61967J0018

++++

FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD - AGE AND DEATH ( PENSIONS ) INSURANCE - PENSION RIGHTS RELATING TO ACTUAL INSURANCE PERIODS ASSIMILATED BY VIRTUE OF THE LEGISLATION OF DIFFERENT MEMBER STATES - CALCULATION OF BENEFITS ON THE BASIS OF DIFFERENT UNITS OF COMPUTATION IN EACH STATE - CONVERSION INTO A UNIFORM UNIT FOR THE PRO RATA CALCULATION

WHEN PERIODS ASSIMILATED TO INSURANCE PERIODS UNDER THE LEGISLATION OF ONE MEMBER STATE OVERLAP INSURANCE PERIODS ACTUALLY COMPLETED IN ANOTHER STATE AND GIVING A RIGHT IN THAT STATE TO A PENSION, AND WHEN THE UNITS OF TIME ADOPTED BY THE LEGISLATION OF THESE STATES ARE DIFFERENT, IT IS NECESSARY, AS REGARDS BOTH THE DENOMINATOR AND THE NUMERATOR OF THE FRACTION FOR PRO RATA CALCULATIONS, TO CONVERT THESE UNITS INTO THE SMALLEST OF THE UNITS OF TIME ADOPTED BY THE STATES CONCERNED WHEN THIS SMALLEST UNIT IS A FRACTION OF THE OTHER, OR, IN DEFAULT THEREOF, TO CONVERT THESE UNITS INTO A COMMON MULTIPLE .

IN CASE 18/67

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BELGIAN CONSEIL D' ETAT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ARGIA PAGOTTO ( NEE COSSUTTA ), THE WIDOW OF GIUSEPPE PAGOTTO,

AND

OFFICE NATIONAL DES PENSIONS POUR OUVRIERS, BRUSSELS,

ON THE INTERPRETATION OF ARTICLE 28(1)(B ) OF REGULATION NO 3 AND ARTICLE 13(4 ) OF REGULATION NO 4 OF THE COUNCIL OF THE EEC, CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

P.313

REFERRING IN GENERAL TERMS TO THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC, THE BELGIAN CONSEIL D' ETAT POSES THE QUESTION WHETHER THE DENOMINATOR OF THE FRACTION FOR THE PRO RATA CALCULATION OF A BENEFIT SHOULD BE DETERMINED ON THE BASIS OF THE SAME UNIT OF TIME IN ALL THE MEMBER STATES IN WHICH THE INSURED PERSON HAS COMPLETED INSURANCE PERIODS, AND WHAT, IF THE ANSWER SHOULD BE IN THE AFFIRMATIVE, THAT UNIT SHOULD BE . IN ITS STATEMENT OF THE REASONS FOR THE REFERENCE TO THE COURT OF JUSTICE, THE CONSEIL D' ETAT MENTIONS IN PARTICULAR THAT THE PARTIES ARE IN DISAGREEMENT ON POINTS OF LAW AS REGARDS THE INTERPRETATION OF ARTICLE 28(1)(B ) OF THE SAID REGULATION .

IT DOES NOT APPEAR FROM THE FACTORS TAKEN INTO ACCOUNT BY THE NATIONAL COURT AND FORMING THE LEGAL FRAMEWORK OF THE QUESTION THAT THAT QUESTION HAS BEEN FORMULATED WITH A VIEW TO AN AGGREGATION OF THE PERIODS .

HOWEVER, THE MAIN QUESTION RAISED IN THIS CASE IN RESPECT OF THE INTERPRETATION OF COMMUNITY REGULATIONS CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS BEARS UPON THE WAY IN WHICH INSURANCE PERIODS MUST BE COUNTED TO DETERMINE THE PENSION OF A WORKER WHO HAS BEEN EMPLOYED IN DIFFERENT COUNTRIES WHEN THE UNITS USED IN THOSE COUNTRIES FOR SUCH CALCULATIONS ARE DIFFERENT . THE NECESSITY TO MAKE USE OF HOMOGENEOUS UNITS FOR SUCH COMPUTATION PURPOSES MUST BE RECONCILED WITH THE REQUIREMENT THAT THE REFERENCE UNIT ADOPTED BY ANY MEMBER STATE TO ASSESS INSURANCE PERIODS IN THAT STATE SHOULD BE RESPECTED . THIS REQUIREMENT MEANS IN PARTICULAR THAT, FOR THE PURPOSES OF ESTABLISHING THE RIGHT TO A PENSION IN ONE MEMBER STATE AND OF DETERMINING THE AMOUNT THEREOF, IT IS NOT POSSIBLE TO TAKE INTO ACCOUNT INSURANCE PERIODS COMPLETED IN THAT STATE, WHICH, EVEN AFTER AGGREGATION WITH PERIODS COMPLETED IN OTHER MEMBER STATES WITHIN EACH RELEVANT UNIT OF TIME, ARE SHORTER THAN THE PERIOD ADOPTED BY THE LEGISLATION OF THE FIRST STATE .

BUT THIS REQUIREMENT CANNOT RULE OUT THE POSSIBILITY OF CONVERTING THIS PERIOD INTO ANOTHER UNIT OF TIME, FOR THE PURPOSES OF COMPENSATORY CALCULATIONS NECESSARY TO AVOID DUPLICATION OF ONE AND THE SAME PERIOD, WHICH IS THEORETICAL IN RESPECT OF ONE MEMBER STATE BUT HAS ACTUALLY BEEN COMPLETED IN ANOTHER MEMBER STATE, SUCH PERIOD BEING, HOWEVER, COUNTED IN DIFFERENT UNITS OF TIME .

P.314

THEREFORE, THE FRACTION USED IN SUCH A CASE FOR PRO RATA CALCULATIONS SHOULD HAVE ITS DENOMINATOR AND NUMERATOR DETERMINED ACCORDING TO THE SAME UNIT OF TIME FOR ALL THE COUNTRIES CONCERNED, AND THIS UNIT OF TIME MUST BE THAT OF THE STATE HAVING THE SHORTEST INSURANCE PERIOD, WHEN THIS PERIOD IS A FRACTION OF THE OTHER PERIOD . OTHERWISE, THIS UNIT MUST BE A MULTIPLE COMMON TO THE VARIOUS UNITS OF TIME IN QUESTION .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH HAS 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, A STEP IN THE ACTION PENDING BEFORE THE BELGIAN CONSEIL D' ETAT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BELGIAN CONSEIL D' ETAT ( SECTION D' ADMINISTRATION, VITH CHAMBER ) BY ORDER OF THAT COURT OF 11 MAY 1967, HEREBY RULES :

1 . WHEN PERIODS ASSIMILATED TO INSURANCE PERIODS UNDER THE LEGISLATION OF ONE MEMBER STATE OVERLAP INSURANCE PERIODS ACTUALLY COMPLETED IN ANOTHER STATE AND GIVING A RIGHT IN THAT STATE TO A PENSION, AND WHEN THE UNITS OF TIME ADOPTED BY THE LEGISLATION OF THESE STATES ARE DIFFERENT, IT IS NECESSARY, AS REGARDS BOTH THE DENOMINATOR AND THE NUMERATOR OF THE FRACTION FOR PRO RATA CALCULATIONS, TO CONVERT THESE UNITS INTO THE SMALLEST OF THE UNITS OF TIME ADOPTED BY THE STATES CONCERNED WHEN THIS SMALLEST UNIT IS A FRACTION OF THE OTHER, OR, IN DEFAULT THEREOF, TO CONVERT THESE UNITS INTO A COMMON MULTIPLE;

2 . IT IS FOR THE BELGIAN CONSEIL D' ETAT TO DECIDE ON COSTS IN THE PRESENT CASE .