61967J0022

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1 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - BENEFIT - AGGREGATION AND CALCULATION PRO RATA - CALCULATION OF A PENSION THE RIGHT TO WHICH IS CONFERRED IN SEVERAL MEMBER STATES BUT WHICH IS PAID IN ONE STATE ONLY

( REGULATION NO 3, ARTICLE 28(1)(B ) AND ( F ))

1 . ARTICLE 51 IS INTENDED TO CONFER ON A MIGRANT WORKER THE BENEFIT ARISING FROM THE COMMUNITY REGULATIONS WITHOUT HOWEVER DIMINISHING THE RIGHTS WHICH HE WOULD HAVE HAD IF THOSE REGULATIONS HAD NOT BEEN APPLIED . THIS OBJECTIVE WOULD BE DISREGARDED IF THE WORKER WERE OBLIGED, IN ORDER TO AVAIL HIMSELF OF THE FREEDOM OF MOVEMENT WHICH IS GUARANTEED TO HIM, AS A RESULT OF THE ENTRY INTO FORCE OF THE COMMUNITY REGULATIONS, TO SUFFER THE LOSS OF RIGHTS ALREADY ACQUIRED IN ONE OF THE MEMBER STATES UNDER THAT STATE'S OWN LEGISLATION .

2 . ARTICLE 28(1)(F ) OF REGULATION NO 3 OF THE EEC APPLIES BOTH TO CASES IN WHICH THE PERSON CONCERNED DOES NOT SATISFY THE CONDITIONS REQUIRED FOR THE PAYMENT OF BENEFIT AND TO CASES IN WHICH HE DOES NOT SATISFY THE CONDITIONS FOR CONFERMENT OF THE RIGHT TO SUCH BENEFIT . A MIGRANT WORKER WHOSE RIGHTS TO AN OLD-AGE PENSION HAVE BEEN CALCULATED IN ACCORDANCE WITH THE LEGISLATION OF TWO MEMBER STATES UNDER THE PROVISIONS OF ARTICLE 28(1)(A ) AND ( B ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS BUT TO WHOM PAYMENT OF THE FRACTION OF THE PENSION PAYABLE BY ONE OF THEM HAS BEEN SUSPENDED, IS ENTITLED TO OBTAIN FROM THE SOCIAL SECURITY INSTITUTION OF THE OTHER MEMBER STATE AN AMOUNT OF PENSION CALCULATED SOLELY IN ACCORDANCE WITH THE LEGISLATION OF THAT STATE AND TAKING ACCOUNT OF THE INSURANCE PERIODS COMPLETED UNDER THAT LEGISLATION .

IN CASE 22/67

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SECOND CIVIL CHAMBER OF THE FRENCH COUR DE CASSATION FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

CAISSE REGIONALE DE SECURITE SOCIALE DU NORD-EST ( REGIONAL SOCIAL SECURITY FUND FOR NORTH-EAST FRANCE ) WHOSE OFFICES ARE IN NANCY ( MEURTHE-ET-MOSELLE ),

AND

ROBERT GOFFART, RESIDING AT PONT-A-MOUSSON ( FRANCE ),

ON THE INTERPRETATION OF THE PROVISIONS OF ARTICLE 28(1)(B ) AND ( F ) OF CHAPTER 3 OF HEAD III OF REGULATION NO 3 OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

P.325

BY JUDGMENT OF 27 APRIL 1967, RECEIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 15 JUNE 1967, THE SECOND CIVIL CHAMBER OF THE FRENCH COUR DE CASSATION REQUESTED THE COURT, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION TO BE GIVEN TO THE PROVISIONS OF ARTICLE 28(1)(B ) AND ( F ) OF CHAPTER 3 OF HEAD III OF REGULATION NO 3 OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .

P.326

THE FRENCH COUR DE CASSATION REQUESTED THE COURT TO RULE WHETHER A MIGRANT WORKER WHOSE RIGHTS TO AN OLD-AGE PENSION HAVE BEEN CALCULATED IN ACCORDANCE WITH THE LEGISLATION OF TWO MEMBER STATES UNDER THE PROVISIONS OF ARTICLE 28(1)(A ) AND ( B ) OF THE ABOVE-MENTIONED REGULATION NO 3, ' BUT TO WHOM PAYMENT OF THE FRACTION OF THE PENSION PAYABLE BY ONE OF THEM IS SUSPENDED, IS ENTITLED TO OBTAIN FROM THE SOCIAL SECURITY INSTITUTION OF THE OTHER STATE AN AMOUNT OF PENSION CALCULATED SOLELY IN ACCORDANCE WITH THE LEGISLATION OF THAT STATE AND TAKING ACCOUNT OF THE INSURANCE PERIODS COMPLETED UNDER ITS RULES '.

THE QUESTION PUT TO THE COURT TURNS ESSENTIALLY ON THE INTERPRETATION TO BE GIVEN TO ARTICLE 28(1)(F ) OF REGULATION NO 3 OF THE EEC TAKEN IN CONJUNCTION WITH PARAGRAPH ( 1)(A ) OF THE SAME ARTICLE .

MORE PRECISELY, IT BEARS ON THE ACTUAL MEANING, WITHIN THE SYSTEM SET UP BY THOSE PROVISIONS, OF THE PHRASE : ' IF THE PERSON CONCERNED DOES NOT ... SATISFY THE CONDITIONS REQUIRED BY ALL THE LEGISLATIVE SYSTEMS APPLICABLE TO HIM ', APPEARING IN THE ABOVE-MENTIONED ARTICLE 28(1)(F ).

