JUDGMENT OF 22.3.1972 — CASE 80/71 MERLUZZI v CAISSE MALADIE PARIS

In Case 80/71 Reference to the Court under Article 177 of the EEC Treaty by the Commission de première instance du contentieux de la sécurité sociale et de la Mutualité Sociale Agricole de Paris for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice

Observations submitted by the Commission of the European Communities

Grounds of judgment

Costs

I —. Summary of facts and procedure

1. Mrs Adalgisa Merluzzi, an Italian national residing in Morocco, was in employment in that country over a period of more than ten years from 1930.

2. A certified copy of the decision making the reference was received at the Court Registry on 9 September 1971.

II —. Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice

1. By judgment of 25 March 1971, received at the Court Registry on 9 September 1971, the Commission de Première Instance du Contentieux de la Sécurité Sociale de Paris requested the Court to give a preliminary ruling under Article 177 of the EEC Treaty on the question whether the provisions of Article 2(1) and (2) of the Moroccan dahir of 12 August 1913, extending to foreign nationals the enjoyment of private rights accorded in France by French Law to French nationals, imply that a national of a Member State of the Community who relies on these provisions was subject to French legislation either on a compulsory or optional basis within the meaning of Article 4 of Section IV of Annex G to Regulation No 3 of the Council.

2. As worded, the question seems to have the purpose of interpreting the Moroccan dahir of 12 August 1913 so as to determine the ambit of the French legislation referred to in Section IV B of Annex G to Regulation No 3.

3. The Court, whilst having jurisdiction to interpret the provisions of Community law, has no jurisdiction in the context of Article 177 to rule on provisions of internal law.

4. However, it may extract from the question referred those elements which relate solely to the interpretation of Section IV B of Annex G to Regulation No 3.

5. Under Section IV B of Annex G to that regulation, the French Law No 65/555 of 10 July 1965, granting French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, is applied to nationals of the other Member States subject to two conditions.

6. Under the first condition, the occupation giving rise to voluntary insurance under the French scheme must not be or have been engaged in either on French territory or on the territory of the State of which the worker is a national.

7. In addition, the worker must at the time of applying to take advantage of the law, produce evidence either that he has been resident in France for at least ten years — whether or not consecutive — or that he has been subject to French legislation on a compulsory or optional continued basis during the same period.

8. It appears from the file supplied by the national court that the case bears particularly on the question whether the plaintiff in the main action, an Italian national, who has worked neither on French territory nor in Italy but in Morocco, was subject to French legislation on a compulsory or optional continued basis.

9. Thus, in order to know whether the case falls within Annex G, it appears necessary to inquire first whether the person concerned has resided in France for at least ten years.

10. That is a question of fact, which it is not for the Court of Justice but for the national court to decide.

11. However, the benefit of Annex G may also be claimed if the worker has been subject for at least ten years to French legislation on a compulsory or optional continued basis.

12. That question, which concerns solely the application of French law, or possibly of Moroccan law, is not as such one which the Court of Justice has jurisdiction to decide.

13. Only if the national court were to consider that the plaintiff in the main action was subject to French legislation would she, as a consequence, have under Annex G the option of joining the voluntary old-age insurance scheme.

14. In that connexion it should be observed that Regulation No 3 itself defines the term legislation as it appears in its provisions, including those of Section IV B of Annex G.

15. It emerges from Article 1 of that regulation that the term refers to the laws, regulations and other enforceable provisions present and future of each Member State relating to the social security schemes and branches of social security set out in Article 2(1) and (2).

16. The answer should therefore be that Section IV B of Annex G to Regulation No 3 must be interpreted as meaning that Law No 65/555 of 10 July 1965, granting to French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, applies to nationals or the other Member States who, at the date of their application, have been subject for at least ten years to one of the French schemes listed in Article 2(1) and (2) of Regulation No 3.

17. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable, and as these 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, costs are a matter for that court.

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 European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to Regulation No 419/68 of the Council of 5 April 1968 (JO 1968, L 87); Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; 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 Commission de Première Instance du Contentieux de la Sécurité Sociale de Paris, by order of that court dated 25 March 1971, hereby rules: