JUDGMENT OF 28. 5. 1974 — CASE 191/73 NIEMANN v BUNDESVERSICHERUNGSANSTALT

In Case 191/73 Reference to the Court under Article 177 of the EEC Treaty by the Sozialgericht, Freiburg, for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute of the Court of Justice of the European Economic Community

A — Observations of Mr Niemann

B — Observations of the Bundesversicherungsanstalt fur Angestellte

C — Observations of the Commission

(a) As regards the first sentence of Article 28 (3) of Regulation No 3

(b) As regards Article 13 (1) (b) and (S) of Regulation No 4

Law

Costs

I —. Facts and procedure

II —. Observations submitted under Article 20 of the Statute of the Court of Justice of the European Economic Community

A —. Observations of Mr Niemann

B —. Observations of the Bundesversicherungsanstalt fur Angestellte

C —. Observations of the Commission

(a). As regards the first sentence of Article 28 (3) of Regulation No 3

(b). As regards Article 13 (1) (b) and (S) of Regulation No 4

1. By order of 15 November 1973, registered at the Court on 17 December, the Sozialgericht, Freiburg, in pursuance of Article 177 of the EEC Treaty, asked whether the first sentence of Article 28 (3) of Regulation No 3 of 25 September 1958 (OJ No 30 of 16 December 1958, p. 561/58) and Article 13 (1) (b) and (5) of Regulation No 4 of the same date (OJ No 30 of 16 December 1958, p. 597/58), both concerning social security for migrant workers, are compatible with Article 51 of the Treaty.

2. This question is raised in the context of an action relating to the determination of the rights with regard to old age pensions of a German citizen who, having worked successively in the Federal Republic of Germany and in France, completed 437 months' insurance in the first Member State and 138 in the second, and who, in addition, continued to pay voluntary contributions in Germany during the periods in which he worked in France.

3. According to Article 28 (3) of Regulation No 3: If the amount of benefit which may be claimed independently of the provisions of Article 27, in respect of the insurance periods and assimilated periods completed under the legislation of one Member States, is greater than the total benefits resulting from implementing the foregoing paragraphs of this Article, the person concerned shall be entitled to receive from the institution of that State a supplement equal to the difference.

4. For the national court it is essentially a question of whether the application which has been made of the provisions relied on is based on an accurate interpretation of their tenor and if so whether these provisions are compatible with Article 51 of the Treaty.

5. The regulations in the field of social security for migrant workers have as their basis, their framework and their bounds Articles 48 to 51 of the Treaty.

6. Article 51 of the Treaty deals essentially with the case in which the laws of one Member State do not by themselves allow the person concerned the right to benefits by reason of the insufficient number of periods completed under its laws, or only allow him benefits which are less than the maximum.

7. Aggregation is not applied even in cases where insurance periods completed in the State concerned coincide with insurance periods completed in another Member State.

8. It follows from the foregoing considerations that Article 28 (3) of Regulation No 3, to the extent to which it implies an aggregation of periods and a consecutive apportionment, resulting in the grant of several benefits paid by the different Member States, the total amount of which is however less than that of the benefit to which the worker is already entitled by virtue solely of the laws of one Member State, is incompatible with Article 51 and moreover devoid of any purpose, taking into account the entitlement of the worker concerned to the maximum benefit on the basis solely of the laws of the Member State concerned.

9. Article 13 (1) (b) and (5) of Regulation No 4, implementing Articles 27 and 28 of Regulation No 3, lays down certain rules for the calculation of the aggregation of periods — when this is necessary for the acquisition of the right or the enjoyment of the maximum benefit — particularly in the event of a period of compulsory payment of contributions in one Member State coinciding with a period of voluntary payment of contributions in another.

10. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.

THE COURT in answer to the question referred to it by the Sozialgericht, Freiburg, by order of 15 November 1973, hereby rules

1 Article 28 (3) of Regulation No 3, to the extent to which it implies an aggregation of periods and a consecutive apportionment, resulting in the grant of several benefits paid by different Member States, the total amount of which is however less than that of the benefit to which the worker is already entitled by virtue solely of the laws of one Member State, is incompatible with Article 51 and accordingly to that extent void.

2 The provisions of Article 13 (1) (b) and (5) of Regulation No 4 do not concern cases in which the right to a maximum pension exists without recourse to insurance periods in another Member State; the question relating to the validity of these provisions is therefore devoid of object.