat- that the national court was concerned only ter State solely in order to determine the rate with the question whether the plaintiff can of the pension which may be paid immedi- claim only a partial pension on the basis of ately by the institution of the former State? the 120 quarterly periods completed in France or full pension on the basis of the total of 150 relevant quarterly periods.

9. The plaintiff, the French Government, the German Government and the Commission

3 — From 1 November 1993 the EC Treaty, in accordance with 11. The German Government evidently the Treaty on European Union of 7 February 1992 (OJ 1992 C 224, p. 1). understood the question in that way, adopt-

12. It can be seen from the context of the 'Subject to the provisions of Article 49, when question referred for a preliminary ruling a claim for the award of a benefit is lodged, and also from the submissions of the parties such award must be made having regard to that the question as to the taking into all the legislations to which the employed or account of periods of insurance completed in self-employed person has been subject. another Member State when calculating the Exception shall be made to this rule if the amount of the benefit is only part of the point of Community law involved. From the point of view of Community law it is 4 — And other pensions too in certain cases, such as invalidity already doubtful whether periods of insur- benefits, widows' pensions and orphans' pensions (see Arti- cle 39(5) and Article 44(1) of Regulation No 1408/71 as ance completed in another Member State amended).

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MCLACHLAN v CNAVTS

15. Article 45, in fulfilment of the obligation stated in Article 51(a) of the EC Treaty, reg- ulates the 'consideration of periods of insur- 18. Secondly, the competent institution cal- ance or residence completed under the legis- culates the pro rata benefit, also called the lations to which an employed or self- proportionate benefit, under Article 46(2). employed person has been subject, for the That calculation also comprises two steps. acquisition, retention or recovery of the right The competent institution first, applying to benefits'. 6 Article 45, adds together all the periods com- pleted under the legislations of the various Member States and on that basis calculates a theoretical amount of benefit, as if all the periods to be taken into consideration had been completed under the legislation admin- istered by it. Only after that does the compe- 16. Article 46 contains the actual provisions tent institution reduce the theoretical on the calculations to be carried out by the amount proportionately in the ratio which competent institution for the award of the the periods actually completed under that benefit. The calculation is necessarily done in legislation bear to the periods completed several stages. under the legislations of one or more other Member States.

5 — 'Contraint et forcé', see page 3 of the plaintiff's observations. 6 — See the heading of the article. 7 — See the judgment in Case C-342/88 Spits [1990] ECR 1-2259.

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OPINION OF MR LENZ — CASE C-146/93

21. The award of the benefit made by the CNAVTS in the national proceedings corre- Taking into account of periods of insurance sponds to the calculation of the proportion- completed in another Member State for the ate pension prescribed by Article 46(2). It is acquisition of the right consistent with Community law in that the quarterly periods completed in another Member State — in this case Great Britain — entered into the calculation to establish a contingent right. The proportionate reduc- tion of the theoretical amount to a benefit

23. As I have already indicated above, that 8 — See note 1. by no means exhausts the problems of Com- 9 — See Article 51 of the EC Treaty and Article 45 of Regulation No 1408/71. munity law involved.

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24. Article 49 of the regulation contains a 26. So far Article 49 contains a straightfor- special rule for the calculation of the benefit ward reference to the provisions on calcula- when the person concerned does not simul- tion in Article 46 of the regulation discussed taneously satisfy the conditions laid down above. by all the legislations under which he has completed periods of insurance or resi- dence. 10 The plaintiff's case is such a case. The national court has therefore expressly asked for an interpretation of Article 49. 27. Article 49(l)(b), however, goes on to say:

'However: 25. Article 49(1) states that:

completed under the legislations whose con- employed persons), without its being nec- ditions are not satisfied, the amount of the essary to take into account the periods com- benefit payable shall be calculated in accor- pleted in the United Kingdom'. 12 dance with the provisions only of that legis- lation whose conditions are satisfied, taking account of the periods completed under that legislation only.'

31. Whether Article 49(l)(b)(ii) is applicable to the circumstances of the present case depends also on what meaning is attributed to it. In my opinion that provision assumes that the conditions for an independent pen- 29. The parties disagree as to whether that sion are satisfied. The provision would then provision applies in the present case. Thus have to be understood as meaning that in the the plaintiff's observations contain the case of a right to an independent benefit, the phrase: benefit is determined by that method of cal- culation only, that is to say, the calculation of the proportionate pension and the ensuing comparison of the results of the two calcula- tions do not take place.

