61967J0001

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1 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - BENEFITS - AGGREGATION AND PROPORTIONAL CALCULATION - CALCULATION OF A BENEFIT PAYABLE UNDER THE LEGISLATION OF A SINGLE MEMBER STATE BY MEANS OF AGGREGATION AND PROPORTIONAL CALCULATION - NOT PERMISSIBLE

( EEC TREATY, ARTICLE 51; REGULATION NO 3, ARTICLES 27 AND 28 )

2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD AGE AND DEATH ( PENSIONS ) INSURANCE - PENSION RIGHTS RELATING TO SEPARATE PERIODS - ABSENCE OF IMPROPER ACCUMULATION

( EEC TREATY, ARTICLE 51; REGULATION NO 3, ARTICLES 27 AND 28 )

3 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - SYSTEM PROVIDED FOR BY REGULATION NO 3 - RETENTION OF SEPARATE NATIONAL SYSTEMS AND OF SEPARATE CLAIMS - OBSERVANCE OF THIS SYSTEM BY THE COMPETENT INSTITUTIONS OF THE MEMBER STATES

1 . WHEN IN ONE MEMBER STATE THE RIGHT TO BENEFIT ARISES WITHOUT ITS BEING NECESSARY TO REFER TO PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES, THE COMPETENT INSTITUTION OF THE FIRST STATE IS NOT EMPOWERED TO APPLY ARTICLES 27 AND 28 OF REGULATION NO 3 IN ORDER TO REDUCE THE BENEFIT WHICH IT IS OBLIGED TO PAY BY VIRTUE OF ITS OWN LEGISLATION, AT LEAST IN SO FAR AS THAT BENEFIT DOES NOT RELATE TO PERIODS WHICH HAVE ALREADY BEEN TAKEN INTO ACCOUNT IN THE CALCULATION OF THE AMOUNT OF THE BENEFIT PAID BY THE COMPETENT INSTITUTION OF ANOTHER STATE .

2 . THE ACCUMULATION OF A BENEFIT PAYABLE IN ONE STATE UNDER NATIONAL LEGISLATION ALONE WITH A BENEFIT PAYABLE IN ANOTHER STATE OWING TO THE EFFECT OF AGGREGATION DOES NOT CONSTITUTE AN ADVANTAGE CONTRARY TO COMMUNITY RULES AS LONG AS THE PERIODS IN RESPECT OF WHICH THESE PAYMENTS ARE DUE DO NOT OVERLAP .

3 . AS REGULATION NO 3 HAS ALLOWED THE CONTINUANCE OF SEPARATE SYSTEMS CREATING SEPARATE CLAIMS AGAINST SEPARATE INSTITUTIONS, THE INSTITUTION OF ONE STATE CANNOT IPSO FACTO BE JUSTIFIED IN RELYING ON THE CHARGE WHICH COMMUNITY LAW IMPOSES ON THE INSTITUTION OF ANOTHER STATE IN ORDER TO REDUCE THE CHARGE WHICH ITS OWN LEGISLATION IMPOSES UPON IT .

IN CASE 1/67

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOCIAL CHAMBER OF THE COUR D' APPEL, ORLEANS ( FRANCE ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

STANISLAS CIECHELSKI, RESIDING AT ORLEANS,

AND

CAISSE REGIONALE DE SECURITE SOCIALE DU CENTRE, ORLEANS,

TOGETHER WITH

DIRECTEUR REGIONAL DE LA SECURITE SOCIALE D' ORLEANS, ORLEANS,

ON THE INTERPRETATION OF ARTICLE 51 OF THE ABOVE-MENTIONED TREATY AND ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.561 ET SEQ .);

P.187

THE COUR D' APPEL, ORLEANS, REQUESTS THE COURT TO GIVE A RULING ' ON THE INTERPRETATION TO BE GIVEN TO ARTICLE 51 OF THE TREATY OF ROME AND TO ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, FOR THE PURPOSE OF SPECIFYING WHETHER THIS REGULATION CAN VALIDLY DEPRIVE A WORKER OF A PART OF THE RIGHTS ACQUIRED BY HIM IN ONE OF THE STATES OF THE COMMUNITY '.

CASES ARISING UNDER SYSTEMS WITH INSURANCE PERIODS, SUCH AS THAT WHICH HAS GIVEN RISE TO THE QUESTION SET OUT ABOVE, ARE CHARACTERIZED FIRST OF ALL BY THE FACT THAT IN ONE OF THE STATES CONCERNED THE BENEFIT IS ACQUIRED BY VIRTUE OF NATIONAL LAW ALONE, WHILST IN THE OTHER STATE CONCERNED A RIGHT TO BENEFIT CAN ARISE ONLY WITH THE ASSISTANCE OF THE AGGREGATION OF THE PERIODS, AS PROVIDED FOR BY ARTICLE 51 OF THE EEC TREATY AND ARTICLE 27 OF REGULATION NO 3 . FURTHERMORE THEY HAVE THE PECULIARITY THAT THE APPLICATION BY THE COMPETENT INSTITUTION OF THE FIRST STATE OF ARTICLES 27 AND 28 OF THE SAID REGULATION MIGHT HAVE THE EFFECT OF REDUCING THE BENEFIT ARISING FROM THE APPLICATION OF NATIONAL LAW ALONE, WHILST THAT BENEFIT WOULD NOT BE RELATED TO THE PERIODS FROM THE SECOND STATE . IT IS NECESSARY THEREFORE TO CONSIDER WHETHER IN SUCH A CASE THE INSTITUTION PAYING A PENSION ARISING BY VIRTUE ONLY OF ITS NATIONAL LAW IS JUSTIFIED IN APPLYING THE SAID ARTICLES 27 AND 28 .

( 1 ) UNDER THE TERMS OF ARTICLES 28(1)(A ), THE PROVISIONS OF THAT ARTICLE, AND IN PARTICULAR SUBPARAGRAPH ( B ) WHICH PROVIDES FOR THE SO - CALLED PROPORTIONAL CALCULATION, APPEAR TO BE APPLICABLE EQUALLY TO EVERY ' INSURED PERSON COVERED BY ARTICLE 27 OF THIS REGULATION ' - THAT IS TO SAY, HAVING BEEN ' SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES ' - AS WELL AS TO ' THE INSTITUTION OF EACH OF THE MEMBER STATES '. NEVERTHELESS, UNDER THE TERMS OF THE SAID SUBPARAGRAPH ( B ) PROPORTIONAL CALCULATION SHALL BE USED WHEN THE RIGHT TO BENEFIT ' IS ACQUIRED BY VIRTUE OF SUBPARAGRAPH ( A ) ', THAT IS TO SAY, ' TAKING INTO ACCOUNT THE AGGREGATION OF PERIODS ' COMPLETED UNDER THE LEGISLATION OF VARIOUS STATES IN ACCORDANCE WITH ARTICLE 27, WHICH SUGGESTS A CONTRARIO THAT PROPORTIONAL CALCULATION IS EXCLUDED IF, ACCORDING TO THE NATIONAL LEGISLATION IN QUESTION, THE RIGHT OF THE INSURED PERSON IS ACQUIRED WITHOUT THE NEED TO REFER TO PERIODS COMPLETED BY VIRTUE OF THE LEGISLATION OF OTHER STATES . THIS INTERPRETATION FINDS SUPPORT IN ARTICLE 27(1 ) WHICH PROVIDES FOR AGGREGATION ONLY ' FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT ', BUT NOT FOR ' CALCULATING THE AMOUNT OF BENEFIT ', THE EXPRESSION USED IN ARTICLE 51 OF THE TREATY . IN FACT, THAT WORDING SEEMS TO LIMIT AGGREGATION TO CASES IN WHICH IT IS NECESSARY IN ORDER TO ESTABLISH A RIGHT TO BENEFIT AND TO EXCLUDE IT IN CASES WHERE IT WOULD HAVE THE EFFECT SIMPLY OF MAINTAINING OR VARYING THE CONTENT OF A RIGHT ALREADY ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE .

P.188

( 2 ) IN VIEW OF THE DIFFICULTIES OF INTERPRETATION OF THESE PROVISIONS IT IS NECESSARY TO CONSIDER THEM IN THE LIGHT OF ARTICLES 48 TO 51 OF THE TREATY WHICH THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS .

THESE PROVISIONS ARE AIMED AT SECURING ' FREEDOM OF MOVEMENT FOR WORKERS ', PARTICULARLY BY ' THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF THE MEMBER STATES AS REGARDS EMPLOYMENT, REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT '. MORE PARTICULARLY, ARTICLE 51 SPECIFIES THAT THE REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF MUST MAKE ' ARRANGEMENTS TO SECURE FOR MIGRANT WORKERS...AGGREGATION, FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES '. THESE PROVISIONS ESTABLISH AT THE OUTSET THAT THE SAID REGULATIONS, REGARDED AS A WHOLE, ARE INTENDED, IN CERTAIN CIRCUMSTANCES, TO BENEFIT THE MIGRANT WORKER AS COMPARED WITH THE SITUATION WHICH WOULD RESULT FOR HIM FROM THE EXCLUSIVE APPLICATION OF NATIONAL LAW . IN CASE OF DOUBT THESE REGULATIONS MUST THEREFORE BE INTERPRETED IN THE LIGHT OF THIS OBJECTIVE .

IT FOLLOWS FROM ITS VERY WORDING THAT ARTICLE 51 REFERS ABOVE ALL TO CASES IN WHICH THE LEGISLATION OF ONE MEMBER STATE BY ITSELF WOULD NOT ENABLE AN INSURED PERSON TO QUALIFY FOR THE RIGHT TO BENEFIT BECAUSE OF AN INSUFFICIENT NUMBER OF PERIODS COMPLETED UNDER THAT LEGISLATION . IN SUCH A CASE IT SEEKS TO REQUIRE TO TAKE INTO ACCOUNT THE PERIODS COMPLETED UNDER THE SYSTEMS OF OTHER MEMBER STATES AND TO PAY BENEFIT IN SO FAR AS THE TOTAL OF THE PERIODS THUS ADDED TOGETHER EQUALS OR EXCEEDS THE MINIMUM NUMBER OF PERIODS PROVIDED FOR BY THE LEGISLATION OF THE SAID STATE . HOWEVER, IF SUCH BENEFIT IS NOT TO CONFER UNJUSTIFIED ADVANTAGES UPON THE PERSON INSURED, IT CANNOT, UNDER THE TERMS OF ARTICLE 28(1)(B ) OF REGULATION NO 3, EXCEED THE ' ( AMOUNT DUE ) PRO RATA WITH THE LENGTH OF THE PERIODS COMPLETED UNDER THE SAID LEGISLATION...AS COMPARED WITH THE TOTAL LENGTH OF THE PERIODS COMPLETED UNDER THE LEGISLATION OF ALL THE MEMBER STATES CONCERNED '. THUS THE POWER TO MAKE A PROPORTIONAL CALCULATION, WHICH IS PROVIDED FOR BY THE ABOVE-MENTIONED PROVISION, WHILST NOT EXPRESSLY REFERRED TO BY ARTICLE 51 OF THE TREATY, IS AN INSEPARABLE COMPONENT OF THE OPERATION OF AGGREGATION AND NECESSARILY PRESUPPOSES A PRIOR AGGREGATION .

P.189

IT FOLLOWS FROM THE FOREGOING THAT AGGREGATION AND PROPORTIONAL CALCULATION HAVE NO PURPOSE IN THE CASE OF A STATUTE IN WHICH THE RESULT SOUGHT BY ARTICLE 51 IS ALREADY ATTAINED BY VIRTUE OF NATIONAL LEGISLATION ALONE . ARTICLE 51 CANNOT THEREFORE SERVE AS A BASIS FOR CALCULATION OF THE BENEFIT BY THE COMPETENT INSTITUTION OF THAT STATE BY MEANS OF AGGREGATION AND PROPORTIONAL CALCULATION .

( 3 ) HAVING REGARD, NEVERTHELESS, TO THE COMPLEXITY OF THE LEGISLATION OF MEMBER STATES AND THAT ARISING FROM THE PROVISIONS OF COMMUNITY LAW, THIS PRINCIPLE CANNOT BE REGARDED AS AN ABSOLUTE RULE . IN PARTICULAR IT CAN BE VALID ONLY IN SO FAR AS ITS APPLICATION DOES NOT PROVIDE THE INSURED PERSON WITH BENEFITS EXCEEDING THOSE EXPRESSLY PROVIDED FOR BY ARTICLE 51 OF THE TREATY OR THE REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF .

THE SAID ARTICLE IS INTENDED TO TAKE INTO ACCOUNT INSURANCE PERIODS WHICH WOULD OTHERWISE BE INOPERATIVE, BUT NOT TO ALLOW THE INSURED PERSON TO CLAIM BENEFITS RELATING TO ONE AND THE SAME PERIOD FROM THE INSTITUTIONS OF SEVERAL STATES . IT IS MOREOVER IN THIS SPIRIT THAT ARTICLE 27(1 ) OF REGULATION NO 3 PROVIDES FOR AGGREGATION ONLY TO THE EXTENT TO WHICH THE ASSURANCE PERIODS IN QUESTION ' DO NOT OVERLAP '. THE ABOVE-MENTIONED PRINCIPLE IS THUS SUBJECT TO AN EXCEPTION WHEN ITS APPLICATION WOULD LEAD TO AN ACCUMULATION OF BENEFITS FOR ONE AND THE SAME PERIOD .

HOWEVER IN CASES SUCH AS THE PRESENT THERE IS NO UNDUE ACCUMULATION OF BENEFITS . IN FACT IN THIS CASE THE BENEFIT PAID BY ONE OF THE STATES CONCERNED UNDER ITS LEGISLATION AS SUPPLEMENTED BY COMMUNITY LAW, ON THE ONE HAND, AND THE BENEFIT PAID BY THE OTHER STATE CONCERNED ON THE BASIS OF ITS OWN LEGISLATION ALONE, ON THE OTHER HAND, REFER TO ENTIRELY DISTINCT PERIODS . IN PARTICULAR THE PURPOSE OF ARTICLE 51 OF THE TREATY CANNOT CAUSE THE FACT THAT THE INSURED PERSON HAS MAINTAINED THE RIGHTS ACQUIRED IN THE LATTER STATE AND AT THE SAME TIME HAS BECOME ENTITLED TO BENEFIT IN THE FORMER STATE TO BE REGARDED AS AN ACCUMULATION OF BENEFITS CONTRARY TO COMMUNITY RULES . THESE CONSIDERATIONS REMAIN VALID EVEN IN A CASE IN WHICH THE BENEFIT WHICH THE INSURED PERSON OBTAINS FROM THE APPLICATION OF ARTICLE 27 IN ONE STATE IS MORE THAN THE LOSS WHICH HE WOULD SUFFER IF ANOTHER STATE WERE TO APPLY ARTICLE 28 WITHOUT THE NEED TO HAVE RECOURSE TO ARTICLE 27 . THE INSTITUTION OF A STATE WHOSE LEGISLATION INCLUDES A CEILING FOR BENEFIT ESTABLISHED IN TERMS OF A MAXIMUM NUMBER OF PERIODS CANNOT RELY EITHER UPON THE SAID ARTICLES 27 AND 28 AS AN ARGUMENT FOR A PROPORTIONAL CALCULATION OF THE BENEFIT DUE IN ACCORDANCE WITH THAT LEGISLATION, WITH THE OBJECT OF BRINGING THE TOTAL BENEFIT DUE TO A MIGRANT WORKER NEARER THE SAID CEILING . IN FACT, AS REGULATION NO 3 HAS ALLOWED THE CONTINUANCE OF SEPARATE SYSTEMS CREATING SEPARATE CLAIMS AGAINST SEPARATE INSTITUTIONS, THE INSTITUTION OF ONE STATE CANNOT IPSO FACTO BE JUSTIFIED IN RELYING ON THE CHARGE WHICH COMMUNITY LAW IMPOSES ON THE INSTITUTION OF ANOTHER STATE IN ORDER TO REDUCE THE CHARGE WHICH ITS OWN LEGISLATION IMPOSES UPON IT .

P.190

THE FOREGOING CONSIDERATIONS TAKEN AS A WHOLE LEAD ONE TO ADMIT THAT IN CASES SUCH AS THE PRESENT THE INSTITUTION OF A STATE IN WHICH THE INSURED PERSON CAN QUALIFY WITHOUT AGGREGATION CANNOT RELY UPON ARTICLES 27 AND 28 OF REGULATION NO 3 FOR THE PURPOSES OF REDUCING THE BENEFIT WHICH IT WOULD BE REQUIRED TO PAY SOLELY UPON THE BASIS OF ITS NATIONAL LEGISLATION .

ARTICLES 27 AND 28 OF REGULATION NO 3, WHEN INTERPRETED IN THE MANNER SET OUT ABOVE, ARE NOT CONTRARY TO ARTICLE 51 OF THE EEC TREATY . IN FACT, FAR FROM PREJUDICING THE RIGHTS OF A MIGRANT WORKER, THEY RESPECT THE RIGHTS ACQUIRED BY HIM IN ONE STATE WHILST GRANTING HIM THE RIGHT TO QUALIFY FOR A PENSION IN ANOTHER STATE .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND 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, ORLEANS, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D' APPEL, ORLEANS, BY JUDGMENT OF THAT COURT OF 22 DECEMBER 1966, HEREBY RULES :

1 . WHEN IN ONE MEMBER STATE THE RIGHT TO BENEFIT ARISES WITHOUT ITS BEING NECESSARY TO REFER TO PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES, THE COMPETENT INSTITUTION OF THE FIRST STATE IS NOT EMPOWERED TO APPLY ARTICLES 27 AND 28 OF REGULATION NO 3 IN ORDER TO REDUCE THE BENEFIT WHICH IT IS OBLIGED TO PAY BY VIRTUE OF ITS OWN LEGISLATION, AT LEAST IN SO FAR AS THAT BENEFIT DOES NOT RELATE TO PERIODS WHICH HAVE ALREADY BEEN TAKEN INTO ACCOUNT IN THE CALCULATION OF THE AMOUNT OF THE BENEFIT PAID BY THE COMPETENT INSTITUTION OF ANOTHER STATE;

2 . ARTICLES 27 AND 28 OF REGULATION NO 3, WHEN INTERPRETED IN THE MANNER SET OUT ABOVE, ARE NOT CONTRARY TO ARTICLE 51 OF THE EEC TREATY;

3 . IT IS FOR THE COUR D' APPEL, ORLEANS, TO DECIDE UPON THE COSTS OF THESE PROCEEDINGS .