P.204
BY JUDGMENT OF 5 JANUARY 1967 LODGED AT THE COURT ON 23 JANUARY 1967 THE COUR SUPERIEURE DE JUSTICE OF LUXEMBOURG, SITTING AS A COUR DE CASSATION, ASKED ' WHETHER ARTICLE 28(1)(B ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS IS APPLICABLE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF OLD-AGE PENSIONS PAYABLE BY THE CAISSE DE PENSION DES EMPLOYES PRIVES IN LUXEMBOURG, EVEN IN THOSE CASES WHERE ITS APPLICATION WOULD NOT LEAD TO THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT REFERRED TO IN ARTICLE 27(1 ) OF THE SAID REGULATION NO 3 AND, IN ADDITION, WHETHER, ARTICLE 28 OF REGULATION NO 3, IF IT IS REGARDED AS BEING APPLICABLE WITHOUT DISTINCTION EVEN IN CASES OTHER THAN THE ACQUISITION, MAINTENANCE OR RECOVERY OF A RIGHT TO BENEFIT, IS IN CONFORMITY WITH THE PROVISION UPON WHICH THE SAID ARTICLE 28 IS BASED, THAT IS TO SAY, ARTICLE 51 OF THE TREATY OF ROME OF 25 MARCH 1957 AND WHETHER IT IS THEREFORE FULLY VALID '.
P.205
THIS QUESTION RAISED IN THE CONTEXT OF A NATIONAL SYSTEM OF INSURANCE PERIODS CONFERRING THE RIGHT TO A PENSION AFTER PAYMENT OF CONTRIBUTIONS FOR A CONSIDERABLE TIME DEALS WITH ANY EFFECT ON THE WORKER'S RIGHTS OF INSURANCE PERIODS COMPLETED IN THREE MEMBER STATES LEADING FIRST TO THE ACQUISITION BY HIM IN LUXEMBOURG OF A RIGHT TO A PENSION SOLELY UNDER ITS NATIONAL LAW, SECONDLY TO THE ACQUISITION BY HIM IN BELGIUM SOLELY UNDER ITS NATIONAL LAW OF A RIGHT TO A PENSION PAYABLE ONLY WHEN HE CEASES TO BE GAINFULLY EMPLOYED AND FINALLY TO THE ACQUISITION BY HIM IN WEST GERMANY OF THE RIGHT TO A PENSION AS THE RESULT OF AGGREGATING INSURANCE PERIODS AS PROVIDED BY ARTICLE 27 OF REGULATION NO 3 .
THE JURISDICTION OF THE COURT
THE CAISSE DE PENSION DES EMPLOYES PRIVES DU GRAND-DUCHE CRITICIZES THE JUDGMENT OF THE SAID COURT, CHALLENGES THE JURISDICTION OF THE COURT OF JUSTICE TO GIVE A RULING ON THE QUESTION REFERRED AND MAINTAINS THAT IT IS A BELGIAN LAW AND NOT COMMUNITY LAW WHICH HAS TO BE INTERPRETED .
HOWEVER AS THE COURT HAS BEEN PROPERLY SEISED UNDER ARTICLE 177 OF THE TREATY OF A QUESTION RELATING TO THE INTERPRETATION AND VALIDITY OF REGULATION NO 3 OF THE COUNCIL, THE OBSERVATIONS OF THE CAISSE ARE IRRELEVANT .
NOR CAN EITHER THE FACT THAT THE BENEFICIARY COULD, BY CEASING TO BE GAINFULLY EMPLOYED, RECEIVE PAYMENT OF THE BELGIAN PENSION, NOR THE FACT THAT PERIODS OF WORK AND CONTRIBUTIONS WERE RESPECTIVELY COMPLETED AND PAID FOR THE MOST PART PRIOR TO THE ENTRY INTO FORCE OF THE COMMUNITY PROVISIONS RELATING TO THE FREE MOVEMENT OF WORKERS HAVE ANY SIGNIFICANCE .
UNDER ARTICLE 177 THE COURT IS NOT ASKED TO DECIDE A SPECIFIC CASE BUT TO GIVE A RULING ON THE INTERPRETATION OR VALIDITY OF COMMUNITY PROVISIONS WITH DUE REGARD TO THE FINDINGS OF THE NATIONAL COURT .
IT THEREFORE HAS JURISDICTION TO ANSWER THE QUESTION WHICH HAS BEEN RAISED .
P.206
THE INTERPRETATION AND THE VALIDITY OF ARTICLE 28(1 ) OF REGULATION NO 3
ARTICLE 28(1 ) OF REGULATION NO 3 WHICH THE COURT IS ASKED TO INTERPRET PROVIDES FOR THE DETERMINATION BY THE METHOD OF PROPORTIONAL CALCULATION ( SUBPARAGRAPH ( B )) OF THE ' BENEFITS WHICH MAY BE CLAIMED BY AN INSURED PERSON COVERED BY ARTICLE 27...OR HIS SURVIVORS '.
THE QUESTION WHICH HAS BEEN RAISED IS WHETHER THIS METHOD IS APPLICABLE IN A STATE WHERE THE RIGHT TO A PENSION HAS ALREADY BEEN ACQUIRED SOLELY UNDER ITS NATIONAL LEGISLATION AND WHERE CONSEQUENTLY THE AGGREGATION OF INSURANCE PERIODS PROVIDED BY ARTICLE 27(1 ) DOES NOT APPLY .
