61971J0026

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE PENSIONS - NATIONAL LEGISLATION - DIFFERENT KINDS OF BENEFIT - ENTITLEMENT TO BENEFIT OF A MORE ADVANTAGEOUS KIND - AGGREGATION OF INSURANCE PERIODS COMPLETED IN SEVERAL MEMBER STATES

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 27 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE PENSIONS - AGGREGATION OF INSURANCE PERIODS COMPLETED IN SEVERAL MEMBER STATES - PRO RATA CALCULATION - ACCOUNT TO BE TAKEN OF PERIODS IN FACT COMPLETED

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 28 )

1 . WHERE THE LEGISLATION OF A MEMBER STATE PROVIDES FOR OLD-AGE BENEFITS OF DIFFERENT KINDS, DEPENDING ON THE LENGTH OF TIME FOR WHICH THE WORKER CONCERNED HAS BEEN AFFILIATED, INSURANCE PERIODS COMPLETED SUCCESSIVELY OR ALTERNATELY IN TWO OR MORE MEMBER STATES MUST BE AGGREGATED WHEREVER THE WORKER HAS NOT COMPLETED THE NUMBER OF PERIODS NECESSARY UNDER THE LEGISLATION OF THE FIRST STATE TO ENTITLE HIM TO BENEFIT OF THE MORE ADVANTAGEOUS KIND .

2 . WHERE AGGREGATION IS NECESSARY, FOR THE PURPOSE OF CALCULATING THE FRACTION OF THE BENEFIT TO BE BORNE BY THE RELEVANT INSTITUTION ACCOUNT MUST BE TAKEN OF THE PERIODS IN FACT COMPLETED BY THE WORKER CONCERNED, AND NOT MERELY THOSE REPRESENTING THE TOTAL REQUIRED IN THE STATE IN QUESTION FOR ENTITLEMENT TO FULL BENEFIT .

IN CASE 26/71

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN SITTING IN STRASBOURG, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

HEINRICH GROSS, RESIDING IN MUELLHEIM ( FEDERAL REPUBLIC OF GERMANY ),

AND

CAISSE REGIONALE D' ASSURANCE VIEILLESSE DES TRAVAILLEURS SALARIES DE STRASBOURG,

ON THE INTERPRETATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

1 BY DECISION OF 28 APRIL 1971, RECEIVED AT THE COURT ON 8 JUNE 1971, THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE DU BAS-RHIN SUBMITTED, UNDER ARTICLE 177 OF THE EEC TREATY, A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND OF ARTICLE 51 OF THE EEC TREATY, IN CONNEXION WITH THE METHOD OF DETERMINING OLD-AGE PENSIONS .

2 IT APPEARS FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION HAS BEEN AFFILIATED SUCCESSIVELY TO GERMAN AND FRENCH SOCIAL INSURANCE SCHEMES, HAVING COMPLETED 195 QUARTERLY PERIODS IN THIS MANNER, 145 IN GERMANY AND 50 IN FRANCE .

3 WHEREAS ON THE BASIS OF PERIODS COMPLETED IN FRANCE ALONE HE WOULD ONLY HAVE BEEN ABLE TO CLAIM AN " OLD-AGE ANNUITY " UNDER ARTICLE L 336 OF THE FRENCH CODE DE LA SECURITE SOCIALE, THE CAISSE REGIONALE D' ASSURANCE VIEILLESSE DE TRAVAILLEURS SALARIES OF STRASBOURG GRANTED HIM THE BENEFIT OF AN " OLD-AGE PENSION " CALCULATED UNDER ARTICLE L 331 OF THE SAME CODE, BY APPLYING THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 RELATING TO THE AGGREGATION AND PRO RATA CALCULATION OF INSURANCE PERIODS .

4 THE APPLICANT SUBMITTED A COMPLAINT AGAINST THIS DECISION TO THE COMMISSION DE PROCEDURE GRACIEUSE, DISPUTING THE APPLICATION OF REGULATION NO 3 AND REQUESTING THAT HIS RIGHTS BE QUANTIFIED BY REFERENCE SOLELY TO PAYMENTS MADE BY HIM IN FRANCE .

5 THIS COMPLAINT WAS REJECTED, WHEREUPON HE BROUGHT AN ACTION BEFORE THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE IN WHICH HE CONFINED HIS OBJECTION TO THE METHODS OF CALCULATION APPLIED BY THE CAISSE REGIONALE FOR THE PRO RATA CALCULATION OF HIS PENSION UNDER ARTICLE 28 OF REGULATION NO 3 .

6 IT APPEARS FROM THESE FACTS THAT THE QUESTION OF INTERPRETATION RAISED BY THE COMMISSION DE PREMIERE INSTANCE CONCERNS THE APPLICABILITY OF ARTICLES 27 AND 28 OF REGULATION NO 3 TO THE CASE OF A WORKER WHO, WHILST ENTITLED TO A SOCIAL SECURITY BENEFIT UNDER THE LEGISLATION OF THE STATE CONCERNED, DOES NOT HOWEVER FULFIL THE CONDITIONS REQUIRED BY THAT LEGISLATION FOR ENTITLEMENT TO A BENEFIT OF A MORE ADVANTAGEOUS KIND .

7 FURTHERMORE, IT IS NECESSARY IN ORDER TO ANSWER THE QUESTION REFERRED TO CONSIDER WHICH METHODS OF CALCULATION ARE APPLICABLE UNDER ARTICLE 28 OF REGULATION NO 3 WHERE THE TOTAL OF INSURANCE PERIODS COMPLETED BY A WORKER IN THE COMMUNITY AS A WHOLE EXCEEDS THE TOTAL OF THE PERIODS TAKEN INTO ACCOUNT BY NATIONAL LEGISLATION FOR THE GRANT OF FULL BENEFIT .

8 ARTICLE 27 OF REGULATION NO 3 PROVIDES, IN ACCORDANCE WITH ARTICLE 51 OF THE EEC TREATY, THAT WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES THE INSURANCE PERIODS SHALL BE AGGREGATED FOR THE PURPOSE OF THE ACQUISITION OF THE RIGHT TO BENEFITS .

9 WHERE THE LEGISLATION OF A MEMBER STATE PROVIDES FOR OLD-AGE BENEFITS OF DIFFERENT KINDS, DEPENDING ON THE PERIOD OF AFFILIATION, THE PRINCIPLE OF AGGREGATION LAID DOWN IN ARTICLE 27 IS APPLICABLE WHEREVER A WORKER HAS NOT COMPLETED, UNDER THE RELEVANT LEGISLATION, THE PERIODS NECESSARY TO ENTITLE HIM TO BENEFIT OF THE MORE ADVANTAGEOUS KIND .

10 CONSEQUENTLY, WHERE THERE IS AGGREGATION, THE CALCULATION OF THE BENEFIT MUST BE MADE IN ACCORDANCE WITH THE RULES CONTAINED IN ARTICLE 28 REGULATION NO 3 .

11 UNDER ARTICLE 28 ( 1 ) ( B ) THE INSTITUTION SHALL DETERMINE THE AMOUNT DUE " PRO RATA WITH THE LENGTH OF THE PERIODS COMPLETED " UNDER ITS OWN LEGISLATION " AS COMPARED WITH THE TOTAL LENGTH OF THE PERIODS COMPLETED UNDER THE LEGISLATION OF ALL THE MEMBER STATES CONCERNED ".

12 IT FOLLOWS FROM THIS THAT, FOR THE PURPOSE OF CALCULATING THE FRACTION OF THE BENEFIT TO BE BORNE BY THE RELEVANT INSTITUTION, ACCOUNT MUST BE TAKEN OF ALL PERIODS IN FACT " COMPLETED " AND NOT MERELY THOSE REPRESENTING THE TOTAL REQUIRED FOR THE GRANT OF FULL BENEFIT .

13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

14 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 COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN BY DECISION OF 28 APRIL 1971, HEREBY RULES :

1 . WHERE THE LEGISLATION OF A MEMBER STATE PROVIDES FOR OLD-AGE BENEFITS OF DIFFERENT KINDS, DEPENDING ON THE LENGTH OF TIME FOR WHICH THE WORKER CONCERNED HAS BEEN AFFILIATED, INSURANCE PERIODS COMPLETED SUCCESSIVELY OR ALTERNATELY UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES MUST BE AGGREGATED WHEREVER THE WORKER HAS NOT COMPLETED THE NUMBER OF PERIODS NECESSARY UNDER THE LEGISLATION OF THE FIRST STATE TO ENTITLE HIM TO BENEFIT OF THE MORE ADVANTAGEOUS KIND .

2 . WHERE AGGREGATION IS NECESSARY, FOR THE PURPOSE OF CALCULATING THE FRACTION OF THE BENEFIT TO BE BORNE BY THE RELEVANT INSTITUTION ACCOUNT MUST BE TAKEN OF THE PERIODS IN FACT COMPLETED BY THE WORKER CONCERNED, AND NOT MERELY THOSE REPRESENTING THE TOTAL REQUIRED IN THE STATE IN QUESTION FOR ENTITLEMENT TO FULL BENEFIT .