JUDGMENT OF 8. 4. 1976 — CASE 112/75 SÉCURITÉ SOCIALE NANCY v HIRARDIN

In Case 112/75, Reference to the Court under Article 177 of the EEC Treaty by the Cour d'appel, Nancy, for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. O'Keeffe and H. Kutscher, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and F. Capotorti, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted to the Court

Law

Costs

I —. Facts and procedure

1. Mr Hirardin, a Belgian national residing in France, was employed in France from 1 July 1930 to 30 September 1939, from 1 January to May 1940 and from 1954 to 1956. He was subsequently employed in Algeria from 16 January 1957 to 31 March 1961 and then again in France from 1961 until the age of retirement.

2. In September 1972, on the occasion of the award of his old-age pension, Mr Hirardin applied to the Caisse régionale d'assurance maladie du Nord-Est (hereinafter referred to as the Caisse) to have his period as an employed person in Algeria taken into account in the calculation of his pension. He based his request on the provisions of French Law No 64-1330 of 26 December 1964, which provides that French nationals repatriated from Algeria may have their periods of employment completed in Algeria before 1 July 1962 taken into account unconditionally.

3. The Regional Director appealed against this decision to the Cour d'appel, Nancy. The appeal is based on the following arguments: the law of 26 December 1964 is a law of national unity and can only be extended to aliens who come within one of the categories of persons referred to by Article 2 of the Decree of 4 September 1962. The Regional Director maintains that Mr Hirardin does not fulfil these conditions and cannot claim the application of Regulation No 3 of the Council of the EEC concerning social security for migrant workers on the ground that, as that regulation has not applied to Algeria since 19 January 1965, its provisions could not be applied to periods completed in Algeria before that date, where award of the benefits takes place afterwards.

4. The Cour d'appel, Nancy, considered that the action before it raised a question of interpretation of Regulation No 3 and, on 13 November 1975, decided to request the Court of Justice to give a preliminary ruling on two questions concerning the interpretation of Articles 2, 3, 8 and 12 of Regulation No 3:

5. After finding in its judgment referring the case to the Court of Justice that Mr Hirardin has not brought sufficient evidence to be able to benefit under Article 2 of the decree of 4 September 1962, the Cour d'appel declared:

6. The judgment of the Cour d'appel, Nancy, was received at the Court Registry on 25 November 1975.

II —. Written observations submitted to the Court

1. Mr Hirardin recalls that under Article 27 of Regulation No 3 For the acquisition, maintenance or recovery of the right to benefit, where an insured person has been successively or alternately subject to the legislation of two ore 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.

2. The Regional Director of Social Security, Nancy, observes that the purpose of the two questions put by the Cour d'appel, Nancy, is in fact to discover whether the Law of 26 December 1964 must be applied for the benefit of all aliens who, like Community nationals, may seek equal treatment with French nationals on the basis of the international agreements signed by France.

3. After setting out the facts involved in the action, the Caisse Régionale d'Assurance Maladie du Nord-Est concludes by leaving the case to the wisdom of the Court.

4. The Commission recalls that in its judgments in Cases 110/73 (Fiege) and 6/75 (Horst) the Court has already acknowledged the liability of French social security organizations in relation to insurance periods completed in Algeria before 19 January 1965 by migrant workers within the meaning of Regulation No 3, even if the risk materializes, and the claim for pension is made, after that date. In so doing, the Court based its ruling on Article 16 (2) of Regulation No 109/65.

1. By judgment of 13 November 1975, received at the Registry on 25 November 1975, the Cour d'appel, Nancy, has requested the Court of Justice to give a preliminary ruling on two questions relating to the interpretation of certain provisions of Regulation No 3 of the Council concerning social security for migrant workers.

2. These questions have arisen in the context of an action brought by a worker of Belgian nationality residing in France who applied for a period of employment in Algeria between 1957 and 1961 to be taken into account in calculating his old-age pension.

3. The first question asks whether the discrimination provided for between French nationals and aliens by the Decree of 4 September 1962 may be applied as against a Community citizen where its effect must be to deprive him of an old-age pension awarded to French nationals.

4. The second question asks whether, therefore, in order to avail himself of the Law of 26 December 1964 which takes into account for the purposes of old-age benefits periods of employment completed in Algeria before 1 July 1962, a Belgian national must demonstrate that he fulfils the conditions imposed on aliens by the above-mentioned Decree of 4 September 1962?

5. Article 1 of the French Law of 26 December 1964 provides: French nationals who have formerly carried on in Algeria a professional or trade activity, who reside in France and who have acquired, are acquiring or who may acquire rights to old-age benefits payable by Algerian institutions shall be entitled to have account taken of periods of activity as employed or self-employed persons completed in Algeria before 1 July 1962 during which they were affiliated to such institutions.

6. The Decree of 2 September 1965 extended the area of application of the provisions of that Law to aliens in receipt of one or more benefits awarded within the context of the Decree of 4 September 1962 laying down rules of public administration for the application to certain aliens of the Law of 26 December 1961 on the reception and resettlement of French nationals from overseas.

7. The principal result of those provisions is that, in order to be able to claim that periods of employment spent in Algeria be taken into account, aliens must have shown devotion to France or have rendered exceptional services to that country.

8. Although the Court, when giving a ruling under Article 177, has no jurisdiction to apply the Community rule to a specific case or, consequently, to pronounce upon a provision of national law, it may however provide the national court with the factors of interpretation depending on Community law which might be useful to it in evaluating the effects of such provision.

9. In view of the prohibition, contained in Articles 48 to 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.

10. However, the Regional Director of Social Security, Nancy, the appellant in the main action, has maintained that foreign workers cannot rely on the principle of equal treatment in order to benefit under the Law of 26 December 1964, since they are not in the same legal situation as the French workers referred to by the Law.

11. He states that the benefit of the law is conferred subject to the double condition that after the independence of Algeria the individuals concerned have preserved on French soil the rights which they derived under the Algerian system and that these rights have been acknowledged and guaranteed by France.

12. In the case of French nationals, this condition is stated to be satisfied by the Franco-Algerian agreement of 19 January 1965, which substituted rights under the French social security scheme for those held by the individuals concerned under the Algerian system, and exonerated the Algerian institutions from their corresponding obligations.

13. It is alleged that aliens are, however, in a different legal situation, since their Algerian rights have not been transformed into French rights and the French institutions cannot rely on subrogation to those rights as against the Algerian institutions.

14. Such reasoning cannot be decisive in determining the reply to the questions referred to the Court in the present case.

15. In fact, the alleged differences are not the result of Community law but rather of the French law and of the bilateral Franco-Algerian agreement which cannot derogate from the provisions of Community law prohibiting all discrimination between workers of the Member States.

16. Furthermore, in its original version Annex A to Regulation No 3 provided that, for the purposes of applying the regulation, Algeria formed part of French territory.

17. . Although Algeria became independent on 1 July 1962, it was only with effect from 19 January 1965 that the reference to Algeria was eliminated from the amended version of Annex A brought into force by Regulation No 109/65 of the Council of 30 June 1965 (OJ of 9. 7. 1965, p. 2124).

18. Article 16 (2) of that regulation expressly provided that that reference was eliminated without prejudice to rights acquired.

19. It must therefore be concluded that the principle of the equal treatment of workers laid down by Articles 48 to 51 of the EEC Treaty implies that provisions of national law cannot be applied as against a worker who, while residing in France, is a national of another Member State, where their effect is to deprive such a worker of a benefit awarded to French workers as regards the taking into account, in calculating the old-age pension, of insurance periods completed in Algeria.

20. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

21. 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, the decision as to costs is a matter for that court.

On those grounds, THE COURT, in answer to the questions referred to it by the Cour d'appel, Nancy, by judgment of 13 November 1975, hereby rules: