61975J0006

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SOCIAL SECURITY - MIGRANT WORKERS - ALGERIA - PENSIONS - CALCULATION - INSURANCE PERIODS COMPLETED BEFORE 19 JANUARY 1965 - TAKING INTO CONSIDERATION

( REGULATION NO 109/65 OF THE COUNCIL, ARTICLE 16 ( 2 ))

IN SO FAR AS IS NECESSARY FOR THE ACQUISITION, THE MAINTENANCE OR THE RECOVERY OF THE RIGHT TO BENEFITS, INSURANCE PERIODS COMPLETED IN ALGERIA BEFORE 19 JANUARY 1965 MUST BE TAKEN INTO CONSIDERATION IN CALCULATING THE PENSIONS REFERRED TO IN CHAPTERS 2 AND 3 OF REGULATION NO 3 EVEN IF THE RISK MATERIALIZES AND THE CLAIM FOR A PENSION IS MADE AFTER THAT DATE .

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 :

ULRICH HORST, HANNOVER-BUCHHOLZ

AND

BUNDESKNAPPSCHAFT, BOCHUM

ON THE INTERPRETATION OF CHAPTERS 2 AND 3, AND ARTICLE 8 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS

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 .

THE FIRST QUESTION

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 PREVOYANCE DES MINES D'ALGERIE 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 .

THE SECOND QUESTION

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 :

IN SO FAR AS IS NECESSARY FOR THE ACQUISITION, THE MAINTENANCE OF THE RECOVERY OF THE RIGHT TO BENEFITS, INSURANCE PERIODS COMPLETED IN ALGERIA BEFORE 19 JANUARY 1965 MUST BE TAKEN INTO CONSIDERATION IN CALCULATING THE PENSIONS REFERRED TO IN CHAPTERS 2 AND 3 OF REGULATION NO 3 EVEN IF THE RISK MATERIALIZES AND THE CLAIM FOR A PENSION IS MADE AFTER THAT DATE .