JUDGMENT OF 10. 10. 1973 — CASE 110/73 FIEGE v ASSURANCE MALADIE STRASBOURG

In Case 110/73 Reference to the Court under Article 177 of the EEC Treaty by the Chambre Sociale of the Cour de Cassation, Paris, for a preliminary ruling in the action pending before that Court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chamber, A. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh (Rapporteur), M. Sørensen and A. J. Mackenzie Stuart, Judges, Advocate General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Written observations submitted to the Court

A — Observations submitted by the Caisse régionale d'assurance maladie de Strasbourg

B — Observations submitted by the Commission

(a) As to the first question

(b) As to the fourth question

(c) As to the other questions

C — Observations submitted by the appellant

(a) As to the first question

(b) As to the second question

(c) As to the third question

(d) As to the fourth question

(e) As to the fifth question

Grounds of judgment

On the first question

On the second question

On the third question

On the fourth question

On the fifth question

Costs

I —. Facts and procedure

1. By judgment of 22 January 1973 the Chambre Sociale of the Cour de Cassation, Paris, requested the Court of Justice of the European Communities to state:

2. The judgment of the Cour de Cassation is based on the following facts:

3. The reference from the Chambre Sociale of the Cour de Cassation, Paris, was lodged with the Registry of the Court on 22 March 1973.

II —. Written observations submitted to the Court

A —. Observations submitted by the Caisse régionale d'assurance maladie de Strasbourg

B —. Observations submitted by the Commission

(a). As to the first question

(b). As to the fourth question

(c). As to the other questions

1. The provisions of Article 30 of Regulation No 4 of the Council which apply to claims for the payment of benefits could also apply to the transfer of invalidity pensions, if such a hypothesis were shown to be possible.

2. The French Social Security institutions are not bound, even subsidiarily, to pay benefits owed by an Algerian institution, by virtue of Regulations Nos 3 and 4, and consequently the answers to Questions 2, 3, 4 and 5 should be negative.

C —. Observations submitted by the appellant

(a). As to the first question

(b). As to the second question

(c). As to the third question

(d). As to the fourth question

(e). As to the fifth question

1. By Order of 22 February 1973, lodged at the Registry of the Court on 22 March 1973, the Court de Cassation of France requested the Court of Justice to give a preliminary ruling on several questions on the interpretation of Articles 10 of Regulation No 3 and 30 of Regulation No 4, and of Regulation No 109/65 of the Council (OJ No 125, 9. 7. 1965), on social security for migrant workers.

2. These questions are raised in relation to proceedings concerning a claim for the assumption by the French institutions of responsibility for the invalidity pension of a German worker who wishes to leave Algeria, where he was granted the pension, to take up residence in the Federal Republic of Germany.

3. The worker, who is the appellant in the main action, is of the opinion that the assumption of responsibility for the pension is justified by the fact that at the time it was granted to him Algeria, according to Annex A to Regulation No 3, was still part of those territories listed under the heading France and was thus deemed to be part of the Community for the purposes of the application of the provisions on social security for migrant workers.

4. The first question asks whether the provisions of Article 30 of Regulation No 4, which apply to claims for grant of benefits, also apply to transfers of invalidity pensions.

5. Article 30 of Regulation No 4 lays down the procedure to be followed in the event of a claim for the grant of benefits under Article 26 to 28 of Regulation No 3 and, in particular, designates the institution which, according to the country in which the claimant is resident, has to investigate the claim.

6. No Community provision exists which provides for the transfer of an invalidity pension from an institution of one Member State to that of another Member State.

7. Article 10 (1) of Regulation No 3, prohibiting the reduction, modification, suspension, termination or confiscation of a pension by reason of the fact that the recipient is resident within a Member State other than that of the institution which services the pension, does not lend support to the theory that the pension can be transferred.

8. Accordingly the answer to the first question must be negative.

9. The second question asks whether the provisions of Annex A of Regulation No 3 which, in their former wording, mentioned Algeria together with Metropolitan France, led to particular obligations for the French Social Security institutions compelling them to pay benefits in cases of default by the Algerian institutions.

10. Annex A of Regulation No 3, at Article 1 (a) under the heading France, makes specific mention of Algeria in the definition of the territories to which it applies.

