OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 8 NOVEMBER 1967 ( 1 )

Mr President,

Members of the Court,

In the reference for a preliminary ruling in Case 12/67 which has been made to us by the Belgian Conseil d'État, the Court must again interpret the regulations of the Council on social security for migrant workers. This time the facts are as follows.

The plaintiff in the proceedings before the (national court was employed in Luxembourg and in Belgium. He completed in /those countries insurance periods of 216 months (18 years) and 145 months (12 years and 1 month) respectively, that is to say, 361 months or 30 years and 1 month in total. Having reached the age of 65 and having stopped work, on 1 July 1961 he made a request.for a pension to the insurance institution at the place of his residence in Belgium. That request resulted in a Belgian pro rata calculation and a Luxembourg pro rata calculation in accordance with Article 28 (1) (b) of Regulation No 3. For Luxembourg the result has been the determination of a pension upon the basis of the fraction , which to tell the truth does not particularly concern us; by reason of the well-known characteristics of the Luxembourg system which provides for a fixed part the amount of which is not proportional to the length of the insurance, that pension was less than the amount which the applicant could have claimed under Luxembourg legislation alone, if Regulation No 3 had not been applied for the period of insurance in Luxembourg. In Belgium, the Minister of Social Security calculated a proportion representing of the amount which would have been granted to the plaintiff if he had spent all his working life in Belgium (for a pension for accounting purposes of 49200 BF, or 19329 BF per annum). This fraction used for the calculation of the proportion was obtained by leaving aside two insurance periods of six months and seven, months respectively, which the plaintiff completed at the end of 1949 and at the beginning of 1961 in Belgium, as well as two other insurance periods of seven months and five months respectively relating to Luxembourg legislation, which the applicant completed at the beginning of 1931 and at the end of 1949, all in accordance with the Royal Decree of 30 July 1957 according to which an insurance period of less than eight months is not taken into account, whilst, on the contrary, an insurance period of more than eight months counts as a complete year.

The plaintiff disputed this decision before the Commission d'Appel Spéciale, asking that the Belgian-proportion of his pension should be calculated on the basis of of the pension for accounting purposes (that is to say, 29520 BF per annum). He relied on the Belgian Law of 12 July 1957 and the aforementioned Royal Decree, under which employees who reach the age required for a right to pension before 31 December 1961 and who show 12 years of insurance during the 15 years preceding the payment of the pension are regarded as having completed in Belgium a complete insurance period of 45 years. He maintained that, in accordance with those rules, the denominator of the fraction for the calculation of the proportion should be 45 and the numerator 45 less 18 years of insurance in Luxembourg, that is to say, 27 years.

As his request was unsuccessful, he commenced an action in the Cour Supérieure des Pensions, which annulled the decision of the lower tribunal and calculated the Belgian proportion of the applicant's pension according to months of completed insurance. The calculation was carried out on the basis of the fraction , which arrived at a total of 19760 BF per annum, the pension for accounting purposes being 49200 BF.

That decision did not satisfy the plaintiff either; putting forward the reasons already mentioned, he commenced proceedings before the Belgian Conseil d'État Taking the view that its decision would depend on the interpretation of Comnunity law (interpretation of regulations of the Council on social security for migrant workers) and, starting from the concept that without the application of these regulations the plaintiff could claim a Belgian and Luxembourg pension of a greater amount, by a decision of 24 March 1967 the Conseil d'État suspended proceedings in accordance with Article 177 of the EEC Treaty and referred the following four questions to the Court:

First question

Does a worker who has completed successively or alternately insurance periods under the legislation of two or more Member States and who does not have to aggregate these periods in order to acquire the right to benefit in any of these Member States, have the right to elect either the method of calculation provided by Article 28 of Regulation No 3 or the method of calculation resulting from the application of the legislation under which he completed the insurance periods, or does the fact that the method of calculation provided by Article 28 of Regulation No 3 may be applicable to him exclude the application of the legislative systems under which he has completed bis insurance periods?

Second question

If the worker has the option which is the subject-matter of the first question and, having regard to the fact that Regulations Nos 3 and 4 do mot lay down rules for the exercise of this option, how must a pension application made to the competent social insurance institution of one only of the Member States and based on the insurance periods completed under the legislative systems of two or more Member States be interpreted? In particular, must such an application be regarded as an abandonment by the claimant of the right to avail himself of the application of the legislation or these States which may produce a more favourable result? Or must it be interpreted as necessarily involving the application of the most favourable system?

Third question

If an application such as the one described in the second question must be interpreted as involving the application of the most favourable system, must it necessarily be regarded as an application made in proper form to each national social insurance institution with the object of obtaining the determination of benefits which may be more favourable under the national legislation which this institution is under a duty to apply, rather than a claim based on the applicability of the system of proportional calculation provided for by Regulation No 3?

Fourth question

If the worker has the option which is the subject-matter, of .the .first question and if an application such as the one described in the. second question must be deemed to foe made to each national institution so that, where appropriate, the legislation of each of the States is applied, when must he exercise his option? Can he wait for a final determination, that is to say, until all legal remedies have been exhausted or not exercised, of the claims which he has under both Article 28 of Regulation No 3 and .the various national legislative systems?

On these questions the Belgian Government and the Commission of the European Economic Community have submitted their written observations, and the Commission oral observations.

Let us consider the evaluation which follows from them.

Reply to the questions submitted

It appears first of all that this evaluation presents no difficulty, in view of the fact that we have here questions which coincide word for word with those submitted to the Court in Case 11/67. Inasmuch as these questions deal with the right of option in respect of persons who have completed insurance periods in several Member States, that is to say, in respect of the right to choose between the method of calculation provided for in Article 28 of Regulation No 3 and that resulting from the application of national laws, one may thus be inclined simply to turn to the opinion in that other reference. We have seen in fact that such a right to choose does not exist while the provisions of Regulation No 3 are applicable. In these circumstances it is necessary not only to give a negative reply to the first question but also to state that Questions 2 to 4, which are based on the existence of this right to choose, are without any purpose. At most, starting from the argument of the Conseil d'État that in neither of the Member States is it necessary to aggregate insurance periods as a condition of a right to benefit, it might appear proper co point out that in these circumstances our case-law does not allow a pro rata calculation in accordance with Article 28 of the regulation.

The Commission considers that such a procedure would be tantamount to neglecting knowingly certain essential characteristics of the facts which have been explained to us. For this reason it makes a certain number of other observations.

In fact, what appears decisive concerning the questions put by the Conseil d'État is the concept that, by calculating the Belgian pension under Belgian legislation alone, one arrives at an amount greater than that which was calculated by the Belgian court under the provisions of Article 28 concerning pro rata calculations. That is true only if the plaintiff can claim in Belgium a pension greater than that which he would have on the basis of .the fraction and in relation to the Belgian insurance periods (11 calendar years), that is to say, if he can actually claim a pension of 45 full insurance years in accordance with the transitional regulations of the Law of 12 July 1957. The conditions required in the present instance — 12 years of Belgian insurance — are not fulfilled unless, in accordance with Regulation No 3, one adds the Luxembourg insurance period to the 11 years of Belgian insurance, which are taken into account in accordance with the calculation of calendar years applicable in Belgium. Consequently, although it is true that a right to a pension is in principle acquired in Belgium, not taking account of .periods of insurance completed abroad (having regard to the fact that Belgian law does not provide for qualifying insurance periods), the special right provided for by the transitional rules in question cannot, however, be acquired unless Luxembourg insurance periods are taken into account or, to use the wording of Regulation No 3, unless aggregation as provided for in Article 27 takes place.

