61975J0050

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - RIGHTS OF PERSONS CONCERNED - REDUCTIONS - PROHIBITION - LIMITATION CONSTITUTING THE COUNTERBALANCE TO COMMUNITY ADVANTAGES - PERMISSIBILITY

( EEC TREATY, ARTICLE 48 AND ARTICLE 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - MORE THAN ONE LEGISLATIVE SYSTEM - APPLICATION - ARTICLE 12 OF REGULATION NO 3 - AIM - BENEFITS DUE UNDER ONE LEGISLATIVE SYSTEM - REDUCTION - IMPERMISSIBLE

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH INSURANCE - RIGHT ACQUIRED BY VIRTUE OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE - REDUCTION BY WAY OF AGGREGATION AND APPORTIONMENT - PROHIBITION

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 27 AND ARTICLE 28 )

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH INSURANCE - INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF SEVERAL MEMBER STATES - OVERLAPPING - CONCEPT

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 27 )

1 . IT FOLLOWS FROM THE PURPOSE AND FROM THE FRAMEWORK OF ARTICLES 48 AND 51 OF THE TREATY THAT LIMITATIONS CAN BE IMPOSED ON WORKERS ONLY AS A COUNTERBALANCE TO THE ADVANTAGES WHICH THEY DERIVE FROM COMMUNITY REGULATIONS .

ARTICLE 51 OF THE EEC TREATY AND REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1968 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, ESPECIALLY ARTICLES 12, 27 AND 28, MUST THEREFORE BE INTERPRETED AS MEANING THAT THEY DO NOT AUTHORIZE A NATIONAL INSURANCE INSTITUTION TO REDUCE THE BENEFITS WHICH ARE DUE TO A WORKER OR TO THOSE ENTITLED UNDER HIM BY VIRTUE OF NATIONAL LEGISLATION ALONE AND WITHOUT RECOURSE TO THE PROCEDURE OF AGGREGATION .

2 . THE PURPOSE OF ARTICLE 12 OF REGULATION NO 3 IS ON THE ONE HAND TO AVOID ANY PLURALITY OR PURPOSELESS OVERLAPPING OF CONTRIBUTIONS AND LIABILITIES WHICH WOULD RESULT FROM THE SIMULTANEOUS OR ALTERNATE APPLICATION OF SEVERAL LEGISLATIVE SYSTEMS AND, MOREOVER, PREVENTING THOSE CONCERNED, IN THE ABSENCE OF LEGISLATION APPLYING TO THEM, FROM REMAINING WITHOUT PROTECTION IN THE MATTER OF SOCIAL SECURITY .

IT THEREFORE DOES NOT AUTHORIZE A NATIONAL INSURANCE ORGANIZATION EITHER EXPRESSLY OR BY IMPLICATION TO REDUCE THE BENEFITS WHICH ARE DUE TO A WORKER OR THOSE ENTITLED UNDER HIM UNDER NATIONAL LEGISLATION ALONE .

3 . THE AGGREGATION AND APPORTIONMENT OF INSURANCE PERIODS COMPLETED WITHIN THE MEANING OF ARTICLES 27 AND 28 OF REGULATION NO 3 DO NOT APPLY WHEN THE LEGISLATION OF A MEMBER STATE ENTITLES THE PERSON CONCERNED TO A BENEFIT .

4 . THERE IS NO DUPLICATION OF INSURANCE PERIODS WITHIN THE MEANING OF ARTICLE 27 OF REGULATION NO 3 AND, SIMILARLY, THERE IS NO UNJUSTIFIED CUMULATION OF PENSIONS IF A SPECIAL INCREASE PROVIDED FOR BY THE LAW OF ONE OF THE STATES FOR THE BENEFIT OF THE SURVIVORS OF AN INSURED PERSON IS AWARDED OR CALCULATED, NOT IN RELATION TO AN INSURANCE PERIOD, WHETHER ACTUAL OR FICTITIOUS, BUT FOR THE DURATION OF A CERTAIN PERIOD WHICH BEARS NO DIRECT RELATION TO THE INSURANCE PERIOD COMPLETED BY THE DECEASED .

