OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 19 SEPTEMBER 1973

My Lords,

The aftermath of Empire has brought, for those of our countries that were formerly imperial powers, liabilities of many kinds which, whilst unwelcome, are for one reason or another inescapable. The central question in the present case is whether Community law imposes upon France an obligation to pay to a citizen of another Member State, who spent a large part of his working life in Algeria when it was French territory, a pension, the right to which he must otherwise lose as a result of Algerian independence.

The case, of which the facts are tragic, comes to this Court by way of a reference for a preliminary ruling by the Cour de Cassation of France.

Those facts are briefly as follows. The appellant in the Cour de Cassation, Herr Gerd Wolfgang Fiege, was born in 1922 in Hanover and has at all material times been a German citizen. He worked, and was insured for social security purposes, in Germany from 1936 to 1947, in metropolitan France from 1947 to 1949, and in Algeria from 1951 until, in November 1959, he contracted poliomyelitis. This has left him confined to a wheel-chair and needing constant attendance.

At the time when he contracted his illness the appellant was insured for social security purposes with the Caisse de Sécurité Sociale of Oran. From this institution, he received at first sickness benefits and, as from 17 December 1962, an invalidity pension the commencement of which was back-dated to 1 November 1962. By this time Algeria had become independent (it became so in July 1962) and the appellant was told by the Algerian authorities that the continued payment of his invalidity pension was conditional upon his remaining resident in Algeria.

The appellant for his part wished, not unnaturally, to go home to his family in Germany. With this in view he lodged a claim for a pension, in pursuance or purported pursuance of Article 30 of Regulation No 4 of the Council of the EEC, to the Bundesversicherungsanstalt fur Angestellte in Berlin.

Your Lordships will remember that the Council is required by Article 51 of the EEC Treaty to ‘adopt such measures in the field of social security as are necessary to provide freedom of movement for workers’ and, to this end, to‘make arrangements to secure for migrant workers and their dependants:

(a) 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;

(b) payment of benefits to persons resident in the territories of Member States.’

In compliance with this obligation, the Council in 1958 adopted Regulation No 3 ‘concerning social security for migrant workers’ and Regulation No 4 ‘fixing the procedure for implementing, and completing the provisions of, Regulation No 3’. Both Regulations came into force on 1 January 1959. They, and subsequent Regulations amending them, were superseded as from 1 October 1972 by Regulations (EEC) No 1408/71 and (EEC) No 574/72 of the Council.

Article 30 of Regulation No 4 related to the submission and investigation of claims under Articles 26 to 28 of Regulation No 3, that is to say claims to invalidity, old age and death benefits. It was purely procedural, as was held by this Court in Case 11/67 Office National des Pensions pour Ouvriers v Couture (Rec. 1967).

The question whether Article 30 had any and, if so, what relevance in the circumstances of this case is one of those in effect raised by the reference to this Court by the Cour de Cassation.

Be that as it may, the appellant's claim, which was initiated early in 1963, at which time he was still resident in Algeria, was transmitted by the Bundesversicherungsanstalt für Angestellte to the Centre de Sécurité Sociale des Travailleurs Migrants in Paris — though not, for some reason that has not been explained to this Court, until May 1967. The latter institution forwarded the claim promptly to the Caisse Régionale de Sécurité Sociale of Strasbourg, which passed it on to the Caisse Régionale d'Assurance Maladie of Strasbourg. This last institution is the Respondent in the appeal before the Cour de Cassation. It was the institution, or at all events the last relevant institution, with which the appellant was insured when he worked in metropolitan France.

As I have indicated, it appears that, at that stage, the appellant's claim was, in form, a straightforward claim for a pension, and not, as it later became, again in form, a claim for the transfer of the pension to which he was entitled in Algeria. It was rejected by the Respondent on 20 July 1967 on the grounds that, Algeria having become independent, the only periods of employment that could be recognized as qualifying the appellant for a pension in France were those that he had served in Germany and in metropolitan France, and that these were between them too short to have earned him any pension.

From that decision the appellant appealed to the Commission de Recours Gracieux de la Caisse Régionale d'Assurance Maladie, which, in December 1967, dismissed his appeal.

The appellant then appealed to the Commission de Premiere Instance du Contentieux de la Sécurité Sociale in Paris. It appears that it was at this stage that he changed the form of his claim into that of a claim fort the transfer of his existing pension. It also appears that, in so doing, he relied to some extent on Article 47 of Regulation No 4. This was, I think, misconceived, for that Article merely required a pensioner who transferred his residence from one Member State to another, or from a non-Member State to a Member State, to inform the institution or institutions concerned of that fact. It did not of itself confer any rights. At all events the appellant's appeal to the Commission de Première Instance was dismissed in June 1969.

Undeterred, he appealed to the Cour d'Appel of Paris, and again without success. It is against the Judgment of the Cour d'Appel of Paris, which is dated 22 December 1970, that the appellant now appeals to the Cour de Cassation.

My Lords, I think that in order to understand the issues in the case it is necessary to look first at the grounds of the Judgment of the Cour d'Appel of Paris. In doing so, one must bear in mind that, at the time when that Judgment was delivered, the appellant was still resident in Algeria. This is no longer so. He is now resident at Bad Pyrmont in the Federal Republic of Germany and has been, I understand, for about two years. One must also bear in mind that, as appears from the Judgment itself, the appellant did not appear and was not represented before the Cour d'Appel. That Court was, it seems, able to ascertain the grounds of his appeal only from a perusal of his pleading in the proceedings before the Commission de Première Instance. From this pleading the Court gathered that the appellant relied essentially on Article 10 of Regulation No 3 and Article 30 of Regulation No 4 — as indeed he still does.

To Article 30 of Regulation No 4, which, as Your Lordships will remember, is only procedural, I have already referred. Article 10 (1) of Regulation No 3 is, on the other hand, of crucial importance in the case. It was in the following terms (there being no authentic English text of it, I read the French):

‘Les pensions ou rentes et les allocations au décès acquises en vertu des legislations de l'un ou de plusieurs des Etats membres ne peuvent subir aucune reduction, ni modification, ni suspension, ni suppression, ni confiscation du fait que le bénéficiaire reside sur le territoire d'un Etat membre autre que celui ou se trouve l'institution débitrice.’

The Cour d'Appel of Paris considered that this Article could have no application to the appellant's pension, for in its view that pension had not been acquired under the legislation of any Member State, but under the legislation of independent Algeria. Moreover the appellant was not resident on the territory of a Member State other than where the ‘institution débitrice’ was situate. He was resident in Algeria, a non-Member State, where the ‘institution débitrice’, the Caisse de Sécurité Sociale of Oran, was also situate. By the same token the only institution to which the appellant could submit a claim for a pension was that of Oran and Article 30 did not entitle him, a German citizen, resident in Algeria, to claim that liability for the payment of his pension should be transferred, in the event of his return to live in Germany, to the respondent. That Article was in any event concerned only with claims to benefits, not with transfers of them.

My Lords, in my opinion, the fundamental question in this case, upon which all else turns, is whether the Cour d'Appel was right in considering that the appellant's pension was not acquired under the legislation of a Member State.

At first sight of course the conclusion that that pension was not so acquired seems inescapable. But I think that a closer examination of certain provisions of the relevant Community legislation leads on the contrary to the conclusion that, for the purposes of Regulations No 3 and No 4, that pension must be deemed to have been acquired under the legislation of France. I infer that those provisions and their significance were not brought to the attention of the Cour d'Appel, for I find no mention of them in its Judgment. This Court in contrast has had the advantage of very helpful submissions about them both by Counsel for the appellant and by Counsel for the Commission.

By the combined effect of Article 1 (a) and Annex A of Regulation No 3, the territory of France was defined, for the purposes of that Regulation, as consisting of metropolitan France, Algeria and certain overseas départements. By the combined effect of Article 3 and Annex B of the same Regulation, it was provided that the social security legislation to which the Regulation applied was, so far as regarded France, that in force in metropolitan France, in Algeria and in those overseas départements. By the combined effect of Article 5 (1) of Regulation No 4 and of various Annexes to which it referred, Regulations No 3 and No 4 were made expressly applicable to Algerian social security institutions.

My Lords, France could not and did not, by the mere act of granting independence to Algeria, modify those express provisions of Community regulations. Such a modification could only be effected in the case of Annex A of Regulation No 3 by another Community regulation, in the case of Annex B by French legislation notified in accordance with the procedure prescribed by Article 3 (2) of Regulation No 3, and in the case of the relevant Annexes to Regulation No 4 by French legislation notified in accordance with Article 5 (2) of that Regulation.

What actually happened was that the reference to Algeria was deleted from Annex A of Regulation No 3 with effect from 19 January 1965 by Article 5 of Regulation 109/65/EEC of the Council, which was dated 30 June 1965. It is important to note that Article 16 of this Regulation expressly preserved rights acquired before its entry into force. Contemporaneously, France formally notified consequential deletions from the other relevant Annexes, each to take effect on 19 January 1965. The reason for the choice of that date was that is was the date of the signature of a Franco-Algerian Convention on social security.

It is accordingly in my opinion clear, as was submitted both on behalf of the appellant and by the Commission that, whatever may have been the status of Algeria for other purposes after July 1962, that country must be deemed for the purposes of Regulations No 3 and No 4 to have remained part of France until 19 January 1965. From this it follows that for the purposes of those Regulations the appellant's pension must be deemed to have been acquired under the legislation of France. On that footing the appellant, at the same time as he acquired the right to his pension, acquired, by virtue of Article 10 of Regulation No 3 (now superseded by Article 10 of Regulation (EEC) No 1408/71) the right as a matter of Community law, to go and live in the territory of any Member State without suffering any reduction, modification, suspension, withdrawal or confiscation of his pension.

My Lords, I know that, in expressing that opinion, I am, like the Commission, differing from the view suggested in a Note (CASSTM 64/69) prepared by the Administrative Commission set up under Article 43 of Regulation No 3. It is not clear whether the view put forward in that Note was ever formally adopted by that body, but in any case such adoption would not bind this Court. With all respect to the authors of the Note, I do not find its reasoning convincing. It proceeds from the fact that as from July 1962 the EEC Treaty no longer applied in Algeria and concludes that Regulation No 3 could have no wider application than the Treaty. This is of course true in the sense that neither the Treaty nor Regulation No 3 bound the independent State of Algeria and also in the sense, as is pointed out by the Commission, that after July 1962, Regulation No 3 could not confer any rights on those who then became Algerian citizens. But the question in the present case is not concerned with the rights and obligations of Algeria or of Algerians. It is whether a particular pension payable to a German citizen must be deemed to have been acquired under the legislation of France, and on that question Community law remains paramount. I observe by the way that the Administrative Commission's legal advisers did not share the view put forward in the Note.

My Lords, every legal right entails a countervailing legal obligation and, to my mind, the next question that arises is whether the obligation to give effect to the right conferred by Article 10 on a pensioner was an obligation of the Member State itself under whose legislation the right to the pension had been acquired or was merely an obligation of the institution to which the Regulations referred as being responsible for the payment of the pension.

In my opinion the obligation must rest on the Member State concerned itself. It was inherent in the scheme of Regulations No 3 and No 4 that each Member State was free at any time to alter the structure of its social security institutions (see in particular Article 5 of Regulation No 4). Included in this freedom was, undoubtedly, the freedom to abolish particular institutions. But implicit in it too was the obligation, if a Member State abolished any particular institution, to provide a substitute (either by widening the functions of an existing institution or by creating a new one) to give effect to the rights that the Regulations conferred on migrant workers, including the rights under Article 10 of those who had become pensioners. My Lords, if it were to have been held that the Regulations imposed obligations only on the institutions to which they referred, and not on the Member States, those rights could soon have become a mockery. The position, I should make it clear, is no different in my opinion under the present legislation.

I conclude that the appellant has a right, enforceable against France as such, to the continued payment of the pension that was awarded to him in Algeria in 1962. If he has that right, the fact, if it be a fact, that France may not have adopted all the legislative and administrative measures that were appropriate under its internal law to give effect to his right, cannot deprive him of it. It is trite law in this Court that a Member State cannot avoid its obligations under Community law by failing to provide machinery for their performance. Indeed such failure is in itself a breach of the Treaties — see Article 5 of the EEC Treaty and, for instance, Case 31/69, Commission v Italy (Rec. 1970), Case 39/72 Commission v Italy (not yet reported) and Case 30/72 Commission v Italy (not yet reported). Similarly, express provisions of French law cannot be relied upon to deprive the appellant of his right — consider for instance Case 48/71 Commission v Italy (Rec. 1972). It is, I think, necessary to underline this point in view of an argument that was put forward by the respondent, both in the Cour d'Appel and in this Court, and to which the Cour d'Appel paid some regard, to the effect that the appellant can look only to the Caisse of Oran for payment of his pension because certain French legislation of 1953 so provided. The true position is, of course, that that French legislation, if and insofar as it is inconsistent with Community law, must yield to it.

That conclusion makes it unnecessary for me to express a decided opinion on a difficult point that was broached by the Commission in its written observations. A French statute, No 64-1330 of 26 December 1964, provided for the assumption by the social security institutions of metropolitan France of liability for the payment of certain benefits earned in Algeria. By virtue of Article 3 of that statute, those benefits were to include invalidity pensions. Such pensions were however to be calculated as if they had been earned in metropolitan France. What difference this would have made to the amount of the appellant's pension if the statute had applied to him, the Court has not been told. In fact the benefit of the statute was confined to French citizens resident in France and to certain foreigners recognized as ‘rapatriés’. It is arguable that in this there lay a discrimination incompatible with Article 8 of Regulation No 3 and incompatible also with the principles that this Court has, in a number of cases, distilled from Articles 48 to 51 of the EEC Treaty. The Commission on the other hand considers that France is entitled to rely, in defence of the limited scope of the statute, on the provisions of Article 2 (3) of Regulation No 3 about schemes for the benefit of victims of war. For the reason I have indicated, I do not think it necessary for this Court to decide the point in these proceedings.

I turn to the actual questions referred to the Court by the Cour de Cassation.

The first is in these terms:

‘Whether the provisions of Article 30 of Regulation No 4 of the Community which apply to claims for the grant of benefits, also apply to transfers of invalidity pensions.’

My Lords, I think that the short answer to that question must be ‘No’. As was pointed out by the Commission in its written observations, Regulations No 3 and No 4 do not envisage the transfer of the responsibility for the payment of a pension from the institutions of one Member State to those of another, and, insofar as such responsibility may fall to be transferred between institutions within a Member State, the appropriate procedure must be a matter for the legislation of that Member State. But I think it a mistake to regard the appellant's claim (whatever form it may have taken from time to time) as having been a claim for the transfer of his pension. It should, in my opinion, properly be regarded as a claim for the continued payment of his pension notwithstanding his removal to Germany — in other words a claim for effect to be given to his rights under Article 10 (1). In the nature of things, the Regulations made no express provision for the procedure to be adopted in the case of such a claim, but I can see no reason why Article 30 should be held inapplicable to it.

The second question referred to the Court by the Cour de Cassation is as follows:

‘Whether the provisions of Annex A of Regulation No 3 which, in their former wording of the definition of the territories to which it applies, mentioned Algeria together with metropolitan France, led to particular obligations for the French Social Security institutions distinct from those devolving on the Algerian institutions, compelling them to pay benefits in cases of default by the Algerian institutions.’

My Lords, I need not repeat the arguments that have led me to the conclusion that the answer to that question is broadly ‘Yes’. I say ‘broadly’ because I think that strictly the obligations referred to are, in the eyes of Community law, obligations of France, as the Member State concerned, rather than obligations of the French Social Security institutions. Moreover, now that Algeria is independent, there are no obligations devolving on the Algerian institutions under Community law, so that the only relevant obligations arising under Community law are those of France. That is not to say of course that France may not, in so far as it can, secure (by means of the Franco-Algerian Convention or otherwise) that its obligations are met by Algerian institutions — as indeed happened in the case of the appellant until his removal to Germany. But, so far as Community law is concerned, to see France as, as it were, underwriting distinct obligations of Algerian institutions, is, I think, inaccurate.

The third question posed by the Cour de Cassation is:

‘Whether it is equally so for rights to benefits arising in favour of a national of a Member State and recognized by an Algerian institution after Algeria's independence but before the introduction of Regulation No 109/65 of 30 June 1965 expressly excluding Algeria from the territories to which Regulation No 3 applies.’

Again, my Lords, I need not repeat the argument that has led me to the conclusion that the answer to that question must be ‘Yes’ at all events in the case of rights to benefits acquired by citizens of Member States before 19 January 1965. There is some discussion in the papers before the Court about the position in the case of rights acquired between that date and 30 June 1965. That problem does not arise in the present case and I think it better to say nothing about it.

The fourth question is:

‘Whether it is equally so for a claim for transfer addressed to a German institution after Algeria's independence, but which was referred to a French institution only after the introduction of Regulation No 109/65.’

As to this, my Lords, I would make three points.

The first, obviously, is that, as I have already indicated, I do not think it right to regard the appellant's claim as one for a transfer.

The second is that, with all respect to the Cour de Cassation, it seems to me that the question is too widely framed. It is expressed to refer to a claim addressed to any German institution and referred by that institution to any French institution. The appellant's claim in the present case was addressed to the German liaison body designated under Article 3 of Regulation No 4 and was referred by that body to the French body similarly designated. Article 3 (2) of Regulation No 4 provided, so far as material, that ‘… toute personne résidant ou séjournant sur le territoire d'un Etat membre peut s'adresser à l'institution d'un autre Etat membre par l'intermédiaire des organismes de liaison’. So far as the applicability of this Article is concerned, no point has been taken that the appellant was not yet resident in Germany when he lodged his claim. To my mind, it is doubtful whether any such point could effectively have been taken. But, for aught we know, the appellant may have been on a visit to Germany at the time, which would have been enough to entitle him to invoke the Article's provisions.

The third point is that the date of the receipt of the appellant's claim by the French authorities cannot, it seems to me, affect the substance of his rights. We are here concerned, if my main conclusions are correct, with a continuing obligation on the part of France to secure to the appellant the payment of his pension. There was no actual breach of that obligation until two years ago when, because of his return to Germany, payment of his pension by the Caisse of Oran ceased. There was of course a kind of anticipatory breach of that obligation when the French authorities (in the form, principally, of the respondent) in effect intimated to the appellant that his right to the continued payment of his pension, in the event of his return to live in Germany, would not be recognized by them — and thereby triggered off this litigation. I do not however pause to consider what remedies that anticipatory breach of France's obligation would have availed the appellant under Community law. It has been overtaken by the event of his return to Germany. I think it enough to say that he is now entitled to actual compliance by France with its obligation and that it is open to him to assert his right to such compliance at any time.

The fifth and last question posed by the Cour de Cassation is as follows:

‘If the answers to the foregoing questions are in the affirmative, whether those provisions should be interpreted as meaning that a migrant worker who worked in turn in Germany, then in France and finally in Algeria where he obtained the grant of an invalidity pension from 1 November 1962, subsequently to Algeria's independence, and who wishes to take up residence in Germany, is entitled to address his claim for the transfer of his pension, not to the last institution to which he was affiliated in Algeria, but to a French institution to which he had formerly been affiliated.’

This question is of course framed on the footing that Article 30 of Regulation No 4 applied to a claim for the transfer of a pension and that the appellant's should be regarded as such a claim. As I have already indicated, I think that the real question is: On the footing that the appellant's claim was a claim for the continued payment of his pension after his removal to Germany and on the footing that Article 30 governed the procedure applicable to that claim, what were the consequences of the applicability of that Article? Counsel for the appellant submitted that this was the most difficult of the five questions referred to this Court by the Cour de Cassation. I agree with him.

My Lords, as Your Lordships will remember, Article 30 was divided into three paragraphs, each of which was -applicable to a different situation. Paragraph 2 clearly had no application in the present case, for it applied only to a worker who was resident in a Member State where he had never been insured. In the case of any other worker resident in a Member State it was paragraph 1 that applied, whilst in the case of a worker resident in a non-Member State it was paragraph 3. It seems to me necessarily to follow from the fact that Algeria was to be deemed, for the purposes of Regulations No 3 and No 4, to have been part of France until 19 January 1965 that the appellant must be deemed to have been resident in France for the purposes of Article 30 until that date; and, by the same token, that he must be deemed to have been resident in a non-Member State between that date and the date of his return to Germany. What then are the consequences?

If one takes the relevant date as having been that in 1963 when the appellant first lodged his claim with the German liaison body in Berlin (and probably one should — see Article 83 of Regulation No 4) paragraph 1 applied and required his claim to be submitted to the appropriate institution of the country where he was resident, i.e., if I am right in what I have just said, to the appropriate French institution. This gives rise to the problem on which, Your Lordships will remember, I pressed Counsel for the appellant at the hearing, for, on the footing that France, until 19 January 1965, included Algeria, the view might be taken that the appropriate ‘French’ institution was the Caisse of Oran. This view is however unacceptable, because its adoption would result in the appellant being denied on procedural grounds the substantive right that he has against France. Counsel for the appellant, conscious of the problem, developed an argument which was designed to show that the appropriate French institution was the respondent. My Lords, it is to be observed that the Cour de Cassation has stopped short of asking this Court to say which is the appropriate French institution, although it has referred, in its question, to a ‘French institution to which he had formerly been affiliated’. I think, if I may say so with respect, that, in so limiting the scope of its question, the Cour de Cassation was right. In the ultimate resort, the identity of the appropriate French institution is a matter of French law — consider for instance Article 1 (f) (i) of Regulation No 3 and Cases 51 to 54/71 International Fruit Company v Produktschap Groenten en Fruit (Rec. 1971). It is thus, in my opinion, enough for this Court to say, in effect, that France is under an obligation to ensure the continued payment of the appellant's pension and under a consequential obligation to ensure that there is an institution from which he can claim such payment. The circumstance that the appellant was, for a time, affiliated to a social security institution of metropolitan France must, in the eyes of Community law, be fortuitous, for the obligation of France under that law would have been the same had he never worked or been insured elsewhere than in Algeria. But to say this is not to say that that circumstance may not be highly relevant in French law. As to that I know not, and it is not, in my opinion, for this Court to decide.

My Lords, if on the other hand one takes the relevant date as having been that in 1967 when the appellant's claim was first received in Paris, the result is effectively the same, for then paragraph 3 of Article 30 applied and it required that his claim should be submitted to the competent institution of the Member State under whose legislation he was last insured — that is France, because when he was last insured France, if I am right, included Algeria.

I am therefore of the opinion that the questions referred to this Court by the Cour de Cassation should be answered as follows:

1. The provisions of Article 30 of Regulation No 4 of the Council of the European Economic Community did not relate to any claim for the transfer of an invalidity pension. They did however apply to a claim (in whatever form) by a person relying on Article 10 (1) of Regulation No 3 of the Council to the continued payment of an invalidity pension previously awarded to him.

2. and 3. The provisons of Regulation No 3, and in particular Article 10 (1) and Annex A thereof, imposed upon France an obligation to ensure the continued payment to a national of a Member State, resident on the territory of any Member State, of any invalidity pension awarded to him by an Algerian social security institution before 19 January 1965.

4. The date of the receipt by a French institution of such a person's claim for the continued payment of his pension could not affect his right thereto.