61968J0028

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1 . PROCEDURE - QUESTIONS REFERRED FOR PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH PENSIONS - AGGREGATION - APPLICATION OF LEGISLATION MENTIONED IN ANNEX B TO REGULATION NO 3 INCLUDING NON-CONTRIBUTORY SCHEMES

( REGULATION NO 3, ARTICLE 27, ANNEX B )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS - CONVENTIONS REFERRED TO IN ARTICLE 6(2)(E ) AND IN ANNEX D - SCOPE OF REGULATION NO 3 - INTERPRETATION OF THE SAID CONVENTIONS

1 . THE CONSIDERATIONS WHICH MAY HAVE LED THE NATIONAL COURT TO CHOOSE THE QUESTIONS REFERRED TO THE COURT FOR A PRELIMINARY RULING AS WELL AS THE RELEVANCE WHICH IT ATTACHES TO THEM IN THE PROCEEDINGS PENDING BEFORE IT CANNOT BE EXAMINED BY THE COURT .

ARTICLE 177, WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN THE NATIONAL COURTS OR TRIBUNALS AND THE COURT OF JUSTICE, DOES NOT ENABLE THE LATTER TO RULE ON THE APPLICATION OF THE PROVISIONS OF COMMUNITY LAW .

2 . THE SYSTEM OF AGGREGATION PROVIDED FOR BY ARTICLE 27(1 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ALSO APPLIES TO THE LEGISLATION MENTIONED IN ANNEX B, WHETHER IT ESTABLISHES A CONTRIBUTORY OR NON-CONTRIBUTORY SCHEME .

3 . IT IS CLEAR FROM ARTICLE 6(2)(E ) THAT REGULATION NO 3 IS NOT INTENDED TO DETRACT FROM THE PROVISIONS OF THE CONVENTIONS CONCLUDED BEFORE IT ENTERED INTO FORCE . THE REGULATION CONTINUES TO APPLY TO THE EXTENT TO WHICH THESE CONVENTIONS DO NOT IMPEDE ITS APPLICATION .

IT IS FOR THE NATIONAL COURT TO DECIDE WHAT EFFECT THE CONVENTIONS LISTED IN ANNEX D HAVE .

IN CASE 28/68

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION OF FRANCE ( CHAMBRE SOCIALE ) FOR A PRELIMINARY RULING INT HE ACTION PENDING BEFORE THAT COURT BETWEEN

CAISSE REGIONALE DE SECURITE SOCIALE DU NORD DE LA FRANCE

AND

ACHILLE TORREKENS, RESIDING AT 42 RUE DES MARINS, BRAY-DUNES ( NORD ),

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 25 SEPTEMBER 1958,

1 BY A JUDGMENT OF 24 OCTOBER 1968 WHICH REACHED THE COURT REGISTRY ON 23 NOVEMBER THE FRENCH COUR DE CASSATION ( CHAMBRE SOCIALE ) MADE A REFERENCE TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF VARIOUS PROVISIONS OF REGULATION NO 3 .

2 IT IS CLEAR FROM THE GROUNDS OF THE JUDGMENT THAT THE REQUEST FOR INTERPRETATION DEALS ESSENTIALLY WITH THE QUESTION WHETHER ARTICLE 27 OF THE SAID REGULATION ALSO APPLIES TO NON-CONTRIBUTORY SOCIAL SECURITY SCHEMES AND WHETHER THE APPLICATION OF THIS REGULATION COULD BE AFFECTED BY THE CONVENTIONS REFERRED TO IN ARTICLE 6(2)(E ) THEREOF .

THE JURISDICTION OF THE COURT

3 THE GOVERNMENT OF THE FRENCH REPUBLIC POINTS OUT THAT THE FRANCO-BELGIAN PROTOCOL OF 17 JANUARY 1948 RELATING TO THE ALLOWANCE TO AGED WAGE-EARNERS IS THE ONLY TEXT APPLICABLE TO THE CASE .

4 IT STATES THAT THIS FOLLOWS FROM ARTICLE 6(2)(E ) OF REGULATION NO 3, A PROVISION WHICH REFERS TO ANNEX D TO THIS REGULATION IN WHICH THE SAID PROTOCOL IS MENTIONED IN PARAGRAPH 4 UNDER THE HEADING " BELGIUM-FRANCE ".

5 IT ARGUES THAT IT IS THEREFORE UNNECESSARY TO INTERPRET ANY OTHER PROVISION OF REGULATION NO 3 .

6 IT IS, HOWEVER, CLEAR FROM THE VERY WORDING OF THE JUDGMENT THAT THE COURT HAS NOT BEEN ASKED TO INTERPRET THE FRANCO-BELGIAN PROTOCOL OF 17 JANUARY 1948 WHICH, MOREOVER, IT WOULD HAVE NO POWER TO DO UNDER ARTICLE 177 .

7 FURTHERMORE, THE CONSIDERATIONS WHICH MAY HAVE LED THE NATIONAL COURT TO CHOOSE THE QUESTIONS PUT AS WELL AS THE RELEVANCE WHICH IT ATTACHES TO THEM IN THE PROCEEDINGS PENDING BEFORE IT CANNOT BE EXAMINED BY THE COURT .

8 FINALLY ARTICLE 177, WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS OR TRIBUNALS AND THE COURT OF JUSTICE DOES NOT ENABLE THE LATTER TO RULE ON THE APPLICATION OF THE PROVISIONS OF COMMUNITY LAW .

THE SUBSTANCE OF THE CASE

9 THE REQUEST FOR INTERPRETATION IS DIRECTED FIRST TO THE QUESTION WHETHER ARTICLE 27 OF REGULATION NO 3 ALSO APPLIES TO NON-CONTRIBUTORY SOCIAL SECURITY SCHEMES .

10 REGULATION NO 3, MADE PURSUANT TO ARTICLE 51 OF THE TREATY, MUST BE INTERPRETED IN THE CONTEXT AND WITHIN THE BOUNDS OF THIS ARTICLE AND HAVING REGARD TO THE FUNDAMENTAL PRINCIPLES WHICH IT LAYS DOWN .

11 PARAGRAPH ( A ) OF THE SAID ARTICLE 51, WHICH IS REPEATED IN THE FOURTH RECITAL OF THE PREAMBLE TO THE REGULATION AND IN THE LIGHT OF WHICH THIS REGULATION MUST BE INTERPRETED, PROVIDES THAT ARRANGEMENTS SHALL BE MADE IN THE FIELD OF SOCIAL SECURITY 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 .

12 UNDER ARTICLE 2(2 ) OF REGULATION NO 3 THE LATTER APPLIES TO " ALL GENERAL AND SPECIAL SOCIAL SECURITY SCHEMES, WHETHER CONTRIBUTORY OR NON-CONTRIBUTORY ".

13 WITHOUT MAKING ANY FURTHER DISTINCTION ARTICLE 3 STATES THAT ANNEX B " SPECIFIES, FOR EACH MEMBER STATE, THE SOCIAL SECURITY LEGISLATION ... TO WHICH THE REGULATION APPLIES ".

14 ANNEX B, ENTITLED " LEGISLATION TO WHICH THE REGULATION APPLIES " MENTIONS IN LETTER ( G ) OF THE HEADING " FRANCE " THE LEGISLATION RELATING TO " ALLOWANCES TO AGED WAGE-EARNERS ".

15 THE EFFECT OF THE DEFINITIONS IN ARTICLE 1(P ) OF THE REGULATION CANNOT BE TO EXCLUDE FROM THE FIELD OF APPLICATION OF THE REGULATION NON-CONTRIBUTORY SOCIAL SECURITY SCHEMES .

16 THIS PROVISION MUST IN FACT BE READ TOGETHER WITH SUBPARAGRAPH ( R ) OF THE SAME ARTICLE .

17 AS THIS SUBPARAGRAPH GIVES A WIDE INTERPRETATION OF " ASSIMILATED PERIODS " THERE IS NO REASON WHY THE PERIODS REFERRED TO IN SUCH A NON-CONTRIBUTORY SOCIAL SECURITY SCHEME SHOULD NOT BE REGARDED AS ASSIMILATED PERIODS WITHIN THE MEANING OF ARTICLE 27 .

18 THE SYSTEM OF AGGREGATION PROVIDED FOR IN ARTICLE 27(1 ) OF REGULATION NO 3 THEREFORE ALSO APPLIES TO THE LEGISLATION MENTIONED IN ANNEX D WHETHER IT ESTABLISHES CONTRIBUTORY OR NON-CONTRIBUTORY SCHEMES .

19 ARTICLE 6(2)(E ) PROVIDES, " THE PROVISIONS OF THIS REGULATION NOTWITHSTANDING ", THAT SUCH OTHER PROVISIONS OF SOCIAL SECURITY CONVENTIONS AS ARE LISTED IN ANNEX D SHALL CONTINUE TO APPLY .

20 THE SAID ARTICLE MAKES IT CLEAR THAT THE REGULATION IS NOT INTENDED TO DETRACT FROM THE PROVISIONS OF THESE CONVENTIONS WHICH WERE CONCLUDED BEFORE IT ENTERED INTO FORCE .

21 THE REGULATION THEREFORE CONTINUES TO APPLY TO THE EXTENT TO WHICH THESE CONVENTIONS DO NOT IMPEDE ITS APPLICATION .

22 IT IS FOR THE NATIONAL COURT TO DECIDE WHAT EFFECT THE CONVENTIONS LISTED IN ANNEX D HAVE, AFTER TAKING INTO ACCOUNT THE IMPACT OF REGULATION NO 3 AND IN PARTICULAR ANNEX B THEREOF ON NATIONAL REGULATIONS .

23 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC AND BY THE COMMISSION OF THE EEC WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE FRENCH COUR DE CASSATION, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT FOR A PRELIMINARY RULING BY JUDGMENT OF 24 OCTOBER 1968 OF THE FRENCH COUR DE CASSATION ( CHAMBRE SOCIALE ), HEREBY RULES :

THE SYSTEM OF AGGREGATION PROVIDED FOR BY ARTICLE 27(1 ) OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ALSO APPLIES TO THE LEGISLATION MENTIONED IN ANNEX B, WHETHER IT ESTABLISHES A CONTRIBUTORY OR NON-CONTRIBUTORY SCHEME . THE SAID REGULATION CONTINUES TO APPLY TO THE EXTENT TO WHICH THE CONVENTIONS MENTIONED IN ANNEX D DO NOT IMPEDE ITS APPLICATION .