IN ITS OBSERVATIONS THE CAISSE REGIONALE DE SECURITE SOCIALE DU NORD-EST HAS EXPRESSED THE VIEW THAT THE WORDS ' CONDITIONS REQUIRED ' COVER ONLY THE CONDITIONS FOR CONFERRING THE RIGHT TO BENEFITS, SO THAT ANY SUSPENSION OF THE PAYMENT OF THE BENEFITS IN ONE OF THE MEMBER STATES CONCERNED COULD NOT BY ITSELF JUSTIFY THE APPLICATION OF PARAGRAPH ( 1)(F ) AND THUS INVOLVE DEROGATION FROM THE PROVISIONS OF ARTICLE 28(1)(B ) REGARDING PRO RATA CALCULATION .

THE COMMISSION OF THE EEC ON THE OTHER HAND HAS MAINTAINED THAT THE WORDS ' CONDITIONS REQUIRED ' RELATE TO THE CONDITIONS FOR CONFERRING THE RIGHT AS WELL AS THE CONDITIONS REGARDING PAYMENT OF THE BENEFITS .

THE WORDING OF ARTICLE 28(1)(F ) DOES NOT DISTINGUISH BETWEEN CONFERMENT OF THE RIGHT AND PAYMENT OF THE BENEFITS, BUT MERELY EMPLOYS THE GENERAL CONCEPT OF ' CONDITIONS REQUIRED '.

IN THE ABSENCE OF ANY INDICATIONS IN THE TEXT, THE ACTUAL MEANING OF ARTICLE 28(1)(F ), AS WELL AS THAT OF REGULATION NO 3 CONSIDERED AS A WHOLE, MUST BE SOUGHT IN THE LIGHT OF THE OBJECTIVES SET FORTH IN ARTICLES 48 TO 51 OF THE TREATY .

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ARTICLE 51 OF THE TREATY ESSENTIALLY REFERS TO A CASE IN WHICH THE LEGISLATION OF A MEMBER STATE DOES NOT BY ITSELF CONFER THE RIGHT TO BENEFIT ON THE PERSON CONCERNED OWING TO AN INSUFFICIENT NUMBER OF PERIODS COMPLETED UNDER ITS LEGISLATION .

TO THAT END IT PROVIDES, ON BEHALF OF THE MIGRANT WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATIVELY SUBJECT TO THE LEGISLATION OF SEVERAL MEMBER STATES, FOR THE AGGREGATION OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THOSE STATES .

THE PRO RATA CALCULATION PROVIDED FOR IN ARTICLE 28(1 ) OF REGULATION NO 3 PRESUMES WITHOUT EXCEPTION A PRIOR AGGREGATION .

AGGREGATION AND PRO RATA CALCULATION ARE THUS POINTLESS IN A CASE WHERE THE PERSON CONCERNED MAY CLAIM BENEFIT UNDER THE LEGISLATION OF ONE MEMBER STATE ON THE BASIS OF THE INSURANCE PERIODS COMPLETED UNDER ITS LEGISLATION ALONE .

IT IS CLEAR FROM THE FOREGOING THAT ARTICLE 51 IS INTENDED TO CONFER ON THE MIGRANT WORKER THE BENEFIT ARISING FROM COMMUNITY REGULATIONS WITHOUT HOWEVER DIMINISHING THE RIGHTS WHICH HE WOULD HAVE HAD IF THOSE REGULATIONS HAD NOT BEEN APPLIED .

THIS OBJECTIVE WOULD BE DISREGARDED IF THE WORKER WERE OBLIGED, IN ORDER TO AVAIL HIMSELF OF THE FREEDOM OF MOVEMENT WHICH IS GUARANTEED TO HIM, AS A RESULT OF THE ENTRY INTO FORCE OF THE COMMUNITY REGULATIONS, TO SUFFER THE LOSS OF RIGHTS ALREADY ACQUIRED IN ONE OF THE MEMBER STATES UNDER THE STATE'S OWN LEGISLATION .

ARTICLE 28(1)(F ) OF REGULATION NO 3 OF THE EEC MUST THUS BE INTERPRETED AS APPLYING TO CASES IN WHICH THE PERSON CONCERNED DOES NOT SATISFY THE CONDITIONS REQUIRED FOR THE PAYMENT OF BENEFIT .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC, WHICH SUBMITTED OBSERVATIONS, 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 FRENCH COUR DE CASSATION THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE SECOND CIVIL CHAMBER OF THE FRENCH COUR DE CASSATION BY JUDGMENT OF THAT COURT OF 27 APRIL 1967, HEREBY RULES :

1 . A MIGRANT WORKER WHOSE RIGHTS TO AN OLD-AGE PENSION HAVE BEEN CALCULATED IN ACCORDANCE WITH THE LEGISLATION OF TWO MEMBER STATES UNDER THE PROVISIONS OF ARTICLE 28(1)(A ) AND ( B ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS BUT TO WHOM PAYMENT OF THE FRACTION OF THE PENSION PAYABLE BY ONE OF THEM IS SUSPENDED, IS ENTITLED TO OBTAIN FROM THE SOCIAL SECURITY INSTITUTION OF THE OTHER MEMBER STATE AN AMOUNT OF PENSION CALCULATED SOLELY IN ACCORDANCE WITH THE LEGISLATION OF THAT STATE AND TAKING ACCOUNT OF THE INSURANCE PERIODS COMPLETED UNDER ITS LEGISLATION;

2 . THE DECISION ON COSTS IN THE PRESENT PROCEEDINGS IS A MATTER FOR THE SECOND CIVIL CHAMBER OF THE FRENCH COUR DE CASSATION .