61967J0011

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1 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD-AGE AND DEATH ( PENSIONS ) INSURANCE - CALCULATION OF BENEFITS - APPLICATION OF THE SYSTEM PROVIDED FOR BY ARTICLES 27 AND 28 OF REGULATION NO 3 - THE BENEFICIARY'S OBJECTIVE SITUATION TO BE CONSIDERED

2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD-AGE AND DEATH ( PENSIONS ) INSURANCE - SYSTEM BASED ON INSURANCE PERIODS - AMOUNT OF RETIREMENT PENSION VARYING SOLELY ACCORDING TO INSURANCE PERIODS COMPLETED - RIGHTS TO A PENSION ACQUIRED BY CLAIMANT WITHOUT AGGREGATION OF COMPLETED PERIODS - ARTICLES 27 AND 28 OF REGULATION NO 3 NOT APPLICABLE

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

( REGULATION NO 3, ARTICLE 28 )

4 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - OLD-AGE AND DEATH ( PENSIONS ) INSURANCE - APPLICATION OF THE SYSTEM ESTABLISHED BY REGULATION NO 3 - GUARANTEE FOR PERSONS CONCERNED OF BENEFITS ACQUIRED BY VIRTUE OF THE LEGISLATIVE SYSTEMS OF MEMBER STATES - OPTIONS GRANTED BY SUCH LEGISLATION - WAIVER NOT REQUIRED - TIME FOR EXERCISING OPTIONS DETERMINED BY NATIONAL LEGISLATION

( REGULATION NO 3, ARTICLES 27 AND 28 )

1 . THE APPLICATION TO A MIGRANT WORKER OF THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 DOES NOT DEPEND UPON THE FREE CHOICE OF THE PERSON CONCERNED BUT UPON HIS OBJECTIVE SITUATION .

2 . AT LEAST IN THOSE SYSTEMS BASED ON INSURANCE PERIODS UNDER WHICH THE AMOUNT OF THE RETIREMENT PENSION VARIES IN PROPORTION SOLELY TO THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED ARTICLES 27 AND 28 OF REGULATION NO 3 DO NOT APPLY TO A MIGRANT WORKER WHO, IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT, DOES NOT HAVE TO RESORT TO AGGREGATION IN ANY OF THE MEMBER STATES IN WHICH HE HAS COMPLETED INSURANCE PERIODS .

3 . REGULATIONS NOS 3 AND 4 AND IN PARTICULAR ARTICLES 27 AND 28 OF REGULATION NO 3 TOGETHER WITH ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4 DO NOT IMPLY THAT THERE IS AN OBLIGATION TO DETERMINE SIMULTANEOUSLY AND ON THE BASIS OF THE SAME REFERENCE DATE AN OLD-AGE PENSION ACQUIRED IN ONE MEMBER STATE UNDER ARTICLE 27 AND ANOTHER OLD-AGE PENSION WHICH HAS NOT YET BEEN ACQUIRED IN ANOTHER MEMBER STATE OR WHICH HAS BEEN ACQUIRED IN ANOTHER MEMBER STATE WHOSE LEGISLATION PERMITS THE PAYMENT TO BE DEFERRED AT THE REQUEST OF THE PERSON CONCERNED;

CF . PARAGRAPH 3, SUMMARY, CASE 9/67 ( 1967 ) ECR 298 .

4 . SINCE THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3, IN CONFORMITY WITH THE OBJECTIVES OF ARTICLE 51 OF THE TREATY, AIM AT SECURING FOR A MIGRANT WORKER THE ADVANTAGES CORRESPONDING TO HIS VARIOUS PERIODS OF WORK THEY MAY NOT, IN THE ABSENCE OF AN EXPRESS EXCEPTION IN CONFORMITY WITH THE OBJECTIVES OF THE TREATY, BE APPLIED SO AS TO DEPRIVE HIM OF THE BENEFIT OF PART OF THE LEGISLATION OF A MEMBER STATE .

CLAIMING A PENSION FROM THE SOCIAL SECURITY INSTITUTION OF ONE MEMBER STATE DOES NOT THEREFORE IMPLY A WAIVER OF THE RIGHTS OF ELECTION WHICH THE LEGISLATIVE SYSTEMS OF OTHER MEMBER STATES GRANT THE WORKERS CONCERNED . THE NATIONAL SOCIAL SECURITY AUTHORITIES ARE COMPETENT TO DECIDE WHEN SUCH ELECTION MUST BE MADE .

IN CASE 11/67

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

OFFICE NATIONAL DES PENSIONS POUR OUVRIERS

AND

MARCEL COUTURE

ON THE INTERPRETATION OF ARTICLE 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 .) AND OF ARTICLE 30 OF REGULATION NO 4 OF THE COUNCIL OF THE EEC, ON IMPLEMENTATION PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF THE BEFORE-MENTIONED REGULATION NO 3 ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.597 ET SEQ .),

P.387

BY JUDGMENT OF 24 MARCH 1967 WHICH REACHED THE COURT REGISTRY ON 21 APRIL 1967 THE BELGIAN CONSEIL D' ETAT HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A REQUEST FOR THE INTERPRETATION OF ARTICLE 28 OF REGULATION NO 3 OF THE COUNCIL OF MINISTERS OF THE EEC AND OF ARTICLE 30 OF REGULATION NO 4 OF THE SAID COUNCIL .

THIS REQUEST FOR INTERPRETATION RAISES THE PRELIMINARY QUESTION WHETHER THE BEFORE - MENTIONED ARTICLES OF REGULATIONS NOS 3 AND 4 MUST BE CONSTRUED AS CONFERRING UPON A MIGRANT WORKER IN CERTAIN CIRCUMSTANCES ' THE RIGHT TO ELECT EITHER THE METHOD OF CALCULATION PROVIDED BY ARTICLE 28 OR THE METHOD OF CALCULATION RESULTING FROM THE APPLICATION OF THE LEGISLATION UNDER WHICH HE HAS COMPLETED THE INSURANCE PERIODS '.

THE SUBSEQUENT QUESTIONS DEAL ESSENTIALLY WITH THE QUESTION WHETHER AN APPLICATION FOR A PENSION MADE IN ONE MEMBER STATE AUTOMATICALLY IMPLIES, EVEN THOUGH CONTRARY TO THE WISHES AND INTERESTS OF THE WORKER CONCERNED, AN APPLICATION FOR AND THE DETERMINATION OF A PENSION IN THE OTHER MEMBER STATES .

P.388

THE REQUEST FOR AN INTERPRETATION SEEMS TO HAVE BEEN FORMULATED BY THE CONSEIL D' ETAT ON THE ASSUMPTION THAT A MIGRANT WORKER, WHO HAS COMPLETED INSURANCE PERIODS IN VARIOUS MEMBER STATES, DOES NOT HAVE TO RESORT TO AGGREGATION IN ANY OF THESE STATES IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT .

IT IS HOWEVER NECESSARY NOT TO RULE OUT THE ASSUMPTION MADE BY THE COMMISSION IN ITS STATEMENT OF CASE THAT IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT IN FRANCE MR COUTURE HAD TO AGGREGATE THE FRENCH AND BELGIAN INSURANCE PERIODS IN ORDER TO COMPLY WITH ARTICLE 335 OF THE FRENCH SOCIAL SECURITY CODE .

NEITHER REGULATION NO 3 NOR REGULATION NO 4 PROVIDES FOR AN OPTION WITHIN THE MEANING SUGGESTED BY THE CONSEIL D' ETAT IN ITS FIRST QUESTION .

ALTHOUGH ARTICLES 14 AND 14A OF REGULATION NO 3 AND ARTICLES 12, 12A AND 13 OF REGULATION NO 4 PROVIDE FOR SUCH AN OPTION, IT IS ONLY GRANTED TO A LIMITED NUMBER OF MIGRANT WORKERS, FOR EXAMPLE THOSE EMPLOYED AT DIFFERENT POSTS OR IN THE PERSONAL SERVICE OF OFFICIALS OF SUCH POSTS AND THE AUXILIARY STAFF OF THE EUROPEAN COMMUNITIES . MOREOVER, THE OPTION IS RESTRICTED TO A CHOICE BETWEEN THE LEGISLATION OF THE COUNTRY OF EMPLOYMENT AND THAT OF THE COUNTRY OF ORIGIN . THE APPLICATION OF THE SYSTEM ESTABLISHED BY ARTICLES 27 AND 28 OF REGULATION NO 3 DEPENDS, THEREFORE, ONLY ON THE OBJECTIVE CONDITIONS AND CIRCUMSTANCES IN WHICH THE MIGRANT WORKER CONCERNED IS SITUATED .

ARTICLE 51 OF THE TREATY IS ESSENTIALLY INTENDED TO COVER CASES IN WHICH THE LEGISLATION OF A MEMBER STATE DOES NOT BY ITSELF CONFER ON THE PERSON CONCERNED A RIGHT TO BENEFIT BECAUSE HE HAS NOT COMPLETED A SUFFICIENT NUMBER OF INSURANCE PERIODS UNDER THAT LEGISLATION . TO THIS INTENT IT PROVIDES, FOR THE BENEFIT OF A MIGRANT WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATIVELY SUBJECT TO THE LEGISLATION OF SEVERAL MEMBER STATES, THAT THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED . IT FOLLOWS FROM THE FOREGOING THAT THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 ONLY APPLY IN CERTAIN SPECIFIC CASES AND THAT THEY HAVE NO APPLICATION IN THE CASE OF A MEMBER STATE IN WHICH THE OBJECTIVE SOUGHT BY ARTICLE 51 IS ACHIEVED BY VIRTUE OF NATIONAL LEGISLATION ALONE . AT LEAST UNDER THOSE SYSTEMS BASED ON INSURANCE PERIODS, UNDER WHICH THE AMOUNT OF A RETIREMENT PENSION VARIES IN PROPORTION SOLELY TO THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED, THESE PROVISIONS DO NOT APPLY TO A MIGRANT WORKER WHO DOES NOT HAVE TO RESORT TO THE AGGREGATION OF INSURANCE PERIODS IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT IN ANY OF THE MEMBER STATES IN WHICH HE HAS COMPLETED INSURANCE PERIODS .

P.389

THE FACT THAT A MIGRANT WORKER HAS TO AGGREGATE INSURANCE PERIODS IN A MEMBER STATE IN ORDER TO BE GRANTED IN THAT STATE THE OLD-AGE PENSION WHICH HE CLAIMS DOES NOT IMPLY THAT OLD-AGE PENSIONS IN OTHER MEMBER STATES MUST BE DETERMINED SIMULTANEOUSLY, SINCE THE DUTY TO DETERMINE PENSIONS SIMULTANEOUSLY IN THE OTHER MEMBER STATES IS NOT PRESCRIBED IN ANY OF THE RELEVANT PROVISIONS . SUCH A REQUIREMENT CANNOT, IN PARTICULAR, BE FOUND IN ARTICLE 30 OF REGULATION NO 4 WHICH IS MERELY A PROCEDURAL PROVISION FOR THE PURPOSE OF SIMPLIFYING ADMINISTRATION WHERE PENSIONS ARE DETERMINED SIMULTANEOUSLY, BUT WHICH CANNOT STIPULATE SIMULTANEOUS DETERMINATION .

FURTHER THERE IS THE DANGER THAT SUCH AN OBLIGATION WOULD DEPRIVE THE CLAIMANT EITHER OF THE RIGHT TO A PENSION ACQUIRED IN ONE MEMBER STATE WHILE HE WAS WAITING FOR THE DETERMINATION OF ANOTHER PENSION IN ANOTHER MEMBER STATE, OR WOULD PREVENT HIM FROM TAKING ADVANTAGE OF THE RIGHT, ACKNOWLEDGED BY THE LEGISLATION OF THE LATTER STATE, TO DEFER SUCH DETERMINATION .

THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 IN NO WAY PROVIDE FOR THE LOSS OF OPTIONS GRANTED UNDER NATIONAL LEGISLATIVE SYSTEMS . IN FACT THESE PROVISIONS, WHICH IN CONFORMITY WITH THE OBJECTIVES OF ARTICLE 51 OF THE TREATY, AIM AT SECURING FOR A MIGRANT WORKER THE ADVANTAGES CORRESPONDING TO HIS VARIOUS PERIODS OF WORK MAY NOT, IN THE ABSENCE OF AN EXPRESS EXCEPTION IN CONFORMITY WITH THE OBJECTIVES OF THE TREATY, BE APPLIED SO AS TO DEPRIVE HIM OF THE BENEFIT OF PART OF THE LEGISLATION OF A MEMBER STATE .

THEREFORE, IF AN APPLICATION FOR A PENSION MADE IN ONE MEMBER STATE MAY BE TREATED AS AN APPLICATION FOR A PENSION IN OTHER STATES, THE MIGRANT WORKER CONCERNED MUST IN ANY CASE BE GIVEN THE OPPORTUNITY TO MAKE HIS DECISION IN FULL KNOWLEDGE OF THE FACTS .

IN ANSWERING THE FOURTH QUESTION REFERRED BY THE CONSEIL D' ETAT IT MUST BE HELD THAT IN THOSE CASES IN WHICH THE MIGRANT WORKER DECIDES NOT TO MAKE SIMULTANEOUS PENSION APPLICATIONS HE MUST COMPLY WITH THE PROCEDURE AND TIME - LIMITS LAID DOWN BY THE INTERNAL LEGISLATION OF EACH MEMBER STATE CONCERNED .

THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND BY THE COMMISSION OF THE EEC WHICH HAVE SUBMITTED THEIR 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 QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY JUDGMENT OF 24 MARCH 1967 OF THE BELGIAN CONSEIL D' ETAT, ADMINISTRATIVE LAW DIVISION, 6TH CHAMBER, HEREBY RULES :

1 . THE APPLICATION TO A MIGRANT WORKER OF THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 DOES NOT DEPEND UPON THE FREE CHOICE OF THE PERSON CONCERNED BUT UPON HIS OBJECTIVE SITUATION;

2 . AT LEAST IN THOSE SYSTEMS BASED ON INSURANCE PERIODS UNDER WHICH THE AMOUNT OF THE RETIREMENT PENSION VARIES IN PROPORTION SOLELY TO THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED, ARTICLES 27 AND 28 OF REGULATION NO 3 DO NOT APPLY TO A MIGRANT WORKER WHO, IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT, DOES NOT HAVE TO RESORT TO AGGREGATION IN ANY OF THE MEMBER STATES IN WHICH HE HAS COMPLETED INSURANCE PERIODS;

3 . REGULATIONS NOS 3 AND 4 AND IN PARTICULAR ARTICLES 27 AND 28 OF REGULATION NO 3 TOGETHER WITH ARTICLES 30 TO 36 AND 83 OF REGULATION NO 4 DO NOT IMPLY THAT THERE IS AN OBLIGATION TO DETERMINE SIMULTANEOUSLY AND ON THE BASIS OF THE SAME REFERENCE DATE AN OLD-AGE PENSION ACQUIRED IN ONE MEMBER STATE UNDER ARTICLE 27 AND ANOTHER OLD-AGE PENSION WHICH HAS NOT YET BEEN ACQUIRED IN ANOTHER MEMBER STATE OR WHICH HAS BEEN ACQUIRED IN ANOTHER MEMBER STATE WHOSE LEGISLATION PERMITS ITS PAYMENT TO BE DEFERRED AT THE REQUEST OF THE PERSON CONCERNED;

4 . CLAIMING A PENSION FROM A SOCIAL SECURITY INSTITUTION OF ONE MEMBER STATE DOES NOT IMPLY A WAIVER OF THE RIGHTS OF ELECTION WHICH THE LEGISLATIVE SYSTEMS OF OTHER MEMBER STATES GRANT TO THE WORKERS CONCERNED . THE NATIONAL SOCIAL SECURITY AUTHORITIES ARE COMPETENT TO DECIDE WHEN SUCH ELECTION MUST BE MADE;

5 . THE DECISION AS TO COSTS IN THESE PROCEEDINGS IS A MATTER FOR THE BELGIAN CONSEIL D' ETAT .