JUDGMENT OF 26. 6. 1975 _ CASE 6/75 HORST v BUNDESKNAPPSCHAFT

In Case 6/75 Reference to the Court under Article 177 of the EEC Treaty by the Vth Senate of the Bundessozialgericht for a preliminary ruling in the action pending before that court between:

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

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted to the Court

(a) Observations of the Commission

The first question

The second question

(b) Observations of the respondent in the main action

Grounds off judgment

The first question

The second question

Costs

I —. Facts and procedure

(a). Are pension rights which have accrued by virtue of contributions paid by a German in Algeria before 19 January 1965 to the Caisse Autonome de Retraite et de Prévoyance des Mines d'Algérie also to be taken into account when determining a pension under Chapters 2 and 3 of Regulation No 3 of the Council of the EEC even when the risk insured against materializes and the claim of the insured person now resident in the Federal Republic of Germany is made only after this date?

(b). Does the principle of equality of treatment provided for by Article 8 of Regulation No 3 mean that the provisions of a national law of a Member State, which stipulate the taking into account and adjustment of accrued rights and social security benefits in respect of the insurance periods completed in a part of that State which has in the meantime become independent, also apply to all nationals of another Member State of the Community, who are resident in the territory of one of the other Member States?

II —. Written observations submitted to the Court

(a). Observations of the Commission

(i). The period ending on 30 June 1962, where the insurance periods completed in Algeria before this date, which are French insurance periods completed under French legislation, are necessary for the acquisition of a right to benefits valid in regard to the institution of another Member State, they must therefore automatically be taken into consideration, subject to the sole condition that the relevant contributions have been paid. The date of the materialization of the risk or of the making of the claim do not enter into consideration;

(ii). The period between 1 July 1962 and 18 January 1965 during which, in spite of its independence and departure from the Community, Algeria continued to be included in the geographical ambit of Regulation No 3, the provisions of which were fully applicable to nationals of Member States and to the institutions of the Community. Any more restrictive interpretation would adversely affect the principle of legal certainty, and one is therefore bound in view of the absence of any transitional provisions which stipulate any measures of derogation by the same conclusions as those in respect of the period before 30 June 1962;

(iii). The period from 19 January 1965 to 31 July 1965: as from 19 January 1965 Algeria ceased to be included in the ambit of Regulation No 3 but by virtue of the transitional rules laid down by Article 16 (2) of Regulation No 109/65, rights already accrued were not affected before 1 August 1965.

(b). Observations of the respondent in the main action

1. By an order dated 4 December 1974, which reached the Court Registry on 22 January 1975, the Bundessozialgericht requested the Court of Justice to give a preliminary ruling on two questions relating to the interpretation of Chapters 2 and 3 and Article 8 of Regulations No 3 of the Council, concerning social security for migrant workers.

2. These arguments were raised in the course of a case relating to a request for insurance periods completed by a German worker in Algeria to be taken into account in calculating his pension for total disability.

3. In the first question it is asked whether pension rights accrued as the result of contributions paid by a German in Algeria before 19 January 1965 to the Caisse Autonome de Retraite et de Prévoyance des Mines d'Algérie are also to be taken into consideration for calculating a pension under Chapters 2 and 3 of Regulation No 3 of the Council of the EEC, when the risk insured against materializes, and the claim of the insured person, who now resides in the Federal Republic of Germany, is made only after this date.

4. The provisions of the abovementioned Chapters 2 and 3 regulate the determination of the benefits which an insured person may claim.

5. In particular Article 27 provides that for the acquisition, maintenance or recovery of the right to benefit, where an insured person has been successively or alternatively subject to the legislation of two or more Member States, the insurance periods and assimilated periods completed under the legislation of each of the Member States shall be aggregated in so far as they do not overlap.

6. Although Algeria gained its independence on 1 July 1962, it only ceased to be regarded as coming within the scope of Regulation No 3 by virtue of Regulation No 109/65 which deleted the reference to Algeria in the annexes to Regulation Nos 3 and 4 with effect from 19 January 1965.

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

8. Therefore the concept accrued rights must be interpreted as meaning that as far as is necessary for the acquisition, maintenance or recovery of the right to benefit the insurance periods completed in Algeria before 19 January 1965 must be taken into consideration for determining the pensions referred to in Chapters 2 and 3 of Regulation No 3, even if the risk materializes and the claim for the pension is made after that date.

9. In the second question it is asked whether the principle of equality of treatment provided for by Article 8 of Regulation No 3 of the EEC means that the provisions of a national law of a Member State, which stipulate the taking into account and adjustment of accrued rights and social security benefits in respect of the insurance periods completed in a part of that State which has in the meantime become independent, also apply to all nationals of another Member State of the Community, who are resident in the territory of one of the other Member States.

10. In view of the answer given to the first question, the second question is superfluous.

11. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable and since these proceedings are, in so far as the parties to the main are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On these grounds, THE COURT in answer to the questions referred to it by the Bundessozialgericht by its order of 4 December 1974, hereby rules: