JUDGMENT OF 12. 10. 1978 — CASE 10/78 BELBOUAB v BUNDESKNAPPSCHAFT

In Case 10/78 REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Sozialgericht Gelsenkirchen (Third Chamber) for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: H. Kutscher, President, J. Mertens de Wilman and Lord Mackenzie Stuart (Presidents of Chambers), P. Pescatore, M. Sørensen, G. Bosco and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

III — Oral procedure

Decision

Costs

I —. Facts and procedure

(1). Suffers a reduction in his capacity for work as a miner and has completed the qualifying period in accordance with Article 49 (1); or

(2). Having reached the age of 50 years, no longer has a post whose economic value is equivalent to the previous post as a mineworker and has completed the qualifying period in accordance with Article 49 (2).

1. Does the legal principle that legal rights under public law acquired by a person's own efforts may not be encroached upon by sovereign measures without compensation, which finds expression in German law in Article 14 of the Grundgesetz (Basic Law), apply in the law of the European Community?

2. Do Regulations Nos 1408/71 and 574/72 violate that legal principle in so far as they contain no rule corresponding to Article 16 (2) of Regulation No 109/65?

3. Or does Article 16 (2) of Regulation No 109/65 continue to apply, directly or by analogy, so that Articles 2 (1), 38 (1) and 94 (2) of Regulation No 1408/71 are to be interpreted as meaning that the insurance periods completed in France by an employed person before 19 January 1965 are to be taken into consideration if during such periods he was a French citizen and as such enjoyed the advantages conferred by Article 1 (a) in conjunction with Annex A to Regulation No 3 on social security for migrant workers, although at the time of applying for a German pension he possesses Algerian nationality?

II —. Summary of the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

1. The German court takes as its premise that the personal criterion of nationality should under Article 2 (1) of Regulation No 1408/71 be satisfied at the present time or at the time of the examination of the application for a pension. It is necessary first to ascertain whether this premise is correa because if not the problem may be resolved by applying positive Community law alone. For that reason the order of the questions raised should be reversed.

2. As regards the time to be taken into consideration for determining nationality under Article 2 (1) of Regulation No 1408/71 it should be recalled that the plaintiff was a French national until 30 June 1962 and subsequently an Algerian national from 1 July 1962 by which time he had already worked more than a year in the German mines. Depending on whether the possession of the nationality of a Member Sute is taken into consideration at the time of the acquisition of the right to benefits or at the time when the periods are completed the plaintiff in the main proceedings is to be regarded as either Algerian or French. As the provisions in question (Article 4 (1) of Regulation No 3 and Article 2 (1) of Regulation No 1408/71 successively) are unclear the Commission inclines to the view that the time of the completion of insurance periods should be taken into account as otherwise a change of nationality would have retroactive effects which would be incompatible with the freedom of movement for workers (in this respect it may be noted that conversely this view might lead to a non-migrant within the meaning of Articles 48 to 51 of the Treaty being able to benefit even retroactively from the status of a migrant worker if he became a national of a Member State). It is therefore preferable to have regard to the time of the completion of the periods particularly as a textual argument derived from the wording of Article 2 (1) of Regulation No 1408/71 which refers to workers who are nationals of the Member States.

3. As to the possibility that Article 16 (2) of Regulation No 109/65 may still be applicable the Sozialgericht omitted to lake into account the fan that the plaintiff is one of the persons covered by Regulation No 3 by virtue of his being a French national and not a national of the French Union. The case-law of the Court of Justice on accrued rights within the meaning of Article 16 (2) has, up to now, had only a territorial scope inasmuch as it has been held that Algeria does fall within the field covered by Regulation No 3 until 19 January 1965 and not only until 30 June 1962; the question of nationals' and thus of the persons covered by the regulations has not been resolved (see the above-mentioned Horst judgment). In fact Regulation No 3 was applicable to the territory of Algeria but not to workers of Algerian origin who, until 30 June 1962, were French nationals. In the light of a comparison of Article 16 (2) (a) and Article 5 of Regulation No 109/65 on the one hand and Annex A to Regulation No 3 on the other such persons cannot be held to be persons covered by Regulation No 3. It cannot be envisaged that rights acquired by Algerians should be accorded protection by virtue of a kind of fictitious inclusion of Algeria in the territory of the Community until 19 January 1965; on the other hand Article 16 (2) of Regulation No 109/65 has in the words of the Sozialgericht lost its point of reference since the repeal of Regulation No 3 and therefore the question whether Algeria falls within the territorial scope of Regulation No 1408/71 arises in the same terms as at the time when Regulation No 3 was still in force as both regulations take account of insurance periods completed under the legislation of the Member States before their entry into force (see Article 94 (2) of Regulation No 1408/71). The fact that Regulation No 1408/71 is silent as to the territories which it coven does not allow its scope to be restricted more narrowly than the limits set by Regulations No 3 and No 109/65 and by the case-law of the Court of Justice.

