61975J0112

1 . REFERENCES FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ARTICLE 177 )

2 . SOCIAL SECURITY - MIGRANT WORKERS - OLD AGE ( PENSIONS ) INSURANCE - ALGERIA - INSURANCE PERIODS COMPLETED BEFORE 19 JANUARY 1965 - TAKING INTO CONSIDERATION BY FRENCH INSTITUTIONS - NATIONAL OF A MEMBER STATE OTHER THAN FRANCE - RECIPIENT

( EEC TREATY , ARTICLES 48 TO 51 . REGULATION NO 109/65 OF THE COUNCIL , AR- TICLE 16 ( 2 ))

1 . ALTHOUGH THE COURT , WHEN GIVING A RULING UNDER ARTICLE 177 , HAS NO JURISDICTION TO APPLY COMMUNITY RULES 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 .

2 . 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 , WHILST 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 .

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

1 - LANGUAGE OF THE CASE : FRENCH .

DIRECTEUR REGIONAL DE LA SECURITE SOCIALE DE NANCY ( REGIONAL DIRECTOR OF SOCIAL SECURITY , NANCY ),

AND

AUGUSTE HIRARDIN , RESIDING AT MONT SAINT MARTIN , FRANCE ,

CAISSE REGIONALE D ' ASSURANCE MALADIE DU NORD-EST , NANCY ,

ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JO NO 30 OF 16 . 12 . 1958 , P . 561 ),

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 .

COSTS

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 :

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 , WHILST 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 .