JUDGMENT OF 5. 7. 1967 — CASE 1/67 CIECHELSKI v SÉCURITÉ SOCIALE ORLÉANS

In Case 1/67 Reference to the Court under Article 177 of the EEC Treaty by the Social Chamber of the Cour d'Appel, Orleans (France), for a preliminary ruling in the action pending before that court between

THE COURT composed of: Ch. L. Hammes, President, A. Trabucchi and R. Monaco, President of Chambers, L. Delvaux, A. M. Dormer, R. Lecourt and W. Strauß (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Question put by the Cour d'Appel, Orleans

III — Procedure

IV — Summary of the observations of the Commission of the EEC

Grounds of judgment

I —. Facts

1. The applicant, who was born on 11 November 1898, contributed in Germany and in France successively to old-age pension insurance for a total of 134 quarters, comprising 21 quarters in Germany and 113 quarters in France.

2. When he reached the age of 62 he requested payment of his French pension. At that time, the applicant did not qualify for a pension in respect of the periods completed in Germany as he had not reached the age of 65 years as required by German legislation. The qualification for the French pension was therefore considered without reference to the insurance periods in Germany and the pension was paid having regard only to the insurance periods in France. As from 1 December 1960 the French Caisse Régionale granted to the applicant, on the basis of a period of 113 quarters completed in France, benefit amounting to 731 FF per quarter until 1 November 1963.

3. When he attained the age of 65 the applicant applied jointly to the German and French institutions.

4. The applicant objected to this method of calculation and also to the request for repayment; according to him it would be irregular for the defendant to pay him a pension less than the one which he could claim if the French system alone applied to him.

II —. Question put by the Cour d'Appel, Orleans

III —. Procedure

IV —. Summary of the observations of the Commission of the EEC

(1). The Commission believes that it can extract two matters of concern from an analysis of the case-law of the Court (judgment in Case 100/63, Kalsbeek nee van de Veen [1964] E.C.R. 565; judgment in Case 4/66, Labots nee Hagen-beek, Rec. 1966, p. 617 et seq.): it is necessary on the one hand to avoid depriving the migrant worker of rights which he has acquired outside the application of Community law, and on the other hand allowing this application to have the effect of giving him through accumulation the benefit of advantages to which he is not entitled. Clearly the reference from the Cour d'Appel, Orléans, has the object of obtaining from the Court a statement of the scope of the first of these rules in relation to cases such as the present one.

(2). The Commission considers that the case-law of the Court leads to the conclusion :

A —. As the Court has held in its judgment in Kalsbeek nee van de Veen that Article 28 of Regulation No 3 is applicable to legislation which does not make the amount of the benefit dependent upon the length of the insurance period, an identical reply must be given when it is a question of legislation which requires a maximum length of insurance in the calculation of pensions.

B —. The method of calculation adopted by the defendant institution results in the loss for the person concerned of rights acquired in France, which is contrary to the spirit of Community law.

(1). Under the terms of Articles 28 (1) (a), the provisions of that article, and in particular subparagraph (b) which provides for the so-called proportional calculation, appear to be applicable equally to every insured person covered by Article 27 of this Regulation—that is to say, having been successively or alternately subject to the legislation of two or more Member States—as well as to the institution of each of the Member States. Nevertheless, under the terms of the said subparagraph (b) proportional calculation shall be used when the right to benefit is acquired by virtue of subparagraph (a), that is to say, taking into account the aggregation of periods completed under the legislation of various States in accordance with Article 27, which suggests a contrario that proportional calculation is excluded if, according to the national legislation in question, the right of the insured person is acquired without the need to refer to periods completed by virtue of the legislation of other States. This interpretation finds support in Article 27 (1) which provides for aggregation only for the acquisition, maintenance or recovery of the right to benefit, but not for calculating the amount of benefit, the expression used in Article 51 of the Treaty. In fact, that wording seems to limit aggregation to cases in which it is necessary in order to establish a right to benefit and to exclude it in cases where it would have the effect simply of maintaining or varying the content of a right already acquired by virtue of national legislation alone.

(2). In view of the difficulties of interpretation of these provisions it is necessary to consider them in the light of Articles 48 to 51 of the Treaty which the regulations in the field of social security have as their basis, their framework and their bounds.

(3). Having regard, nevertheless, to the complexity of the legislation of Member States and that arising from the provisions of Community law, this principle cannot be regarded as an absolute rule. In particular it can be valid only in so far as its application does not provide the insured person with benefits exceeding those expressly provided for by Article 51 of the Treaty or the regulations adopted in implementation thereof.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Articles 48 to 51 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), especially Articles 27 and 28; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question referred to it by the Cour d'Appel, Orleans, by judgment of that court of 22 December 1966, hereby rules:

1 When in one Member State the right to benefit arises without its being necessary to refer to periods completed under the legislation of other Member States, the competent institution of the first State is not empowered to apply Articles 27 and 28 of Regulation No 3 in order to reduce the benefit which it is obliged to pay by virtue of its own legislation, at least in so far as that benefit does not relate to periods which have already been taken into account in the calculation of the amount of the benefit paid by the competent institution of another State;

2 Articles 27 and 28 of Regulation No 3, when interpreted in the manner set out above, are not contrary to Article 51 of the EEC Treaty;

3 It is for the Cour d'Appel, Orleans, to decide upon the costs of these proceedings.