JUDGMENT OF 6. 7. 1978 — CASE 9/78 DIRECTEUR REGIONAL DE LA SÉCURITÉ SOCIALE DE NANCY v GILLARD

In Case 9/78, Reference to the Court under Article 177 of the EEC Treaty by the Cour d'Appel (Court of Appeal), Nancy, (Social Chamber), for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Observations submitted in pursuance of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — The Fund takes the view that, having regard to the viewpoint adopted by the Members of its Arbitration Committee in identical cases, namely that:

B — The Commission of the European Communities makes the following observations :

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Paulin Gillard, date of birth 6 September 1915, of Belgian nationality and resident in Belgium, was employed in France. From 28 May 1940 to 21 June 1945, that is, more than 60 months, he was a prisoner of war in Germany as a member of the Belgian armed forces.

2. The Cour d'Appel, Nancy, by a judgment of 24 January 1978, decided to stay the proceedings and, in pursuance of Article 177 of the EEC Treaty, put the following questions to the Court of Justice for a preliminary ruling:

3. A copy of the judgment referring the matter to the Court reached the Court Registry on 27 January 1978.

II —. Observations submitted in pursuance of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. The Fund takes the view that, having regard to the viewpoint adopted by the Members of its Arbitration Committee in identical cases, namely that:

(a). The provisions relating to the conditions for the grant of pensions are provisions of general application not taking the concept of nationality into account;

(b). Subsequent provisions cannot restrict the general scope of the earlier ones, a fortiori because Decree No 74-54 of 23 January 1974 provides that the persons concerned must prove the duration of their captivity or their military service in wartime in the French or Allied Forces;

B —. The Commission of the European Communities makes the following observations :

(a). either captivity or military service in the French or Allied Forces constitutes an objective condition for the grant of the advantage in question; or

(b). the captivity and the military service are assimilated to an insurance period under French legislation.

III —. Oral procedure

1. By judgment of 24 January 1978, received at the Court Registry on 27 January 1978, the Cour d'Appel, Nancy, has put to the Court of Justice in pursuance of Article 177 of the EEC Treaty, questions concerning the interpretation of Regulation No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2. These questions have arisen in the context of an action between the Directeur Régional de la Sécurité Sociale de Nancy (Regional Director of Social Security, Nancy), and a Belgian national receiving under French legislation an advance old-age pension at the normal rate of 25 % of his annual average wage, awarded at his request at the age of 60.

3. The insured person, who, as a member of the Belgian armed forces, was a prisoner of war in Germany for more than 60 months, claimed, on the basis of a document issued by the Belgian Ministry for Defence and in reliance on the principle of equality of treatment between national workers and workers who are nationals of another Member Sute, which is to be found in Regulation No 1408/71, that the provisions of Article L 382 (2) of the French Code de la Sécurité Sociale, as supplemented by Law No 73-1051 of 21 November 1973, were applicable to him.

4. According to those provisions, the old-age pension granted to workers, ex-servicemen or former prisoners of war is calculated at the rate normally applicable at 65, namely 50 % of the basic wage, when, at their request, their pension is awarded at an age between 61 and 60, for those whose captivity lasted for at least 54 months.

5. By virtue of the last subparagraph of Article 1 (1) and of paragraph (2) of the same article of Decree No 74-1199 of 31 December 1974, amending Decree No 74-54 of 23 January 1974, in implementation of the abovementioned law, the said benefit is only granted if the persons concerned prove the duration of their captivity and their military service in wartime in the French or Allied Forces by producing their service record or a certificate issued by the competent military authority or by the Ministry for Ex-Servicemen or the National Ex-Servicemen's Office.

6. The social security institution rejected that application, pointing out inter alia that the entitlement of former prisoners of war conferred by the French law constitutes one of the benefit schemes for victims of war or its consequences referred to by Article 4 (4) of Regulation No 1408/71 and therefore does not come within the field of application of that regulation.

7. Consequently, it stated, the insured person could not rely on the provisions of Regulation No 1408/71 to claim the benefit in question in this case in pursuance of the principle of non-discrimination laid down by those provisions.

8. By its first question the national court asks the Court of Justice whether Article 4 (4) of Regulation No 1408/71, pursuant to which that regulation is not to apply to benefit schemes for victims of war or its consequences, must be interpreted as meaning that benefits which are not strictly in the nature of compensation and are payable to those workers who were victims of the war only in so far as it detrimentally affected their acquisition of old-age pension rights or similar rights, such as the old-age benefits instituted by the French Law of 21 November 1973 — Article L 332 (2) of the Code de la Sécurité Sociale — are also excluded.

9. In order to reply to that question it is necessary to examine whether an old-age benefit such as that referred to by the French legislation may be considered as a social security benefit within the meaning of Article 4 (1) (c) of Regulation No 1408/71 and thus comes within the substantive field of application of that regulation as defined by the above-mentioned Article 4.

10. The first sentence of Article 1 of Law No 73-1051 states that these provisions supplement Article L 332 of the Code de la Sécurité Sociale.

11. However, the fact that a provision of this type is or is not inserted in national social security legislation is not by itself decisive in determining that the benefit referred to in the above provision is a social security benefit within the meaning of Regulation No 1408/71.

12. In fact, the distinction between benefits which are excluded from the field of application of Regulation No 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant.

13. It appears from the file that the benefit granted in pursuance of the national provisions in question has the essential purpose of providing for former prisoners of war who prove that they underwent a long period of captivity testimony of national gratitude for the hardships endured between 1939 and 1945 on behalf of France and its Allies and thus granting them, by an increase in the rate of old-age pension, a quid pro quo for the services rendered to those States.

14. Having regard to that purpose and those conditions of grant such a benefit does not exhibit the characteristics constituting a social security benefit within the meaning of Article 4 (1) of Regulation No 1408/71.

15. Article 4 of Regulation No 1408/71, in defining the material field of application of that provision, provides in paragraph (4) that the regulation is not to apply inter aliato benefit schemes for victims of war or its consequences.

16. For those reasons the reply to the first question must be that Article 4 (4) of Regulation No 1408/71 must be interpreted as meaning that the regulation does not apply to social benefits for former prisoners of war such as the benefit provided under the French Law of 21 November 1973, Article L 332 (2) of the Code de la Sécurité Sociale.

17. Asf a result, the other questions put by the national court lose their point.

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

19. 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 question referred to it by the Cour d'Appel, Nancy, by judgment of that court of 24 January 1978, hereby rules: