OPINION OF MR ADVOCATE-GENERAL

DUTHEILLET DE LAMOTHE

DELIVERED ON 13 OCTOBER 1971 ( 1 )

Mr President,

Members of the Court,

The plaintiffs in the main actions (in Cases 26/71, 27/71 and 28/71) are all three of German nationality and have worked partly in France and partly in Germany.

When they became entitled to payment of an old-age pension the question arose whether Articles 27 and 28 of Regulation No 3 concerning social security for migrant workers applied to them.

As you will remember, in certain cases, Article 27 gives workers to whom Regulation No 3 applies the right of aggregation of insurance periods completed under the legislations of different Member States for the purpose of gaining entitlement to old-age benefits. Article 28 lays down in such cases how the benefit is to be ‘apportioned’. The amount of this benefit is first calculated for accounting purposes in accordance with national legislation alone, then the amount to be paid is apportioned according to the insurance periods completed under the legislations of the relevant Member States.

Confronted with the problem of whether these provisions apply to the plaintiffs in the main actions, the French institution, in this case the Caisse Régionale d'Assurance Vieillesse des Travailleurs Salaries, of Strasbourg, considered that these two articles applied to the three workers in question and, as a result, proceeded first to aggregate their insurance periods in Germany and in France and then to calculate the amount ‘for accounting purposes’ of the old-age pension which, on the basis of aggregation, they could claim under French legislation, and finally to determine the actual benefit payable to them by apportioning this theoretical benefit according to the number of insurance periods completed in France.

The three applicants objected to this decision.

In fact, as in the Ciechelski case which you decided on 5 July 1967 and on which the applicants rely, they dispute the apportionment, which is the consequence of aggregation, without however clearly perceiving that the two are linked together.

They then brought the matter before the Commission de Procedure Gracieuse of Strasbourg and subsequently, receiving no satisfaction from this Commission, before the Commission de Première Instance du Contentieux de la Sécurité Sociale du Bas-Rhin.

This is the court which has referred the questions now before you.

Since these questions are in identical terms, I ask you to allow me to give a joint opinion on the three cases.

Although these questions are in certain respects rather imprecise and the way in which they are formulated is open to argument, I think that, when examined in the light of the facts in each case, they raise in fact two problems.

1. The first is whether you will confirm the principles developed by your judgments in Ciechelski and De Moor of 5 July 1967, reaffirmed moreover in subsequent judgments.

2. The second is whether Article 27 (1) of Regulation No 3 must apply where the person concerned satisfies, without aggregation, the conditions for obtaining any one of the old-age benefits provided for by a national scheme or only where such aggregation is necessary in order to entitle him to certain of these benefits.

I

As regards the first problem, my observations will be very brief.

In your judgments in Ciechelski and De Moor of 5 July 1967 you made reference to and developed three basic principles for the application of Articles 27 and 28 of Regulation No 3:

(1) There should be no aggregation under Article 27 where the person concerned is entitled to benefit in one Member State without the need to have recourse to periods completed under the legislation of other Member States;

(2) Where aggregation does not apply, proportional calculation does not apply either;

(3) Proportional calculation could only be effected in such cases if the insurance periods entitling the person concerned to benefit under the domestic law of one of the Member States were at the same time taken into account in determining the amount of other benefits in other Member States.

Those judgments do not seem to have entirely convinced the Commission de Première Instance du Contentieux de la Sécurité Sociale du Bas-Rhin.

It is certainly permissible for a national court to ask you further questions about the interpretation which you have given of a Community regulation.

This you formally decided in your judgment of 3 April 1968, Molkerei-Zentrale.

It would however be preferable if the national court, when submitting further questions, would explain clearly its doubts which is not the case here.

The Caisse Régionale of Strasbourg casts doubts on the whole of your case-law in a statement formulated in terms which are at times unfortunate.

The tone of this document and the lack of information which it displays with regard to the Community regulations and case-law on which it appears to base its arguments are such that I have hesitated to propose anything else than to dismiss it without discussion, recalling only the old proverb from my home province: ‘It is a waste of the priest's time to say mass twice over to the deaf.’

However, I will reply briefly to the objections made with the following observations:

1. Contrary to what the Caisse Régionale of Strasbourg seems to believe, the right, or the lack of right, to aggregation is not dependant on the ‘interest’ which the person concerned may have in obtaining that aggregation. This the Court expressly ruled in its judgments in Case 11/67 of 12 December 1967, Couture, and Case 12/67 of 13 December 1967, Guissart, in which one reads: ‘The application of the system established by Articles 27 and 28 of Regulation No 3 depends only on the objective conditions and circumstances in which the worker concerned is situated’, and not on the latter's free choice.

2. The textual arguments relied on by the Caisse de Sécurité Sociale have been studied by you in minute detail in the cases Ciechelski and De Moor; since they did not appear to you to be decisive, there is no point in re-examining them.

3. Finally, the argument which, alone, appears to have troubled the Strasbourg Social Security tribunal is that, where aggregation does not take place, the overlapping of two national benefits may result in a total greater than the amount of one only of those benefits calculated after aggregation. You have examined this argument at length, as was requested of you by your Advocates-General, our most senior Member Mr Roemer and Mr Gand, and you expressly rejected it in one of the recitals of your judgment in Ciechelski.

Let me finally add that it would be regrettable to cast doubt on the cases cited above since:

(a) Regulation No 1408/71 of 14 June 1971 already provides expressly for it to be extended, it is to be hoped in the near future, to cases to which in the previous state of the legislation the case-law of the Court did not apply;

(b) the national courts are applying these principles fully, as can be seen for example in French case-law (I am taking this example because the present cases are referred to you by a French court) in the judgment of the Cour d'Appel, Dijon, of 8 January 1969, the judgment of the Cour de Cassation, Chambre Sociale, of 2 July 1970 upholding that judgment of the Cour d'Appel, Dijon, or finally the judgment of the Cour d'Appel, Paris, of 9 June 1970.

I think therefore that you should reaffirm, strongly, the principles developed in your judgments in Ciechelski and De Moor which, moreover, only confirmed the less precise statements made as early as your judgment of 15 July 1964, Kalsbeek (née van der Veen) ([1964] ECR at pages 573 and 574), and which was later confirmed in your judgments of 12 and 13 December 1967, Couture and Guissart ([1967] ECR at pages 379 and 425).

II

The second problem which this case raises seems to me to be far more interesting.

Your judgment in Ciechelski, like all the other judgments which I have cited, rules out aggregation when, without it, the person concerned has the ‘right to benefit’ under the national legislation. You might perhaps, on this occasion, clarify what is meant by ‘right to benefit’.

The cases which have been referred to you raise this very problem.

Chapter V of the French Code de la Sécurité Sociale entitled ‘Old-age insurance’ provides, in Section I relating to the ‘payment and calculation of old-age pensions’, for three different benefits:

(1) That of Article L 331 or 332, which is an old-age pension received from the age of 60 by those who have contributed for at least 30 years and which is calculated acording to the basic annual salary;

(2) That of Article L 335, which is also a pension, although described in practice as ‘proportional’, and is received from the age of 60 by an insured person who has contributed for more than 15 years but less than 30 years and which is calculated on the same basis as the pension under Article L 331 but according to different rules;

(3) Finally, that of Article L 336, which is an annuity paid from the age of 65 to a person who has contributed for more than 15 years but less than 15 years and which is calculated according to a very complicated system which depends on the contributions paid by the employed person and/or for him.

Finally, Article L 337 lays down the rules for repayment of contributions to an insured person who is not entitled to any benefit.

In the present case, although all the persons concerned appear to have been entitled without aggregation, from the age of 65, to an old-age pension under the German legislation, it is clear from the findings of the French courts that Gross—Case 26/71 and Höhn—Case 28/71—were only entitled in France, without recourse to aggregation, to the annuity under Article L 336, whereas Keler—Case 27/71—would have been entitled in France without aggregation to the proportional pension under Article L 335.

The Commission was, it seems, very struck by this fact and asks you, with regard to Cases 26 and 28/71, to reply that since aggregation was applicable for the acquisition of the right to the proportional pension, a pro rata calculation was therefore necessary, but on the other hand, in Case 27/71, since this same proportional pension was acquired without recourse to aggregation there is no need to apportion the benefit.

I do not think that you can go as far as the Commission wishes you to go, without moreover, explaining exactly why. In fact, you could, I think, decide whether or not specific benefits under a national system fall within the ambit of Articles 27 and 28 only if this question was expressly asked of you pursuant to Article 177, which is not the case here.

You could at the most, in my opinion, clarify the following points for the national court:

(1) Is aggregation inapplicable when, without aggregation, the person concerned was entitled to any one of the old-age pensions under the national system?

(2) On the other hand, is aggregation applicable when, without aggregation, the person concerned was not entitled to the maximum benefit provided for by the national system?

We should note that in France, the Cour de Cassation, following Ciechelski and other judgments of the Court, has, in the abovementioned judgment of its Chambre Sociale of 2 July 1970, clearly come down in favour of the first solution, since one reads in this judgment:

‘When in a Member State, the right to any old-age benefit is acquired without its being necessary to have recourse to periods completed under the legislation of other Member States, the application of Articles 27 and 28 of Regulation No 3 is unnecessary’.

Should the Court, in general terms, approve or reject this view, which follows from a certain interpretation of Article 27 of Regulation No 3 itself, of those of its judgments which have already interpreted that provision and of relevant national legislation?

I think that it is best to confirm this interpretation while observing a certain caution:

1. It seems certain to me that the argument according to which the rule relating to aggregation is applicable when the person concerned is not entitled, without aggregation, to the maximum benefit under the national system has already been rejected, by implication but necessarily, by your case-law. This was in fact the case of Mr Ciechelski who, without aggregation, was not entitled to the maximum benefit under Article L 331 of the French Code de Sécurité Sociale but only to the proportional pension under Article L 335. Mr Advocate-General Gand emphasized this fact to you and asked you to take account of it in the judgment which you were to give. The fact that your judgment considers only the case where aggregation is unnecessary for acquisition of the right to benefit shows that you did not thank it necessary to take account of the fact that the person concerned was not entitled without aggregation to the maximum benefit provided for under the national system. Furthermore, I should add that if you were to give Article 27 a contrary interpretation that would probably result in aggregation and proportional calculation being applicable to almost all migrant workers without distinction, which was certainly not the intention of the authors of Regulation No 3.

2. In view of the extreme diversity of old-age insurance systems in the six Member States, it would be very difficult to find a general criterion for distinguishing amongst the benefits of national systems those for which it would be necessary to apply aggregation, having regard to the advantages which each of these benefits gives to those concerned. The French example demonstrates this. The three benefits provided for by Chapter V of the French Code de Sécurité Sociale, the tide of which is ‘Old-age insurance’, all include one identical condition for the acquisition of the right to benefit: a certain period of insurance. All three revert under the same circumstances to the widow or survivors. The two benefits under Article L 331 (30 years of insurance) and Article L 335 (more than 15 years but less than 30 years) are settled on the same basis. Admittedly, the annuity under Article L 336 has a different basis of settlement (the total amount if contributions made by both employee and employer). But does that fact enable you to distinguish, from the point of view of the application of Article 27 of Regulation No 3, between those who acquire benefit under Articles L 331 or L 335 on the one hand, and under Article L 336 on the other? This seems difficult to accept, since in your judgment in Ciechelski, cited above, you ruled that the applicability of Article 27 of Regulation No 3 is dependent on the conditions of acquisition of the right to benefit and not on the rules for calculating that benefit.

3. Until such time as the different national social security systems are harmonized, which appears increasingly necessary, it seems to me therefore to be wise to accept that aggregation is applicable only when the person concerned is not entitled, without aggregation, to any of the benefits provided for by the national old-age insurance system. Perhaps, however, you might be somewhat more precise in relation to this guideline, which, whilst enabling national courts to resolve a certain number of practical difficulties, will not bind you for the future. With this in mind, allow me to suggest that you emphasize that your interpretation is valid at least in respect of annuities acquired under national legislation on the basis of a certain period of insurance.

I advise you therefore to rule that:

(1) Where in a Member State the right to one of the benefits under the old-age insurance system granted on the basis of a certain period of insurance has been acquired without its being necessary to take account of periods completed under the legislation of other Member States, the competent institution of the first State is not entitled to apply Articles 27 and 28 of Regulation No 3 with a view to reducing the benefit for which it is liable under its own legislation, at any rate where that benefit is not linked to periods already taken into account in calculating the amount of benefits paid by the competent institution of another State.

(2) Articles 27 and 28 of Regulation No 3, interpreted in the above manner, are not contrary to Article 51 of the EEC Treaty.

( 1 ) Translated from the French.