CELEX: 61978CC0010
Language: en
Date: 1978-09-20
Title: Opinion of Mr Advocate General Capotorti delivered on 20 September 1978. # Tayeb Belbouab v Bundesknappschaft. # Reference for a preliminary ruling: Sozialgericht Gelsenkirchen - Germany. # Case 10/78.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 20 SEPTEMBER 1978 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      
               1.
            
            
               The present case raises the problem of the effen of the loss of the nationality of one of the Member States on the applicability of Regulation No 1408/71 of the Council of 14 June 1971 on social security for migrant workers.
               The case concerns a worker who was born in Algeria in 1924 and was thus a French national from birth but who acquired Algerian nationality from 1 August 1962. From 1947 to 1950 and from 1951 to 1960 for a total of 155 months he worked in the French coalmines. In 1960 he moved to Germany once again finding work in a mine. At the time of his change of nationality the plaintiff had completed 14 months' insurance under the German social insurance scheme for miners. In 1974, when he completed his fiftieth year, the insurance periods completed by him in Germany for the purposes of the miners' pension amounted to 142 months. Mr Belbouab subsequently continued in the same work in the Federal Republic of Germany. Accordingly if the French and German insurance periods are aggregated he had completed more than the 300 months required in order to have a right to an old-age pension on completing his fiftieth year pursuant to Article 45 (1) (2) of the German law on social insurance for mineworkers (Reichsknappschaftsgesetz).
               On 4 May 1974 Mr Belbouab submitted to the competent German institution an application for a pension. It appears that at that time the insurance periods completed by hún on the basis of his periods of employment in France and Germany amounted to 297 months that is three months fewer than required. However, the decision by the German authority rejecting the application was based in essence on the fact that the plaintiff was no longer the national of a Member Sute of the Community and that Regulation No 1408/71 of the Council, which, as has been stated, provides inter alia for the aggregation of insurance periods completed in the various Member States for the acquisition of rights to insurance benefits, for workers moving within the Community, must therefore be regarded as not being applicable to the plaintiff.
               The administrative appeal lodged by Mr Belbouab against the decision rejecting his application was also unsuccessful; the new decision added the argument that by Regulation No 109/65 of the Council of 30 June 1965 Algeria had been deleted from List A annexed to Regulation No 3 on social security and it was stated that that provision was no longer applicable to Algeria and its nationals as from 19 January 1965. The same naturally applied to the aforesaid Regulation No 1408/71 which replaced Regulation No 3. Furthermore, according to the German administration, the fact that the worker was a national of a Member Sute when he worked in the French mines was irrelevant and the decisive factor was rather his nationality at the time of his application for a pension.
               The German social security institution reaffirmed its view before the Sozialgericht (Social Court) Gelsenkirchen to which an appeal had been lodged by Mr Belbouab against the rejection of his application Mr Belbouab on the other hand contended that the Community provisions relating to social security were applicable to rum.
               Pursuant to Article 177 of the EEC Treaty, by order of 7 December 1977 which was received at the Court on 1 February 1978, the German court therefore referred the following questions to the Court of Justice for a preliminary ruling:
               
                        ‘1.
                     
                     
                        Does the legal principle that legal rights under public law acquired by a person's own efforts may not be encroached upon by sovereign measures without compensation, which finds expression in German law in Article 14 of the Grundgesetz (Basic Law), apply in the law of the European Community?
                     
                  
                        2.
                     
                     
                        Do Regulations Nos 1408/71 and 574/72 violate that legal principle in so far as they contain no rule corresponding to Article 16 (2) of Regulation No 109/65?
                     
                  
                        3.
                     
                     
                        Or does Article 16 (2) of Regulation No 109/65 continue to apply, directly or by analogy, so that Articles 2 (1), 38 (1) and 94 (2) of Regulation No 1408/71 are to be interpreted as meaning that the insurance periods completed in France by an employed person before 19 January 1965 are to be taken into consideration if during such periods he was a French citizen and as such enjoyed the advantages conferred by Article 1 (a) in conjunction with Annex A to Regulation No 3 on social security for migrant workers, although at the time of applying for a German pension he possesses Algerian nationality?’
                     
                  
         
               2.
            
            
               in all three questions formulated by the court in Gelsenkirchen particular significance is attached to the provisions of Article 16 (2) of Regulation No 109/65 of the Council; as we have seen, mat provision is expressly referred to in the second and third questions but the first question also is essentially based on a particular interpretation which the court making the order for reference attributes to the article and paragraph in question. The content of Article 16 (2) is simple: as it had been decided that Algeria should be removed from the group of territories to which Regulation No 3 was applicable, Article 16 (2) secured the rights acquired pursuant to that regulation. Subsequently, however, Article 99 of Regulation No 1408/71 repealed Regulation No 3. For that reason the German insurance institution contends that Article 16 (2) of Regulation No 109/65 has lost its point of reference and no longer has any force; in consequence the insurance entitlement previously acquired by the plaintiff in France at the time when he was still a French national must be regarded as extinguished. The court making the order for reference however has doubts whether the said provision of Regulation No 109/65 may have remained in force and it states that if that is the case the insurance periods completed in France before 19 January 1965 by a worker in the position of the plaintiff must be taken into account.
               In my view the observation of the Commission that this interpretation of the provision in question is based upon a mistaken premise is correct. In indicating the territories and persons covered by Regulation No 3, Annex A to that regulation mentioned under the territory of France inter alia Algeria and under beneficiaries ‘persons of French nationality and nationals of the French Union’. Article 5 of Regulation No 109/65 amended that provision by deleting the reference to Algeria from French territories and restricting the term ‘Nationals’ to ‘persons of French nationality’. It is clear however that the amendment as regards territory does not affect the position of a worker, such as Mr Belbouab, who had worked in the French Metropolitan territory. The amendment with regard to ‘Nationals’ also does not affect the case in question however as the person concerned had never been a ‘national of the French Union’; in fact unul he acquired the nationality of the new Algerian State he had French nationality and he was therefore one of a category of people who was not affected by the amendment to Annex A to Regulation No 3.
               In general terms it should be said that the provisions of Article 16 (2) of Regulation No 109/65 which secured rights acquired before 19 January 1965 affected, from a territorial aspect, the rights acquired by a worker who until that date was subject to the social security legislation affecting the territory of Algeria and, on a personal plane, the rights acquired by nationals of the French Union under the aforesaid Regulation No 3 of the Council. From that it follows that the said provision did not affect workers in circumstances such as those of Mr Belbouab.
               Nor do I find surprising the fan that there existed no provision equivalent to that laid down for the former ‘nationals of the French Union’ applicable to French workers who, following the creation of an independent Algerian State, acquired the nationality of that Sute and for that same reason lost French nationality. It is sufficient to remember that in cases of this kind one is faced with a problem of a general and permanent nature — that of change of nationality of nationals of a Member Sute — and not a specific question such as that of the exclusion of nationals of the French Union from the benefit of the Community social security provisions. It should however be added that the fact that it is impossible to extend the provisions of Article 16 (2) of Regulation No 109/65 beyond its restricted scope does not mean that the preservation of acquired rights is denied to French workers who became Algerian in 1965. On the contrary it must be recognized that it would be illogical and in substance discriminatory for a worker who has lost French nationality and become Algerian to be placed, with regard to the application of Community social security provisions, in a less favourable position than those whose ties with the French Sute were looser as was the case for nationals of the French Union.
            
         
               3.
            
            
               The persons covered by the Community rules harmonizing social security schemes applicable to employed persons moving within the Community are defined in Article 2 (1) of Regulation No 1408/71. It is there provided that the regulation ‘shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as also to the members of their families and their survivors’.
               At first sight it might be thought that the fact that the above provision sets out the condition that the person should at present be or have been in the past subject to the (social security) legislation of one or more Member States while at the same time requiring that he should be at present a national of one of those Sutes signifies that the requirement must be satisfied at the time when the worker makes the application for social security benefits. However for the benefits applied for to be granted to the plaintiff, it is by no means necessary for the concept of the field of application of the regulation contained in the aforesaid Article 2 to be restricted to the moment at which the person concerned asks that the regulation be applied to him. The field of application is the same as the field of validity and therefore the limits as regards the persons covered, as laid down by the provision in question, are applicable to all the effects of the regulation and for the various times at which the regulation produces effects; they include in particular the time when the monthly insurance periods completed in the various Member States are aggregated. On the other hand there is a reason for the apparent contrast from a temporal point of view between the way in which the first requirement is fixed and that in which the second is laid down, namely the different nature of the various types of benefits: for some (sickness benefits for example) it is necessary for the worker to be subject at the present time to the laws of a Member Sute: for others (invalidity benefits, old-age benefits) it is sufficient for the worker to have been subject to the laws of one Member Sute. It may be added that if the aforesaid provision had included persons who ‘have been’ nationals of one of the Member States it would have extended the application of Community provisions to cover also workers who ad first become subject to the social security legislation of one or more Member States after losing the nationality of one of those States. The limitation of the application of these rules to persons who are nationals at the time at which they are subject to the social security legislation of a Member Sute has the advantage of avoiding such an absurdity.
               To that end the requirement of nationality laid down by Article 2 (1) of Regulation No 1408/71 must be related to the periods during which the individual was a worker and subject to the laws of the Member States to which he subsequently submits his request that the aforesaid regulation be applied to him. The fulfilment of the above- mentioned condition at the time when the work is carried out by a migrant worker is indeed necessary and sufficient in order to achieve the essential aim of the Community provisions in question: that is to give effect to the principle of freedom of movement for workers of the Member States of the Community. In the light of that consideration the requirement that the condition as to nationality must be satisfied pursuant to this provision at the time also when the worker submits his application for social security benefits may be ruled out. The aforesaid aim furnishes no justification for it.
               In support of the interpretation which I propose it may be useful to consider the anomalous consequences which would ensue from the interpretation proposed by the German social insurance institution to the effect that the condition concerning nationality must be fulfilled not at the time when the work is carried out and the insurance periods are being completed but rather at the time when the application for insurance benefits is made. If that were the case a foreign national who had worked in several Member States of the Community and who, shortly before his retirement, had acquired the nationality of a Member Sute would, for that reason alone, benefit retroactively from the Community rules as though he had always possessed the nationality of that Member Sute. Conversely a person who had worked in several Member States of the Community and was a national of one of those States but who, before being awarded the social security benefits accruing to him on the basis of the aggregation of his completed insurance periods, had acquired the nationality of a third Sute and had lost his original nationality, would be totally excluded from the Community provisions. I again say that such a result, apart from being clearly unfair, would certainly be contrary to the aims of the Community provisions which serve to ensure the effective freedom of movement within the Community of workers who are nationals of one of the Member States.
            
         
               4.
            
            
               What I have said so far is sufficient to clear up both the illusory problem of the application of Article 16 (2) of Regulation No 109/65 to circumstances such as those in the present instance, and the general objection raised by the German social insurance institution that Regulation No 1408/71 is inapplicable. There remains, however, one important question which cannot be avoided if we are to give a complete answer to the questions referred to us by the national court: the definition of the concept of ‘accrued rights’ wihtin the meaning of the Community provisions concerning the application of national social security schemes.
               I find that the concept is not drawn merely from the general principle of the protection of acquired rights: an express reference is made in Regulation No 1408/71 itself which provides in Article 94 (2):
               ‘All insurance periods, as also, where applicable, all periods of employment or residence completed under the legislation of a Member Sute before the date of entry into force of this regulation …, shall be taken into consideration for the purpose of determining entitlement to benefits (
                     2
                  ) in accordance with the provisions of this regulation.’
               This clearly implies that accrued rights are recognized and protected in the context of Community provisions on social security for migrant workers. I would mention moreover that in the present case the need to refer to the concept of ‘accrued rights’ ensues not only from the circumstance that the insurance periods completed by the plaintiff correspond in large measure to periods of employment before the entry into force of Regulation No 1408/71 but also, primarily, from the fact that when his nationality changed the plaintiff failed to satisfy one of the essential personal conditions for the application of that regulation and therefore the insurance periods completed by him from that time no longer fall within the scope of the Community previsions. In the circumstances the alternatives are as follows: should an accrued right be recognized only when, at the time of the change of nationality, the worker has already completed under the Community provisions a sufficient number of periods to confer on him theright to insurance benefits or should the concept of an accrued right be interpreted in a wider sense so as to include any insurance period completed under thé laws of one or more Member States as a migrant worker?
               According to the restrictive interpretation of that concept, in the present instance Mr Belbouab could claim entitlement on the basis of the insurance periods completed in France only if, by aggregation with the periods completed in Germany before he lost French nationality, they were sufficient to confer on him a right to benefit in one of the Member States. Under the wider interpretation however it must be held that the benefit of those periods has accrued in those two States in spite of the fact that they are insufficient to give rise to a right to benefits. The consequence of the latter solution would be that, as the plaintiff has continued to complete insurance periods as a national of a third State solely on the basis of the laws of one of the Member States to which he was previously subject, he may claim, pursuant to Community provisions, that that Sute must also take into consideration insurance periods completed in the other Member Sute at a time when he was subject to the Community provisions on the harmonization of national social security schemes.
               In my view the case-law of the Court of Justice contains a conclusive precedent on this point in favour of the second of the solutions set out above. The judgment of the Court of 26 June 1975 in Case 6/75 (Horst v Bundesknappschafs [1975] 1 ECR 823), with regard to the interpretation of Article 16 (2) of Regulation No 109/65 stated that ‘the concept “accrued rights” must be interpreted as meaning that as far as is necessary for the acquisition, maintenance or recovery of the right to benefit the insurance periods completed in Algeria before 19 January 1965 must be ta ken into consideration for determining the pensions referred to in Chapters 2 and 3 of Regulation No 3, even if the risk materializes and the claim for the pension is made after that date’.
               Thus the Court of Justice adopted the wider interpretation of the aforesaid concept so as to include the concept of ‘completed insurance periods’. In my view in accordance with the general principle of non-discrimination the scope of that interpretation should not be restricted to the specific transitional
               provisions in relation to which it was aid down but should apply on a general plane and thus in the context of the application of all the Community rules relating to social security schemes.
            
         
               5.
            
            
               In the present instance the worker concerned asked the German institution to apply to him the Community rules relating to insurance periods completed by him in France before he acquired Algerian nationality. As we have seen during the first 14 months of his employment in Germany he remained a French citizen; he was therefore a migrant worker within the meaning of Community law and as such he was subject to Regulation No 3. This gave him the right to have taken into account in Germany, in addition to the insurance period of 14 months already completed, the insurance periods which he had previously completed in France. In other words when he lost the nationality of a Member Sute the worker had already acquired the right, pursuant to Community rules, to have taken into account French periods of contribution for the subsequent application of the social security system of another Member State.
               Accordingly, in view of the wide interpretation of the concept of accrued rights upheld by the Court of justice, the plaintiff may justifiably claim that the German social insurance institution should take into consideration the period of insurance completed by him in France as a French national subject to the provisions of the former Regulation No 3 for the acquisition and determination of the pension applied for.
            
         
               6. 
            
            
               For the reasons set out above I propose that the Court of Justice should rule as follows in answer to the questions raised by the Sozialgericht Gelsenkirchen by order received at the Court on 1 February 1978:
               
                        1.
                     
                     
                        The requirement as to the nationality of one of the Member States referred to in Article 2 (1) of Regulation No 1408/71 of the Council must be satisfied during the periods of employment in relation to which insurance periods were completed for the purposes of the said regulation and not at the time when the worker applies to receive social insurance benefits.
                     
                  
                        2.
                     
                     
                        With regard to the case of a worker who is one of the persons covered by the Community rules relating to social security for migrant workers and who subsequently becomes the national of a third Sute and loses the nationality of a Member Sute, the concept of accrued rights — such as those referred to inter alia in Article 94 (2) of Regulation No 1408/71 of the Council — should be understood as including the right to have taken into account subsequently, in another Member Sute, the insurance periods completed by the worker in question in one or more Member States before the aforesaid change of nationality.
                     
                  
         (
            1
         )	Translared from the Italian
      (
            2
         )	Translator', note The word, used in the kakan text art “dimti acqu uisiu” which elsewhere in the regulation art translated as “accrued right”