Thus it is legitimate to conclude that it is necessary to calculate the Belgian proportion under Article 28 of Regulation No 3 and, in these circumstances, one would have expected that the Conseil d'État would also have asked what was the method to be used for the pro rata calculation in a case such as this, all the more so as that question had given rise to lively debate before .the lower court. This question has not been put to us expressly. But I may perhaps agree with the Commission that it arises by implication from the second part of Question 1 which deals with the application of Article 28 of Regulation No 3. However that may be, it is perhaps appropriate, in accordance with the opinion of .the Commission, to consider the problem thus raised and to try to give it an appropriate solution in accordance with the principles of Regulation No 3.

While proceeding to do so, I would emphasize first of all that the number of years taken into account for the calculation of the pension for accounting purposes must coincide with the number of years appearing in the denominator of the fraction of the pro rata calculation. If, in consequence, one accepts a pension for accounting purposes of 45 years of insurance (33 years of which consist of assimilated insurance periods under Belgian legislation), it is this figure which must appear in the denominator of the fraction used to calculate the proportion and not the number of periods of employment and of actual insurance (28 years), as the Minister of Social Security considers.

As to the numerator, the reply hardly seems to present more difficulties. The problem here is the following: under the Belgian legislation (the transitional rules of the Law of 12 July 1967 already cited), the plaintiff is credited with 33 years of supplementary insurance, without having to show employment. As the Commission has shown, these 33 years must be regarded as assimilated insurance periods in accordance with Article 1 (r) of Regulation No 3. But merely by aggregating the insurance periods actually completed by the plaintiff in Belgium, the assimilated periods by virtue of the Belgian legislation and the insurance periods actually completed in Luxembourg, one would certainly arrive at an accumulation (which is unacceptable according to the decisions in Cases 1/67 and 2/67) of insurance benefits for one and the same period; in fact, the assimilated insurance period partly overlaps the insurance period completed in Luxembourg. That in fact would be incompatible with the concept contained in Articles 11 and 27 of Regulation No 3 and in Article 13 (1)(c) of Regulation No 4. As the Commission has shown, the only way of avoiding this result is to make only the insurance years which do not overlap the insurance periods in Luxembourg appear in the numerator of the fraction used for the pro rata calculation among the insurance periods included toy virtue of Belgian legislation, that is to say, 33 minus 18 = 15. In consequence, only that assimilated insurance period should be aggregated with the insurance period of 12 years actually completed in Belgium, which would give a fraction for the pro rata calculation equal to that which the plaintiff claimed in the first 27 place, As the pension for accounting purposes is 49200 BF, the proportion payable by Belgium would thus foe 29520 BF.

The Commission has also shown that this method of calculation does not cause the plaintiff to lose any rights. According to its theory, even by applying Belgian legislation alone and supposing that the actual 18 years of insurance in Luxembourg were completed under another Belgian pension system (which, under Belgian legislation, suffices to give a right to an employee's pension for an insurance period of 45 years), the necessity of applying a clause of internal Belgian law prohibiting aggregation (Law of 12 July 1957) would require a deduction to be made the result of which is a fraction of and a pension of an amount equal to that obtained by calculating the proportion on the basis of the fraction proposed by the Commission, that is to say, 29520 BF. Thus the result obtained also takes into account a concept which the Court has already emphasized in a series of cases concerning social security and which requires that insured persons shall not be placed, because of the application of Regulation No 3, in a situation less favourable than that which they would have had if national legislation alone had been applied.

In consequence the replies to be given to the questions put by the Belgian Conseil d'État must be as follows:

1. Under Regulation No 3, an insured person does not have the right to choose between the application of the provisions of the regulation and that of the legislative systems of the Member States under which he has completed insurance periods, which does not however result in each case in a pro rata calculation.

2. When application is made of the method of calculation provided for in Article 28 of Regulation No 3, it is necessary to use the same number of years in the calculation of the amount for accounting purposes as in the pro rata calculation, that is to say, all the insurance periods and the assimilated periods. But, when the assimilated periods under the legislation of one Member State and the insurance periods actually completed in another Member State overlap, it is necessary to deduct the latter from the assimilated periods for the pro rata calculation.

( 1 ) Translated from the French version.