4. Interpreted in this way Article 94 of Regulation No 1408/71 guarantees that all periods completed before the loss of French nationality shall be taken into account and it renden nugatory the question of the protection of accrued rights for periods completed in France. position is different for periods completed after the loss of French nationality but that consequence is not a matter of Community law.

1. Regulation No 1408/71 guarantees, by the application of Article 94 (2), that all insurance periods and periods of employment or residence completed in the territory of the Member States before its entry into force shall be takten into consideration. As regards the condition contained in Article 2 (1) of the regulation with regard to nationality of a Member Sute, the nationality held by the worker when he completed the insurance periods or the periods of employment or residence is decisive.

2. Regulation No 109/65 relates to the inclusion of Algeria in the territories covered by Regulations Nos 3 and 4. It contains no provision relating to the inclusion of workers of Algerian origin in the persons covered by the two regulations.

III —. Oral procedure

1. By an order of 7 December 1977 which was received at the Court Registry on 1 February 1978 the Sozialgericht Gelsenkirchen referred to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty questions relating to the interpretation of Regulation No 1408/71 of the Council of 14 June 1971 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) and Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal, English Special Edition, 1972 (I), p. 160) with regard to the concept of legal rights acquired by a worker who was a Community migrant worker for a part of his working life but who subsequently became a foreign worker following a change of nationality consequent upon the setting up of a new State.

2. The questions were raised in the context of a dispute between the Bundesknappschaft, Saarbrücken, and a mineworker born in Algeria in 1924, a French national by birth, who worked in France for 155 months and subsequently, as from 26 May 1961, in Germany but who lost French nationality on 1 July 1962 when Algeria became independent.

3. An application for the annulment of that administrative decision was brought before the Sozialgericht Gelsenkirchen which takes the view that the plaintiff, as an Algerian national, is not a person covered by Regulation No 1408/71 since under Article 2 (1) of that regulation it is applicable only to workers who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member Sutes.

4. The basic reasoning of the national court rests on the premises that the personal criterion of the nationality of the plaintiff which is to be taken into account pursuant to Article 2 (1) of Regulation No 1408/71 is that existing at the time of the application for a pension and that neither Regulation No 1408/71 nor Regulation No 574/72 contains any provision analogous to Article 16 (2) of Regulation No 109/65 protecting accrued rights.

5. The establishment of the greatest possible freedom of movement for migrant workers, which is one of the foundations of the Community, is the primary aim of Article 51 of the Treaty.

6. The persons covered by Regulation No 1408/71 are defined in Article 2 of the regulation as follows: This regulation shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ….

7. In order to satisfy the principle of legal certainty, one of the requirements of which is that any factual situation should normally, in the absence of any contrary provision, be examined in the light of the legal rules existing at the time when that situation obtained, the second condition must be interpreted as meaning that the status of being a national of one of the Member States refers to the time of the employment, of the payment of the contributions relating to the insurance periods and of the acquisition of the corresponding rights.

8. This interpretation is supported by Article 94 (2) of Regulation No 1408/71 which provides that All insurance periods, as also, where applicable, all periods of employment or residence completed under the legislation of a Member Sute before the date of entry into force of this regulation …, shall be taken into consideration for the purpose of determining entitlement to benefits in accordance with the provisions of this regulation.

9. In reaching this solution, which provides the national court with all the factors for the interpretation of Community law which are necessary to resolve the problem with which it is confronted, it is not necessary to have recourse to the interpretation of Article 16 (2) of Regulation No 109/65 of 30 June 1965 amending and supplementing Regulations Nos 3 and 4 on social security for migrant workers.

10. The answer given to the third question makes it unnecessary to reply to the first two questions as, interpreted in that way, the provision in question contains no factor of such a kind as to prejudice the fundamental human rights included in the general principles of Community law which the Court must protect.

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

On those grounds, THE COURT, in answer to the questions referred to it by the Sozialgericht Gelsenkirchen by order of 7 December 1977, hereby rules: