61978C0009
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 15 JUNE 1978 (
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)
Mr President,
Members of the Court,
Once again it is the Court's task to confirm the directly applicable nature of the principle of equality of treatment between nationals of a Member State and other Community citizens in the matter of the award of old-age pensions for employed persons. In this case it is a matter of the advanced award of an old-age pension.
I —
According to French Law No 73-1051 of 21 November 1973, the old-age pension granted to employed persons, ex-servicemen or former prisoners of war is calculated at the rate normally applicable at 65 (50 %) when at their request their pension is awarded at an age between 61 and 60 years for those whose length of captivity is at least 54 months.
According to the last subparagraph of Article 1 (1) and to Article 1 (2) of Decree No 74-1194 of 31 December 1974, amending Decree No 74-54 of 23 January 1974 implementing the law in question:
‘In order to claim an entitlement under these provisions persons concerned must prove the duration of their captivity and of their military service in wartime in the French or Allied Forces by producing their service record or a certificate issued by the competent military authority or by the Ministry for Ex-Servicemen or the National Office for Ex-Servicemen’.
Paulin Gillard, the plaintiff in the main action, who was born on 6 September 1915 and is of Belgian nationality and now resident in Belgium, was employed in France. As a member of the Belgian armed forces he was a prisoner of war in Germany from 28 May 1940 to 21 June 1945, that is to say, more than 60 months.
When he reached the age of 60 he obtained from the competent French authorities as from 1 October 1975 in consideration of the periods of employment completed in France an old-age pension at the rate of only 25 % of his average annual wage.
In suport of its refusal to grant Gillard a pension at the rate of 50 %, the Caisse Régionale d'Assurance Maladie du Nord-Est pointed out inter alia that, in order to prove that he was a former prisoner of war, he had produced only a card issued by the Belgian Ministry for Defence. The Cour d'Appel, Nancy, has already rejected this purely formal submission based on the conditions in which evidence of Gillard's right to make a claim had been presented. However, the court would like to have information with regard to the following three questions:
‘1.
Must Article 4 (4) of Regulation No 1408/71, pursuant to which that regulation is not to apply to “benefit schemes for victims of war or its consequences”, be interpreted as meaning that benefits which are not strictly in the nature of compensation and are payable to those workers who were victims of the war only in so far as it detrimentally affected their acquisition of old-age pension, rights or similar rights, such as the old-age benefits instituted by the French Law of 21 November 1973 — Article L 332 (2) of the Code de la Sécurité Sociale —, are also excluded?
2.
If the answer to the first question is in the negative, must Article 13 (2) (d), pursuant to which a worker who is called up or recalled for service in the Armed Forces of a Member State is subject to the legislation of that State, be interpreted as meaning that it is also applicable to the particular old-age benefits which a national law may provide specifically for ex-servicemen and former prisoners of war?
3.
If the question set out above is answered in the negative, does the principle of non-discrimination as laid down with regard to social security in Article 3 (1) of that regulation prevent a national law such as the French Law of 21 November 1973 from excluding from old-age benefits accorded to ex-servicemen and former prisoners of the 1939-1945 war, on the grounds of the hardship suffered by them and for services rendered by them to their country, citizens of the Community who satisfy those conditions only in relation to their own Member Sute?’
II —
My discussion of the first question and the answer which I shall suggest that the Court should give will free me from the need to consider the other two at length although they are actually put in the expectation of a negative reply to the first one.
Article 4 (4) of Reguladon No 1408/71 provides that the regulation is not to apply to ‘benefit schemes for victims of war or its consequences’.
The main argument advanced by the competent French authorities against the applicant is that the provisions of the French Law of 21 November 1973 comes within the field of application of the above-mentioned Article 4 (4) because the conditions in which the benefits or advantages referred to by that law are awarded give them a character in the nature of compensation exceeding the stria bounds of social security: these benefits are not, it is said, paid to workers who are victims of war solely on the ground that the war adversely affected them as regards the acquisition of rights to old-age pensions (or to other similar advantages). The advantages (advanced payment, increase in rate) laid down by the French Law of 21 November 1973 constitute such benefits by way of compensation.
Naturally it is not the Court's function to classify the French provision in question with regard to Community law or indeed to inquire whether the law in question is intended to confer benefits strictly in the nature of compensation or whether it also has the objective of compensating ex-servicemen and prisoners of war ‘for the hardships undergone by them and the services rendered by them to the country’.
Nevertheless, it does seem to me that Article 51 of the Treaty and the provisions of Regulation No 1408/71 do refer to benefits of the same type as the adventages in question: we are indeed dealing with the entitlement or the acquisition of the right to benefit and to the calculation of the amount of benefit, expressions used in Article 51 of the Treaty of Rome or in Articles 45 and 46 of the regulation.
As soon as it is established that a law has the object in particular of neutralizing the interruption due to the war in the acquisition or maintenance of rights to old-age pensions we are indeed in the field of social security and not in that of special or individual advantages. The fact that the provisions of the French law were inserted in Article L 332 (2) of the social security code is a logical consequence of that finding though not its prime cause.
In these circumstances it seems to me to be pointless to inquire whether the law in question also has the character of benefit schemes for victims of war or its consequences and whether it relates to national solidarity as in the case of the grant to aged workers. The schemes which are excluded from the field of application of the Community rules concern benefits whose object is exclusively to repair the bodily or other injuries sustained by victims of war such as those which are dealt with in French law under the Code des Pensions Militaires d'Invalidité et des Victimes de Guerre (Code relating to military invalidity pensions and war victims).
Moreover the pension supplement provided for former prisoners of war by the French Law of 21 November 1973, re-enacted as Article L 332 (2) of the social security code, may be aggregated in France with, for example, a military invalidity pension due by reason of a wound sustained or an affliction resulting from captivity.
It must be noted that it is not necessary to refer to Article 13 (2) (d) of Regulations No 1408/71 in order that the periods completed with the Belgian armed forces may effectively be taken into consideration. Moreover I think that that provision relates only to benefits which arise from ‘service with the colours’ and not to ones which only arose on that occasion and which only have a vague connexion with military service.
III —
There can be no doubt that a scheme such as that set out in Article L 332 (2) of the social security code extends to workers of a nationality other than French who are subjects of a Member State (Belgium) which was one of the allied nations, and who served in the uniform of that State.
The Court's case-law, in particular the Hirardin judgment of 8 April 1976 in Case 112/75 ([1976] ECR 553) shows that the principle of equality of treatment laid down by Articles 7 and 48 of the Treaty of Rome and repeated in Article 8 of Regulation No 3 and Article 3 (1) of Regulation No. 1408/71 must be given direct application every time a worker from one of the Member States and a national worker are in identical conditions with regard to the social security scheme. The provisions relating to the conditions for the grant of social security pensions are texts of general scope which must disregard the criterion of nationality within the framework of the EEC and the absence of a reciprocal clause in this sphere cannot be relied on.
As workers are not free agents in respect of the fortune of arms and have no choice as to the army in which they fight it might be thought that employed persons from any Member State who suffered hardship as a result of the last war in the field of the acquisition of rights to old-age pensions should have the right, under whatever colours they served, to benefit from the provisions laid down in any Member State under which they have a right to benefit, on condition of course that they do not aggregate identical advantages under a similar scheme existing in the country in whose forces they served and from which they come. A number of Member States take into account in calculating pension rights years of captivity spent by workers; in Belgium a Royal Decree of 23 June 1970 granted this right to those possessing a ‘prisoner- of-war stripe’. It is only the European Communities which have not yet adopted measures for this purpose for their staff.
My opinion is that the Court should rule that:
A legislative provision of a Member State which grants to nationals of that State and to the nationals of other Member States a right to count a period of captivity undergone in the course of the 1939-1945 war when they were serving in the French or Allied Forces is equally applicable for the purposes of the acquisition and award of an old-age pension under Regulation No 1408/71 to nationals of other Member States if they served in Allied Forces other than the French Forces.
(
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)	Translated from the French.