IN CASE 50/75

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR SUPERIEURE DE JUSTICE DU LUXEMBOURG SITTING AS A COUR DE CASSATION FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

CAISSE DE PENSION DES EMPLOYES PRIVES, WHOSE REGISTERED OFFICE IS IN LUXEMBOURG

AND

HELGA MASSONET, WIDOW OF BERNARD WEBER, RESIDING AT COLMAR-BERG ( LUXEMBOURG )

ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ 30 OF 16 . 12 . 1958, P . 561 ), AND ESPECIALLY ARTICLES 12, 27 AND 28,

1 BY A JUDGMENT OF 15 MAY 1975, RECEIVED AT THE COURT ON THE FOLLOWING 5 JUNE, THE COUR SUPERIEURE DE JUSTICE DU LUXEMBOURG, SITTING AS A COUR DE CASSATION, RAISED THREE QUESTIONS, UNDER ARTICLE 177 OF THE EEC TREATY, CONCERNING THE INTERPRETATION OF ARTICLE 51 OF THE TREATY AND OF ARTICLES 12, 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( NO 30 OF 16 . 12 . 1958, P . 561 ).

2 THESE QUESTIONS ARE RAISED WITHIN THE CONTEXT OF PROCEEDINGS CONCERNING THE CALCULATION OF THE BENEFITS BY WAY OF A SURVIVOR'S PENSION OF THE WIDOW OF A LUXEMBOURG CITIZEN WHO, AFTER WORKING FIRST IN LUXEMBOURG AND THEN UNTIL THE TIME OF HIS DEATH IN THE FEDERAL REPUBLIC OF GERMANY, HAD COMPLETED 67 INSURANCE MONTHS IN THE FIRST STATE AND 13 IN THE SECOND .

3 THE GERMAN INSURANCE INSTITUTION, BECAUSE OF THE FACT THAT THE WIDOW WAS BRINGING UP CHILDREN, AWARDED HER AN INCREASED PENSION CALCULATED ON THE BASIS, NOT ONLY OF THE INSURANCE MONTHS ACTUALLY COMPLETED BY THE DECEASED, BUT ALSO OF THE NUMBER OF MONTHS REMAINING BETWEEN THE DATE OF HIS DEATH AND THE DATE ON WHICH HE WOULD HAVE ATTAINED THE AGE OF 55 YEARS .

4 THE AMOUNT WHICH THE GERMAN INSTITUTION WAS REQUIRED TO PAY WAS THEN FIXED IN PROPORTION TO THE PERIOD ACTUALLY COMPLETED UNDER GERMAN LEGISLATION IN RELATION TO THE TOTAL DURATION OF THE PERIODS COMPLETED UNDER THE LEGISLATION OF THE TWO STATES CONCERNED .

5 THE LUXEMBOURG INSTITUTION, ALTHOUGH AWARDING THE WIDOW A SURVIVOR'S PENSION, REFUSED TO GRANT WITH IT THE SPECIAL INCREASE WHICH THE LAW ALLOWS IN FAVOUR OF A WIDOW BRINGING UP A CHILD WHERE THE HUSBAND DIES BEFORE THE AGE OF 55 YEARS AND WHICH CONSISTS OF A FIXED SUM OF MONEY PAYABLE FOR EACH MONTH WHICH HAS STILL TO RUN UNTIL THE TIME WHEN THE DECEASED WOULD HAVE ATTAINED THE AGE OF 55 YEARS .

6 IN ORDER TO JUSTIFY THIS REFUSAL, THE LUXEMBOURG INSTITUTION RELIED BEFORE THE COUR SUPERIEURE DE JUSTICE SITTING AS A COUR DE CASSATION ON THREE SUBMISSIONS BASED ON THE ONE HAND ON ARTICLE 12 OF REGULATION NO 3 AND ON THE OTHER HAND ON ARTICLE 51 OF THE TREATY AND ARTICLES 27 AND 28 OF THE SAME REGULATION .

7 THE THREE QUESTIONS RAISED BY THE COUR SUPERIEURE DE JUSTICE ARE DIRECTED TOWARDS OBTAINING AN INTERPRETATION OF THESE PROVISIONS IN ORDER TO EVALUATE THE THREE SUBMISSIONS RELIED UPON BY THE LUXEMBOURG INSTITUTION .

8 BEFORE COMMENCING AN EXAMINATION OF EACH OF THE QUESTIONS RAISED, CERTAIN REMARKS OF A GENERAL NATURE SHOULD BE MADE .

9 IN ORDER TO DEFINE THE MEANING AND SCOPE OF REGULATION NO 3, IT MUST BE INTERPRETED IN THE LIGHT OF ARTICLES 48 TO 51 OF THE TREATY WHICH CONSTITUTE THE BASIS, THE FRAMEWORK AND THE BOUNDS OF THE SOCIAL SECURITY REGULATIONS .

10 SINCE THOSE ARTICLES ARE INTENDED TO ENSURE FREEDOM OF MOVEMENT FOR WORKERS BY CONFERRING ON THEM CERTAIN RIGHTS, TO REDUCE THE RIGHTS OF WORKERS WITHOUT CONFERRING UPON THEM THE COMPENSATING BENEFITS PRESCRIBED IN THE REGULATIONS WOULD BE TO DEPART FROM THE PURPOSE AND FRAMEWORK OF THE SAID PROVISIONS .

11 IN CASES IN WHICH THE REGULATIONS CONFER ON WORKERS SOCIAL SECURITY BENEFITS WHICH THEY WOULD OTHERWISE BE UNABLE TO OBTAIN, LIMITATIONS MAY BE IMPOSED ON THEM CORRESPONDING TO THE ADVANTAGES WHICH THEY DERIVE THEREFROM .

12 IN THE ABSENCE OF SUCH A COUNTERBALANCE, SUCH LIMITATIONS CANNOT BE JUSTIFIED SINCE THEY WOULD RESULT IN PLACING THE WORKER IN A SITUATION LESS FAVOURABLE THAN THAT WHICH, WERE IT NOT FOR THE REGULATIONS, WOULD FOLLOW FROM THE APPLICATION OF NATIONAL LAW .

THE FIRST QUESTION

13 THE FIRST QUESTION ASKS WHETHER REGULATION NO 3 AND MORE ESPECIALLY ARTICLE 12 ACCORDING TO WHICH WAGE-EARNERS EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE MAY AFFECT A PROVISION OF THE INTERNAL LEGISLATION OF A MEMBER STATE PROVIDING THAT IN CASE OF SUCCESSIVE ALTERNATIVE OR CUMULATIVE AFFILIATIONS TO CONTRIBUTORY PENSIONS SCHEMES, SPECIAL INCREASES IN PENSIONS BECAUSE OF THE PREMATURE DEATH OF A PERSON AFFILIATED MUST BE PAID BY THE PENSIONS INSTITUTION TO WHICH THE INSURED PERSON WAS LAST AFFILIATED, AND, ACCORDING TO THE CIRCUMSTANCES, HAVE THE EFFECT OF FREEING THE INSTITUTION THUS DESIGNATED AT NATIONAL LEVEL BY NATIONAL LEGISLATION, FROM ITS OBLIGATION TO BEAR THE RELEVANT SPECIAL INCREASES .

14 MORE SPECIFICALLY IT IS ASKED WHAT IS THE REPLY TO BE GIVEN WHEN IN A FIRST STATE THE RIGHT TO THE INCREASE IS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE, AND WITHOUT THERE BEING ANY NEED TO HAVE RECOURSE TO THE SO-CALLED AGGREGATION PROCEDURE, WHILST IN A SECOND STATE IN WHICH THERE HAS BEEN A SUBSEQUENT AFFILIATION, THE RIGHT IS ACQUIRED ONLY THROUGH RECOURSE TO AGGREGATION .

15 THE PURPOSE OF ARTICLE 12 OF REGULATION NO 3, ACCORDING TO WHICH THE WORKER IS SUBJECT TO THE LEGISLATION OF THE STATE WHERE HE IS EMPLOYED, IS TO AVOID ANY PLURALITY OR PURPOSELESS OVERLAPPING OF CONTRIBUTIONS AND LIABILITIES WHICH WOULD RESULT FROM THE SIMULTANEOUS OR ALTERNATE APPLICATION OF SEVERAL LEGISLATIVE SYSTEMS AND, MOREOVER, PREVENTING THOSE CONCERNED, IN THE ABSENCE OF LEGISLATION APPLYING TO THEM, FROM REMAINING WITHOUT PROTECTION IN THE MATTER OF SOCIAL SECURITY .

