61967J0009

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1 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - SYSTEM PROVIDED FOR BY REGULATION NO 3 - RETENTION OF SEPARATE NATIONAL SYSTEMS AND OF SEPARATE CLAIMS

2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - IMPLEMENTATION OF COMMUNITY RULES - RESPECT FOR THE RIGHTS TO WHICH RECIPIENTS ARE ENTITLED UNDER NATIONAL LEGISLATION

3 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD-AGE AND DEATH ( PENSIONS ) INSURANCE - SIMULTANEOUS PAYMENT OF PENSIONS NOT OBLIGATORY

( REGULATION NO 3, ARTICLE 28 )

1 . CF . PARAGRAPH 3, SUMMARY, CASE 2/67 ( 1967 ) ECR 197 .

REGULATION N . 3 DID NOT PROVIDE FOR A COMMON SYSTEM OF SOCIAL SECURITY GIVING THE BENEFICIARY A SINGLE ENTITLEMENT BASED ON A SIMPLE APPORTIONMENT OF SUCH BENEFITS BETWEEN NATIONAL INSTITUTIONS, BUT ALLOWED SEPARATE SYSTEMS TO CONTINUE, CREATING SEPARATE INSTITUTIONS AGAINST WHICH THE BENEFICIARY HAS DIRECT RIGHTS EITHER UNDER NATIONAL LAW ALONE OR NATIONAL LAW SUPPLEMENTED, IF NECESSARY, BY COMMUNITY LAW .

*/ 667J0002 /*.

2 . SINCE THE SYSTEM OF SOCIAL SECURITY FOR MIGRANT WORKERS AIMS AT CONFERRING ON MIGRANT WORKERS THE ADVANTAGES CORRESPONDING TO THEIR VARIOUS PERIODS OF WORK, IT MAY NOT, IN THE ABSENCE OF AN EXPRESS EXCEPTION IN CONFORMITY WITH THE OBJECTIVES OF THE TREATY, BE APPLIED SO AS TO DEPRIVE THE PERSONS CONCERNED OF THE BENEFIT OF PART OF THE LEGISLATION OF A MEMBER STATE .

CF . PARAGRAPH 1, SUMMARY, CASE 46/66, ( 1966 ) ECR 616 .

3 . THERE IS NO GENERAL OBLIGATION IN COMMUNITY LAW REQUIRING BENEFICIARIES TO CLAIM THE SIMULTANEOUS PAYMENT OF THE VARIOUS PENSIONS TO WHICH THEY ARE ENTITLED .

IN CASE 9/67

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D' APPEL, PARIS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

KURT COLDITZ

AND

CAISSE D' ASSURANCE VIEILLESSE DES TRAVAILLEURS SALARIES DE PARIS,

ON THE INTERPRETATION OF ARTICLE 28 OF REGULATION NO 3 AND ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4, ESPECIALLY AS TO WHETHER THESE PROVISIONS MUST BE INTERPRETED TO MEAN THAT, APART FROM THE SPECIAL CASES PROVIDED FOR BY ARTICLE 28(1)(E ) AND ( F ) OF REGULATION NO 3, A CLAIM FOR A PENSION MUST NECESSARILY BE MET SIMULTANEOUSLY BY EACH OF THE NATIONAL INSTITUTIONS SO AS TO TAKE EFFECT FROM THE DATE OF THE FIRST ACTUAL CLAIM ADDRESSED TO ONE OF THOSE INSTITUTIONS,

P.230

BY A JUDGMENT DATED 28 JANUARY 1967 WHICH ARRIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 6 MARCH 1967, THE COUR D' APPEL, PARIS, ( 18TH CHAMBER ) REFERRED UNDER ARTICLE 177 OF THE EEC TREATY ' THE FOLLOWING PRELIMINARY QUESTION CONCERNING THE DATE FROM WHICH THE VARIOUS NATIONAL INSTITUTIONS MUST PAY THE PENSIONS WHICH ARE DUE FROM THEM ' AND ASKED THE COURT TO : ' RULE WHETHER THE PROVISIONS OF ARTICLE 28 OF REGULATION NO 3 AND OF ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4 MUST BE INTERPRETED TO MEAN THAT APART FROM THE SPECIAL CASES PROVIDED FOR BY ARTICLE 28(1)(E ) AND ( F ) A CLAIM FOR A PENSION MUST NECESSARILY BE MET SIMULTANEOUSLY BY EACH OF THE NATIONAL INSTITUTIONS SO AS TO TAKE EFFECT FROM THE DATE OF THE FIRST ACTUAL CLAIM ADDRESSED TO ONE OF THOSE INSTITUTIONS '.

THE SAID QUESTION CONCERNS THE LEGAL POSITION OF AN INSURED PERSON WHO CONTINUES TO WORK AND TO PAY CONTRIBUTIONS WITH A VIEW TO ACQUIRING RIGHTS TO A HIGHER PENSION AND AGAINST WHICH THE NATIONAL INSTITUTION RESPONSIBLE FOR PAYMENT OF THE SAID PENSION INVOKES ON THE BASIS OF ARTICLES 27 AND 28 OF REGULATION NO 3 THE RIGHT ON ITS OWN INITIATIVE TO MAKE A PAYMENT OF THE PENSION ON THE SAME DATE WHEN THE INSURED PERSON OBTAINS THE PAYMENT OF ANOTHER PENSION IN ANOTHER MEMBER STATE .

P.234

SINCE THE SOLUTION TO THIS QUESTION IS NOT EXPRESSLY GOVERNED BY THE REGULATIONS OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, IT CAN ONLY EMERGE FROM THE INTERPRETATION OF THOSE REGULATIONS IN THE LIGHT OF THE OBJECTIVES OF THE PROVISIONS OF THE TREATY ( ARTICLES 48 TO 51 ) ON THE BASIS OF WHICH THOSE REGULATIONS WERE ADOPTED .

THE REGULATIONS HAVE NOT SET UP A COMMON SYSTEM OF SOCIAL SECURITY GRANTING THE RECIPIENT OF A PENSION A SINGLE ENTITLEMENT IMPLYING THE NEED FOR THE SIMULTANEOUS SETTLEMENT OF THE VARIOUS PENSION RIGHTS IN ALL THE MEMBER STATES; THEY HAVE ALLOWED SEPARATE SYSTEMS TO CONTINUE CREATING SEPARATE CLAIMS AGAINST SEPARATE INSTITUTIONS AGAINST WHICH THE RECIPIENT HAS DIRECT RIGHTS EITHER UNDER NATIONAL LAW ALONE OR NATIONAL LAW SUPPLEMENTED, IF NECESSARY, BY COMMUNITY LAW .

SINCE, IN ACCORDANCE WITH THE OBJECTIVES OF ARTICLE 51 OF THE TREATY, THIS SYSTEM AIMS AT CONFERRING ON MIGRANT WORKERS THE ADVANTAGES CORRESPONDING TO THEIR VARIOUS PERIODS OF WORK, IT MAY NOT, IN THE ABSENCE OF AN EXPRESS EXCEPTION IN CONFORMITY WITH THE OBJECTIVES OF THE TREATY, BE APPLIED SO AS TO DEPRIVE THEM OF THE BENEFIT OF PART OF THE LEGISLATION OF A MEMBER STATE .

THERE IS NO PROVISION WHICH IMPOSES AN OBLIGATION TO MAKE A SIMULTANEOUS PAYMENT OF THE PENSIONS IN QUESTION . SUCH AN OBLIGATION COULD EITHER CAUSE THE INSURED PERSON TO HAVE TO RENOUNCE HIS RIGHT TO A PENSION TO WHICH HE WAS ENTITLED IN ONE STATE UNTIL ANOTHER PENSION WAS PAID IN ANOTHER STATE OR PREVENT HIM FROM EXERCISING THE RIGHT, CONFERRED BY THE LEGISLATION OF THE LATTER STATE, OF POSTPONING THIS PAYMENT .

IT IS THEREFORE IMPOSSIBLE TO DERIVE AN ARGUMENT FROM COMMUNITY LAW FOR OBLIGING THE MIGRANT WORKER TO ACCEPT SIMULTANEOUS PAYMENT OF THE PENSIONS TO WHICH ENTITLEMENT IS CONFERRED BY THE LEGISLATIVE SYSTEMS OF VARIOUS MEMBER STATES .

ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4, WHICH ARE APPLICABLE TO CASES OF SIMULTANEOUS PAYMENT OF SEVERAL PENSIONS, GIVE NO INDICATION OF THE CIRCUMSTANCES IN WHICH A SIMULTANEOUS PAYMENT MUST BE MADE . THEY ARE IN FACT PURELY PROCEDURAL PROVISIONS WHICH LAY DOWN HOW SIMULTANEOUS PAYMENTS ARE TO BE EFFECTED AND NOT THE CONTEXT IN WHICH THE SAID PROCEDURE MUST BE APPLIED . THIS IS A SPECIAL PROCEDURE AND ONE WHICH RELATES TO SUCH CASES AS MAY ARISE UNDER ARTICLE 28(1)(E ) OF REGULATION NO 3 .

THE EXCEPTIONAL NATURE OF THOSE SITUATIONS CONFIRMS THE FACT THAT SIMULTANEOUS PAYMENT IS NOT THE GENERAL RULE UNDER REGULATION NO 3 .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . 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 COUR D' APPEL, PARIS, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D' APPEL, PARIS, ( 18TH CHAMBER ) BY A DECISION OF THAT COURT OF 28 JANUARY 1967, HEREBY RULES :

ARTICLE 28 OF REGULATION NO 3 TOGETHER WITH ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4 DOES NOT IMPLY THE SIMULTANEOUS PAYMENT, ON THE BASIS OF THE SAME REFERENCE DATE, OF A PENSION PAYABLE IN ONE MEMBER STATE WITHOUT RECOURSE TO ARTICLE 27 AND OF ANOTHER PENSION NOT YET PAYABLE IN ANOTHER MEMBER STATE;

THE DECISION ON COSTS IN THE PRESENT PROCEEDINGS IS A MATTER FOR THE COUR D' APPEL, PARIS .