'it being understood that [the plaintiff] does not satisfy the conditions of either of the two cases in subparagraph (b)\ n

32. It must be pointed out in clarification, in my opinion, that an independent benefit does not necessarily have to be a full benefit. An independent benefit can be characterized as follows: it must be a right to a benefit 30. The French Government's observations, which is 'payable under national legislation on the other hand, state that: alone on the basis solely of the periods com- pleted under that legislation'. ,3

benefit, is supported by the fact that it is per­ 35. It is not for the Court of Justice to fectly possible for several independent bene­ examine the French legislation to see fits to exist alongside each other. Moreover, whether the plaintiff is entitled to an inde­ an independent benefit can be acquired on pendent pension as defined above. It is for the basis of relatively short periods of insur­ the authorities of the Member State or the ance M compared with a complete insurance national court to apply national law to the record, if that is provided for in the relevant facts. Nevertheless, the observations of the legislation. If an independent pension was French Government permit the conclusion always a full benefit, the comparison pre­ that that is the case. It is stated on page 5 of scribed in Article 46 of the independent ben­ the observations that: efit with the proportionate benefit would generally be superfluous, since the amount corresponding to a full benefit is the ceiling for a proportionate benefit. 1 5

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O P I N I O N OF MR LENZ — CASE C-146/93

37. The above observations are made on the 40. The plaintiff has repeatedly and emphat- assumption that Article 49(l)(b)(ii) is appli- ically asserted that he has been treated less cable. I have assumed that that provision favourably than an employee with the same excludes the comparative calculation in Arti- periods of insurance in the same system, as a cle 46. Even if Article 46 does apply, the legal result of having completed additional periods consequences are comparable. For calcula- of insurance in another Member State. tion of the independent benefit within the meaning of Article 46(1), the first stage in the calculation, what has been said above applies by analogy.

41. In applying Community law, the aim of the relevant provisions is to be taken into account. The Court has held with reference 38. Calculation of an independent benefit to the interpretation of Article 46 of Regula- must necessarily take place before the com- tion N o 1408/71 that: petent institution calculates the proportion- ate benefit in accordance with Article 46(2). Only if a comparison of the results of the two calculations shows that the amount of the proportionate pension exceeds that of the independent benefit is the proportionate pension paid.

'The aim of Articles 48 to 51 [of the Treaty] would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State.' 22 In a more recent judgment 39. If the plaintiff had had the right to an the Court went even further, making a state- independent benefit and if that benefit math- ment of identical content and then adding ematically had been at least as high as the the words 'or find themselves in a position proportionate benefit calculated, then that less favourable than if they had worked all would have been that and the independent the time in one Member State'. 23 benefit would have had to apply. 21

42. With reference to the aggregation of migrant worker must not be placed in a periods of insurance, the Court held that: worse position as a result of the application of Community law than he would be in if only one of the legislations concerned were applied. That principle is in my opinion to be applied not only with respect to the arith- metical comparison of the benefits calculated 'Article 51 of the Treaty deals essentially using the different methods in accordance with the case in which the laws of one Mem- with Article 46, but also to other cases where ber State do not by themselves allow the per- migrant workers are placed in a worse posi- son concerned the right to benefits by reason tion in the context of old-age insurance. It of the insufficient number of periods com- was therefore not permissible for the plaintiff pleted under its laws, or only allow him ben- to be put in a worse position than he would efits which are less than the maximum.' 24 have been in if the law of the Member State applied exclusively. The comparison to see which method of calculation is the more favourable for the claimant must be done by the competent authority.

43. The Court drew the following conclu- sion with respect to the proportionate pen- sion:

46. The intermediate conclusion must there­ fore be that for the acquisition of the right to an independent benefit on the basis of the periods of insurance completed under the 49. Both the prohibition in Community law system of a Member State, only those periods of discrimination on the grounds of national­ are to be taken into account. Aggregation for ity 2 8 and the prohibition of indirect discrim­ the acquisition of a claim of all the periods of ination 2 9 have the aim of preventing workers insurance completed in the various Member who take advantage of freedom of movement States takes place only for calculation of the from being disadvantaged. That principle of proportionate benefit. Community law must also be observed when applying the law of a Member State. After all, the general principle of equality 3 0 is also a general principle of law in the Community legal system. If it does not apply directly in any case as a fundamental right in national The prohibition of discrimination law, it can be applied via Community law.

47. The plaintiff complains that the applica­ tion of the law in his case is incompatible with the prohibition of discrimination under 50. In case the French law of pensions also Community law, which finds expression in recognizes periods of insurance completed Article 3(1) of Regulation 1408/71. Under under another system as equivalent, it must that provisions:

be examined whether these are periods to system are to be taken into account for the which a realizable right corresponds. Unjus- calculation of an independent benefit with tified inequality of treatment could in certain respect both to the rate and to the amount of cases result from the taking into account of the pension. If on the basis of those periods periods of insurance completed in another no right exists, or for the purposes of a com- Member State, if no realizable right corre- parative calculation, the periods of insurance sponds to them. completed in other Member States are aggre- gated to those completed under the applica- ble system. Those periods are disregarded, however, for calculation of the amount of the 51. Accordingly, the answer to be given to benefit to be calculated on that basis. Of the the national court, in response to its request two calculations, only that which is the more for a preliminary ruling, should be that only favourable to the person concerned is taken the periods completed under the applicable into account in the further procedure.

C — Conclusion

52. I propose that the following answer be given to the question referred for a pre- liminary ruling: