61978J0010

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - PERSONS COVERED - NATIONALS OF ONE OF THE MEMBER STATES - DATE ON WHICH THE CRITERION OF NATIONALITY MUST BE SATISFIED

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 2 ( 1 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - ENTRY INTO FORCE - INSURANCE PERIODS COMPLETED PREVIOUSLY - TAKING INTO CONSIDERATION - CRITERION OF NATIONALITY OF ONE OF THE MEMBER STATES

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 2 ( 1 ) AND 94 ( 2 ))

1 . THE CRITERION OF NATIONALITY OF ONE OF THE MEMBER STATES LAID DOWN BY ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 MUST BE EXAMINED IN DIRECT RELATIONSHIP TO THE PERIODS DURING WHICH THE WORKER CARRIED ON HIS WORK AND NOT TO THE TIME WHEN HE SUBMITTED HIS APPLICATION FOR BENEFITS .

2 . ARTICLE 2 ( 1 ) AND ARTICLE 94 ( 2 ) OF REGULATION NO 1408/71 , READ IN CONJUNCTION WITH ONE ANOTHER , ARE TO BE INTERPRETED AS GUARANTEEING THAT ALL INSURANCE PERIODS AND ALL PERIODS OF EMPLOYMENT OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE BEFORE THE ENTRY INTO FORCE OF THAT REGULATION SHALL BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO BENEFITS IN ACCORDANCE WITH ITS PROVISIONS , SUBJECT TO THE CONDITION THAT THE MIGRANT WORKER WAS A NATIONAL OF ONE OF THE MEMBER STATES WHEN THE PERIODS WERE COMPLETED .

IN CASE 10/78

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE SOZIALGERICHT GELSENKIRCHEN ( THIRD CHAMBER ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

TAYEB BELBOUAB

AND

BUNDESKNAPPSCHAFT ( FEDERAL MINEWORKERS ' INSURANCE INSTITUTION )

ON THE INTERPRETATION OF REGULATIONS NOS 1408/71 AND 574/72 , AS REGARDS THE CONCEPT OF LEGAL RIGHTS ACQUIRED BY A WORKER WHO WAS A COMMUNITY MIGRANT WORKER FOR A PART OF HIS WORKING LIFE BUT WHO SUBSEQUENTLY BECAME A FOREIGN WORKER FOLLOWING A CHANGE OF NATIONALITY CONSEQUENT UPON THE SETTING UP OF A NEW STATE ,

1BY AN ORDER OF 7 DECEMBER 1977 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 1 FEBRUARY 1978 THE SOZIALGERICHT GELSENKIRCHEN REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY QUESTIONS RELATING TO THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1972 ( I ), P . 160 ) WITH REGARD TO THE CONCEPT OF LEGAL RIGHTS ACQUIRED BY A WORKER WHO WAS A COMMUNITY MIGRANT WORKER FOR A PART OF HIS WORKING LIFE BUT WHO SUBSEQUENTLY BECAME A FOREIGN WORKER FOLLOWING A CHANGE OF NATIONALITY CONSEQUENT UPON THE SETTING UP OF A NEW STATE .

2THE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN THE BUNDESKNAPPSCHAFT , SAARBRUCKEN , AND A MINEWORKER BORN IN ALGERIA IN 1924 , A FRENCH NATIONAL BY BIRTH , WHO WORKED IN FRANCE FOR 155 MONTHS AND SUBSEQUENTLY , AS FROM 26 MAY 1961 , IN GERMANY BUT WHO LOST FRENCH NATIONALITY ON 1 JULY 1962 WHEN ALGERIA BECAME INDEPENDENT .

ON REACHING THE AGE OF 50 THE PLAINTIFF APPLIED FOR A MINEWORKER ' S PENSION IN ACCORDANCE WITH ARTICLE 45 ( 1 ) ( 2 ) OF THE GERMAN LAW ON SOCIAL INSURANCE FOR MINEWORKERS ( REICHSKNAPPSCHAFTSGESETZ ) WHICH LAYS DOWN THE REQUIREMENT THAT THE APPLICANT MUST HAVE COMPLETED AN INSURANCE PERIOD OF 300 MONTHS IN REGULAR WORK AS AN UNDERGROUND WORKER OR IN ASSIMILATED WORK .

THE APPLICATION WAS REJECTED BY THE COMPETENT GERMAN BODY ( THE BUNDESKNAPPSCHAFT ) ON THE GROUND THAT THE PLAINTIFF NO LONGER POSSESSED THE NATIONALITY OF A MEMBER STATE OF THE COMMUNITY AND THEREFORE REGULATION NO 1408/71 WAS NO LONGER APPLICABLE TO HIM AND IN CONSEQUENCE HIS RIGHT TO A PENSION COULD BE EXAMINED ONLY ON THE BASIS OF GERMAN LAW .

A PROTEST BY THE PLAINTIFF WAS ALSO REJECTED ON THE GROUNDS ON THE ONE HAND THAT REGULATION NO 109 OF THE COUNCIL OF 30 JUNE 1965 ( JOURNAL OFFICIEL 1965 , P . 2124 ) MADE REGULATIONS NOS 3 AND 4 ON SOCIAL SECURITY FOR MIGRANT WORKERS , AND THEREFORE REGULATION NO 1408/71 WHICH REPLACED REGULATION NO 3 , INAPPLICABLE TO ALGERIA AND ALGERIAN NATIONALS AS FROM 19 JANUARY 1965 AND , ON THE OTHER , THAT ' ' IT WAS NOT A QUESTION OF WHAT NATIONALITY THE APPLICANT POSSESSED DURING THE PERIOD WHEN HE WAS EMPLOYED IN THE FRENCH MINES , BUT HIS NATIONALITY AT THE TIME OF CONSIDERATION OF THE APPLICATION FOR A PENSION ' ' .

3AN APPLICATION FOR THE ANNULMENT OF THAT ADMINISTRATIVE DECISION WAS BROUGHT BEFORE THE SOZIALGERICHT GELSENKIRCHEN WHICH TAKES THE VIEW THAT THE PLAINTIFF , AS AN ALGERIAN NATIONAL , IS NOT A PERSON COVERED BY REGULATION NO 1408/71 SINCE UNDER ARTICLE 2 ( 1 ) OF THAT REGULATION IT IS APPLICABLE ONLY TO WORKERS WHO ARE NATIONALS OF ONE OF THE MEMBER STATES OR WHO ARE STATELESS PERSONS OR REFUGEES RESIDING WITHIN THE TERRITORY OF ONE OF THE MEMBER STATES .

NEVERTHELESS , ACCORDING TO THE SOZIALGERICHT , THE PLAINTIFF HAS ACQUIRED , BY VIRTUE OF HIS EFFORTS AND HAVING REGARD TO THE INSURANCE PERIODS COMPLETED IN FRANCE , LEGAL RIGHTS ANALOGOUS TO A PROPRIETARY RIGHT UNDER GERMAN CONSTITUTIONAL LAW WHICH ARE PROTECTED BY ARTICLE 14 OF THE GRUNDGESETZ ( BASIC LAW ) AND WHICH CANNOT BE TAKEN AWAY WITHOUT COMPENSATION .

IN THE VIEW OF THE SOZIALGERICHT , ALTHOUGH ARTICLE 16 ( 2 ) OF REGULATION NO 109/65 HAD THE EFFECT OF DELETING ALGERIA FROM ANNEX A TO REGULATION NO 3 ' ' WITHOUT PREJUDICE TO ACCRUED RIGHTS ' ' , THAT ARTICLE WAS REPEALED BY VIRTUE OF THE FACT THAT ARTICLE 99 OF REGULATION NO 1408/71 REPEALED REGULATION NO 3 AND CONSEQUENTLY REGULATION NO 109/75 WHICH CONTAINED ONLY AMENDMENTS TO THE PROVISIONS OF REGULATION NO 3 HAS CEASED TO HAVE ANY EFFECT .

THAT IS THE SITUATION UNDERLYING THE THREE QUESTIONS WHICH HAVE BEEN REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING .

4THE BASIC REASONING OF THE NATIONAL COURT RESTS ON THE PREMISES THAT THE PERSONAL CRITERION OF THE NATIONALITY OF THE PLAINTIFF WHICH IS TO BE TAKEN INTO ACCOUNT PURSUANT TO ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 IS THAT EXISTING AT THE TIME OF THE APPLICATION FOR A PENSION AND THAT NEITHER REGULATION NO 1408/71 NOR REGULATION NO 574/72 CONTAINS ANY PROVISION ANALOGOUS TO ARTICLE 16 ( 2 ) OF REGULATION NO 109/65 PROTECTING ACCRUED RIGHTS .

IT IS THEREFORE NECESSARY TO EXAMINE FIRST WHETHER THESE PREMISES ARE IN ACCORDANCE WITH COMMUNITY LAW .

5THE ESTABLISHMENT OF THE GREATEST POSSIBLE FREEDOM OF MOVEMENT FOR MIGRANT WORKERS , WHICH IS ONE OF THE FOUNDATIONS OF THE COMMUNITY , IS THE PRIMARY AIM OF ARTICLE 51 OF THE TREATY .

IT IS IN THE LIGHT OF THAT OBJECTIVE THAT REGULATIONS IMPLEMENTING THAT ARTICLE ARE TO BE INTERPRETED .

6THE PERSONS COVERED BY REGULATION NO 1408/71 ARE DEFINED IN ARTICLE 2 OF THE REGULATION AS FOLLOWS : ' ' THIS REGULATION SHALL APPLY TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES AND WHO ARE NATIONALS OF ONE OF THE MEMBER STATES . . . ' ' .

THAT PROVISION LAYS DOWN TWO CONDITIONS FOR THE APPLICATION OF THE REGULATION :

( A ) THAT A WORKER IS OR HAS BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES ; AND

( B ) THAT THE WORKER IS A NATIONAL OF ONE OF THE MEMBER STATES .

7IN ORDER TO SATISFY THE PRINCIPLE OF LEGAL CERTAINTY , ONE OF THE REQUIREMENTS OF WHICH IS THAT ANY FACTUAL SITUATION SHOULD NORMALLY , IN THE ABSENCE OF ANY CONTRARY PROVISION , BE EXAMINED IN THE LIGHT OF THE LEGAL RULES EXISTING AT THE TIME WHEN THAT SITUATION OBTAINED , THE SECOND CONDITION MUST BE INTERPRETED AS MEANING THAT THE STATUS OF BEING A NATIONAL OF ONE OF THE MEMBER STATES REFERS TO THE TIME OF THE EMPLOYMENT , OF THE PAYMENT OF THE CONTRIBUTIONS RELATING TO THE INSURANCE PERIODS AND OF THE ACQUISITION OF THE CORRESPONDING RIGHTS .

IT IS CLEAR FROM THIS THAT THE CRITERION OF NATIONALITY LAID DOWN BY ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 MUST BE EXAMINED IN DIRECT RELATIONSHIP TO THE PERIODS DURING WHICH THE WORKER IN QUESTION CARRIED ON HIS WORK .

8THIS INTERPRETATION IS SUPPORTED BY ARTICLE 94 ( 2 ) OF REGULATION NO 1408/71 WHICH PROVIDES THAT ' ' ALL INSURANCE PERIODS , AS ALSO , WHERE APPLICABLE , ALL PERIODS OF EMPLOYMENT OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE BEFORE THE DATE OF ENTRY INTO FORCE OF THIS REGULATION . . ., SHALL BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THIS REGULATION ' ' .

THAT ARTICLE CLEARLY IMPLIES THAT ACCRUED RIGHTS ARE TO BE RECOGNIZED AND PROTECTED UNDER THE COMMUNITY RULES ON SOCIAL SECURITY FOR MIGRANT WORKERS IF THEY WERE ACQUIRED BY A MIGRANT WITHIN THE MEANING OF THE AFORESAID PROVISIONS , THAT IS TO SAY A NATIONAL OF A MEMBER STATE .

CONSEQUENTLY , ARTICLE 2 ( 1 ) AND ARTICLE 94 ( 2 ) OF REGULATION NO 1408/71 , READ IN CONJUNCTION WITH ONE ANOTHER , ARE TO BE INTERPRETED AS GUARANTEEING THAT ALL INSURANCE PERIODS AND ALL PERIODS OF EMPLOYMENT OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE BEFORE THE ENTRY INTO FORCE OF THAT REGULATION SHALL BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO BENEFITS IN ACCORDANCE WITH ITS PROVISIONS , SUBJECT TO THE CONDITION THAT THE MIGRANT WORKER WAS A NATIONAL OF ONE OF THE MEMBER STATES WHEN THE PERIODS WERE COMPLETED .

9IN REACHING THIS SOLUTION , WHICH PROVIDES THE NATIONAL COURT WITH ALL THE FACTORS FOR THE INTERPRETATION OF COMMUNITY LAW WHICH ARE NECESSARY TO RESOLVE THE PROBLEM WITH WHICH IT IS CONFRONTED , IT IS NOT NECESSARY TO HAVE RECOURSE TO THE INTERPRETATION OF ARTICLE 16 ( 2 ) OF REGULATION NO 109/65 OF 30 JUNE 1965 AMENDING AND SUPPLEMENTING REGULATIONS NOS 3 AND 4 ON SOCIAL SECURITY FOR MIGRANT WORKERS .

IN FACT REGULATION NO 109/65 RELATES TO THE INCLUSION OF ALGERIA IN THE TERRITORIES COVERED BY REGULATIONS NOS 3 AND 4 AND CONTAINS NO PROVISION RELATING TO THE INCLUSION OF WORKERS OF ALGERIAN ORIGIN AMONGST THE PERSONS COVERED BY THE TWO REGULATIONS .

CONSEQUENTLY , ARTICLE 16 ( 2 ) OF REGULATION NO 109/65 IS NOT APPLICABLE IN THE PRESENT CASE AS ALGERIA IS EXCLUDED FROM ITS GEOGRAPHICAL EXTENT AND NATIONALS OF THE FRENCH UNION ARE EXCLUDED FROM THE DEFINITION OF PERSONS COVERED , WHEREAS THE PLAINTIFF WORKED IN FRANCE , NOT ALGERIA , AND WAS , AT THAT TIME , OF FRENCH NATIONALITY AND NOT A NATIONAL OF THE FRENCH UNION .

10THE ANSWER GIVEN TO THE THIRD QUESTION MAKES IT UNNECESSARY TO REPLY TO THE FIRST TWO QUESTIONS AS , INTERPRETED IN THAT WAY , THE PROVISION IN QUESTION CONTAINS NO FACTOR OF SUCH A KIND AS TO PREJUDICE THE FUNDAMENTAL HUMAN RIGHTS INCLUDED IN THE GENERAL PRINCIPLES OF COMMUNITY LAW WHICH THE COURT MUST PROTECT .

COSTS

11THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS 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 SOZIALGERICHT GELSENKIRCHEN , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT GELSENKIRCHEN BY ORDER OF 7 DECEMBER 1977 , HEREBY RULES :

ARTICLE 2 ( 1 ) AND ARTICLE 94 ( 2 ) OF REGULATION NO 1408/71 , READ IN CONJUNCTION WITH ONE ANOTHER , ARE TO BE INTERPRETED AS GUARANTEEING THAT ALL INSURANCE PERIODS AND ALL PERIODS OF EMPLOYMENT OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE BEFORE THE ENTRY INTO FORCE OF THAT REGULATION SHALL BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO BENEFITS IN ACCORDANCE WITH ITS PROVISIONS , SUBJECT TO THE CONDITION THAT THE MIGRANT WORKER WAS A NATIONAL OF ONE OF THE MEMBER STATES WHEN THE PERIODS WERE COMPLETED .