11. Although Algeria gained its independence on 1 July 1962, it only ceased to be part of the Community for the purposes of the rights of nationals of the Member States by virtue of Regulation No 109/65 of the Council of 30 June 1965, which deleted the references to Algeria in the Annexes to Regulations Nos 3 and 4, with effect from 19 January 1965.

12. Article 16 (2) of Regulation No 109/65 expressly states that this deletion was made without prejudice to acquired rights.

13. In its former wording, therefore, Annex A of Regulation No 3 implies that the French institutions must honour rights acquired in Algeria by a migrant worker before 19 January 1965.

14. Moreover, in view of the prohibition, contained in Articles 48-51 of the Treaty, on any discrimination based on nationality between workers of the Member States, any worker from one of the Member States is to be treated, for the purposes of Regulation No 3, as if he were a national in similar circumstances.

15. Accordingly the answer to the second question must be in the affirmative.

16. The third question asks whether the French Social Security institutions are equally liable in respect of rights to benefits arising in favour of a national of a Member State and recognized by an Algerian institution after Algeria's independence but before the introduction of Regulation No 109/65 of 30 June 1965 expressly excluding Algeria from the territories to which Regulation No 3 applies.

17. The fact that such rights were recognized after 1 July 1962 does not relieve the French Social Security institutions of their liability, which was maintained in respect of those territories listed with France at Annex A until such time as they were struck off at the instigation of the French Republic.

18. Any other finding would constitute a disregard of Article 16 of Regulation No 109/65 which was conceived precisely for the protection of acquired rights.

19. Accordingly the third question must be answered in the affirmative.

20. The fourth question asks whether the French Social Security institutions are equally liable in the event of a claim for transfer addressed to a German institution after Algeria's independence, but which was referred to a French institution only after the introduction of Regulation No 109/65.

21. Article 10 (1) of Regulation No 3 prohibits any reduction, modification, suspension, termination or confiscation of a pension.

22. Thus the appellant in the main action, being in receipt of an invalidity pension, had acquired a right to retain it, without any modification, if he were to take up residence within a Member State other than that of the institution liable to service his pension.

23. The right to a pension acquired as from November 1962 could not be affected by the slowness with which the administration transferred his claim.

24. Accordingly the fourth question must be answered in the affirmative.

25. Finally, in the event of the foregoing questions being answered in the affirmative, the Court is requested to state whether the worker was entitled to address his claim for the transfer of his pension not to the last institution to which he was affiliated, but to a French institution to which he had formerly been affiliated.

26. Such a worker was assimilated to the persons of French nationality mentioned in Annex A to Regulation No 3, placed in similar circumstances, and is thus a Community national subject to a French institution.

27. Article 10 of Regulation No 3 lays down the principle of the immutability of a pension even where the recipient is resident within a Member State other than that of the institution which services the pension.

28. A migrant worker who, before 19 January 1965, was resident within French territory, within the meaning of Annex A to Regulation No 3, is therefore entitled to address his claim to the institutions of that Member State.

30. 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, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that Court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the appellant in the main action and 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 Article 177; Having regard to Regulation No 3 of the Council of the EEC on social security for migrant workers, especially Article 10; Having regard to Regulation No 4 of the Council of the EEC on social security for migrant workers, especially Article 30; Having regard to Regulation No 109/65 of the Council of the EEC on social security for migrant workers; 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 questions referred to it by the Cour de Cassation of France by order of that court dated 22 February 1973, hereby rules:

1 The provisions of Article 30 of Regulation No 4 do not apply to transfers of invalidity pensions.

2 Annex A to Regulation No 3, in its former wording, obliges the French Social Security institutions to honour rights acquired in Algeria by a migrant worker before 19 Janury 1965.

3 The fact that such rights had been recognized by an Algerian institution before 19 January 1965 does not relieve the French institutions of their obligations, even if the claim for transfer was referred to them only after the introduction of Regulation No 109/65.

4 A migrant worker who had been resident within French territory, within the meaning of Annex A to Regulation No 3, before 19 January 1965 is entitled to address his claim to the last French institution to which he had formerly been affiliated.