16 THAT PROVISION, WHICH IS DESIGNED TO SETTLE CONFLICTS OF LAWS BOTH POSITIVE AND NEGATIVE, WHICH MAY ARISE IN THE FIELD OF THE APPLICATION OF THE REGULATION, DOES NOT AUTHORIZE A NATIONAL INSURANCE INSTITUTION EITHER EXPRESSLY OR BY IMPLICATION TO REDUCE THE BENEFITS WHICH ARE DUE TO A WORKER OR THOSE ENTITLED UNDER HIM UNDER NATIONAL LEGISLATION ALONE .

17 A PROVISION OF THE LEGISLATION OF A MEMBER STATE PROVIDING THAT IN CASE OF SUCCESSIVE, ALTERNATIVE OR CUMULATIVE AFFILIATIONS TO CONTRIBUTORY PENSION SCHEMES OF THIS SAME STATE A SPECIAL INCREASE ON THE GROUND OF THE PREMATURE DEATH OF A PERSON AFFILIATED TO IT MUST BE PAID BY THE PENSIONS INSTITUTION TO WHICH THE INSURED PERSON WAS LAST AFFILIATED, CAN THEREFORE GOVERN ONLY THE RELATIONSHIPS BETWEEN THE INSURANCE INSTITUTIONS OF THAT STATE .

THE SECOND AND THIRD QUESTIONS

18 THE SECOND QUESTION ASKS WHETHER ARTICLE 51 OF THE EEC TREATY AND ARTICLES 27 AND 28 OF REGULATION NO 3 PROHIBIT A WIDOW FROM BENEFITING SIMULTANEOUSLY FROM THE SPECIAL INCREASE, PAID IN A FIRST STATE WITHOUT AGGREGATION OF INSURANCE PERIODS, AND FROM ANOTHER BENEFIT AWARDED IN A SECOND STATE AFTER AGGREGATION, THE TWO ALLOWANCES BEING PAYABLE OVER THE SAME PERIOD .

19 THE THIRD QUESTION ASKS WHETHER THESE COMMUNITY PROVISIONS PROHIBIT THE WIDOW WHO IN THE SECOND STATE OBTAINS AN INCREASED PENSION CALCULATED BY AGGREGATION AND APPORTIONMENT FROM BENEFITING SIMULTANEOUSLY IN THE FIRST STATE FROM A SPECIAL INCREASE SUCH AS THAT SPECIFIED ABOVE, WITHOUT THIS LATTER INCREASE BEING APPORTIONED .

20 ARTICLE 51 OF THE TREATY AND ARTICLE 27 OF REGULATION NO 3 REFER IN ESSENCE TO THE CASE WHERE THE LEGISLATION OF A MEMBER STATE ON ITS OWN DOES NOT ENTITLE THE PERSON CONCERNED TO A BENEFIT BY REASON OF THE INSUFFICIENT TIME COMPLETED UNDER THIS LEGISLATION .

21 TO REMEDY THIS SITUATION THESE RULES PROVIDE, FOR THE BENEFIT OF THE WORKER WHO HAS BEEN SUBJECT SUCCESSIVELY OR ALTERNATELY TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, FOR THE AGGREGATION OF PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF EACH OF THESE STATES .

22 AS REGARDS OLD-AGE AND DEATH PENSIONS, ARTICLES 27 AND 28 OF REGULATION NO 3 APPLY TO THIS SITUATION, BUT NOT WHEN IN A STATE THE OBJECT SOUGHT BY ARTICLE 51 IS ATTAINED UNDER THE NATIONAL LEGISLATION ALONE .

23 THE PROVISIONS REFERRED TO CANNOT THEREFORE HAVE THE EFFECT OF DEPRIVING THOSE ENTITLED UNDER A DECEASED INSURED PERSON OF A BENEFIT TO WHICH THEY ARE ENTITLED BY VIRTUE OF THE PROVISIONS OF THE APPLICABLE NATIONAL LEGISLATION ALONE .

24 IT WAS CLAIMED IN THE COURSE OF THE PROCEEDINGS THAT THE LUXEMBOURG INSURANCE INSTITUTION COULD AVOID PAYING THE SPECIAL INCREASE BECAUSE A DUPLICATION OF INSURANCE PERIODS WAS INVOLVED .

25 ALTHOUGH, HOWEVER, IT FOLLOWS FROM ARTICLE 27 THAT INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES ARE NOT AGGREGATED TO THE EXTENT TO WHICH THE PERIODS ARE DUPLICATED, THERE IS NO DUPLICATION OF PERIODS WITHIN THE MEANING OF THAT ARTICLE IF A SPECIAL INCREASE PROVIDED FOR BY THE LAW OF ONE OF THE STATES FOR THE BENEFIT OF THE SURVIVORS OF AN INSURED PERSON IS AWARDED OR CALCULATED, NOT IN RELATION TO AN INSURANCE PERIOD, WHETHER ACTUAL OR FICTITIOUS, BUT FOR THE DURATION OF A CERTAIN PERIOD WHICH BEARS NO DIRECT RELATION TO THE INSURANCE PERIOD COMPLETED BY THE DECEASED .

26 IT IS THE SAME AS REGARDS COMMUNITY LAW IN A CASE WHERE A MEMBER STATE, AS IT IS ENTITLED TO DO EVEN IF A RIGHT TO BENEFIT ARISES WITHOUT RECOURSE TO THE PROCEDURE OF AGGREGATION, TAKES MEASURES UNDER ITS OWN LEGISLATION IN ORDER TO AVOID UNJUSTIFIED CUMULATION RESULTING FROM THE OVERLAPPING OF INSURANCE PERIODS .

27 IF THIS INTERPRETATION IS CAPABLE OF LEADING IN CERTAIN CASES OTHER THAN THAT OF A DUPLICATION OF INSURANCE PERIODS, TO AN ACCUMULATION OF PENSIONS, THIS CONSEQUENCE FOLLOWS NOT FROM THE INTERPRETATION OF COMMUNITY LAW BUT FROM THE SYSTEM AT PRESENT IN FORCE, WHICH, IN THE ABSENCE OF A COMMON SOCIAL SECURITY SCHEME, RESTS ON A SIMPLE COORDINATION OF NATIONAL LEGISLATIONS WHICH HAVE NOT YET BEEN HARMONIZED .

28 IT FOLLOWS FROM ARTICLE 11 OF REGULATION NO 3 THAT THE NATIONAL LEGISLATIONS COULD DEAL WITH THIS SITUATION IF IT IS A QUESTION OF BENEFITS ACQUIRED OUTSIDE THE APPLICATION OF ARTICLES 27 AND 28 OF THIS REGULATION .

29 THEREFORE THE THREE QUESTIONS RAISED SHOULD BE ANSWERED TO THE EFFECT THAT ARTICLE 51 OF THE EEC TREATY AND REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, ESPECIALLY ARTICLES 12, 27 AND 28 MUST BE INTERPRETED AS MEANING THAT THEY DO NOT AUTHORIZE A NATIONAL INSURANCE INSTITUTION TO REDUCE THE BENEFITS WHICH ARE DUE TO A WORKER OR THOSE ENTITLED UNDER HIM BY VIRTUE OF NATIONAL LEGISLATION ALONE AND WITHOUT RECOURSE TO THE PROCEDURE OF AGGREGATION .

30 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED ITS OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

31 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR SUPERIEURE DE JUSTICE DU LUXEMBOURG, SITTING AS A COUR DE CASSATION, BY JUDGMENT OF 15 MAY 1975, HEREBY RULES :

ARTICLE 51 OF THE EEC TREATY AND REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, ESPECIALLY ARTICLES 12, 27 AND 28, MUST BE INTERPRETED AS MEANING THAT THEY DO NOT AUTHORIZE A NATIONAL INSURANCE INSTITUTION TO REDUCE THE BENEFITS WHICH ARE DUE TO A WORKER OR TO THOSE ENTITLED UNDER HIM BY VIRTUE OF NATIONAL LEGISLATION ALONE AND WITHOUT RECOURSE TO THE PROCEDURE OF AGGREGATION .