THE SUBSIDIARY QUESTION WHETHER THESE PROVISIONS ARE IN CONFORMITY WITH ARTICLE 51 OF THE TREATY, WHICH ARISES OUT OF THE MAIN QUESTION, CANNOT BE SEVERED FROM THE INTERPRETATION REQUESTED, SINCE REGULATION NO 3 HAS AS ITS BASIS, ITS FRAMEWORK AND ITS BOUNDS THE REQUIREMENTS OF ARTICLES 48 TO 51 OF THE TREATY THE IMPLEMENTATION OF WHICH IS ITS AIM . UNDER ARTICLE 51 OF THE TREATY THE REGULATIONS TO BE IMPLEMENTED IN APPLICATION OF THIS ARTICLE MUST ADOPT ' SUCH MEASURES...AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS ' BY INTRODUCING IN PARTICULAR A SYSTEM SECURING FOR THEM, THE ACQUISITION AND MAINTENANCE OF THE RIGHT TO BENEFIT .
THESE PROVISIONS, WHICH ARE INTENDED TO GIVE A MIGRANT WORKER MORE FAVOURABLE TREATMENT IN CERTAIN RESPECTS THAN HE WOULD RECEIVE IF HIS NATIONAL LAW ALONE WERE APPLIED IN HIS CASE BUT AT LEAST TO GUARANTEE HIS RIGHT TO A PENSION, CANNOT BE INTERPRETED IN A WAY WHICH CONFLICTS WITH HIS OBJECTIVE .
THE AIM OF ARTICLE 51 OF THE TREATY IS NOT TO SECURE IN THE FIRST INSTANCE THE EQUALIZATION OF BENEFITS BETWEEN SOCIAL SECURITY INSTITUTIONS BUT TO ENABLE A WORKER, WHO MAY LOSE THE BENEFIT OF A PERIOD OF CONTRIBUTIONS NOT LONG ENOUGH TO GIVE HIM THE RIGHT TO A PENSION, TO AVOID SUCH A LOSS BY AGGREGATION, ONLY THE CONCEPT OF WHICH IS LAID DOWN BY THIS ARTICLE . THE METHOD OF PROPORTIONAL CALCULATION WORKED OUT BY THE IMPLEMENTING REGULATIONS BASED ON THIS ARTICLE IS, AS IT WERE, THE COROLLARY OF AGGREGATION IN THOSE CASES WHERE AGGREGATION MAKES IT NECESSARY THAT THE AMOUNT OF THE BENEFIT SHOULD BE CALCULATED IN ACCORDANCE WITH A RULE, WITHOUT WHICH IT MIGHT BE THAT THIS AMOUNT COULD NOT BE DETERMINED . PROPORTIONAL CALCULATION IS THEREFORE AN INTEGRAL PART OF THE SYSTEM OF AGGREGATION . NO AUTHORITY CAN BE FOUND IN THE TREATY, WHICH DOES NOT MENTION THIS CONCEPT, FOR THE GENERAL APPLICATION OF PROPORTIONAL CALCULATION .
P.207
REGULATION NO 3 DID NOT PROVIDE FOR A COMMON SYSTEM OF SOCIAL SECURITY GIVING THE BENEFICIARY A SINGLE ENTITLEMENT BASED ON A SIMPLE APPORTIONMENT OF SUCH BENEFITS BETWEEN NATIONAL INSTITUTIONS, BUT ALLOWED SEPARATE SYSTEMS TO CONTINUE, CREATING SEPARATE CLAIMS AGAINST SEPARATE INSTITUTIONS AGAINST WHICH THE BENEFICIARY HAS DIRECT RIGHTS EITHER UNDER NATIONAL LAW ALONE OR NATIONAL LAW SUPPLEMENTED, IF NECESSARY BY THE SYSTEM OF THE AGGREGATION OF INSURANCE PERIODS PROVIDED FOR BY ARTICLE 51 OF THE TREATY .
IT IS DOUBTFUL FROM THE WORDING OF ARTICLE 28 WHETHER IT AIMS AT SEPARATING PROPORTIONAL CALCULATION FOR WHICH IT PROVIDES FROM THE AGGREGATION OF INSURANCE PERIODS UPON WHICH IT IS BASED AND AT MAKING IT GENERALLY APPLICABLE . THIS DOUBT CANNOT BE RESOLVED BY A LIBERAL INTERPRETATION WHICH WOULD MOREOVER BE INCOMPATIBLE WITH THE FRAMEWORK AND BOUNDS OF ARTICLE 51 OF THE TREATY .
IT IS ARGUED THAT, WITH THE INTENTION OF AVOIDING AN IMPROPER PLURALITY OF BENEFITS AND GUARANTEEING AN APPORTIONMENT OF PENSION OBLIGATIONS AMONG INSTITUTIONS LIABLE TO PAY BENEFITS, ARTICLE 28 MIGHT BE APPLIED IN ONE STATE WHERE ARTICLE 27 IS NOT APPLICABLE, WHEREAS IT HAS TO BE APPLIED IN ANOTHER STATE .
AS, HOWEVER, CUMULATION OF PENSIONS IS NOT PROHIBITED BY ANY PROVISION BUT IS ON THE CONTRARY EXPRESSLY PROVIDED FOR BY ARTICLE 11(1 ) OF REGULATION NO 3, IT DOES NOT OF ITSELF NECESSARILY AMOUNT TO AN ABUSE . THE ACQUISITION OF A RIGHT TO BENEFIT, CONFERRED SOLELY BY VIRTUE OF THE NATIONAL LAW OF ONE STATE AND BASED ON CONTRIBUTION PERIODS COMPLETED IN THAT STATE, IN ADDITION TO ANOTHER BENEFIT ACQUIRED IN ANOTHER STATE BY MEANS OF AGGREGATION IN A CASE WHERE, AS REQUIRED BY ARTICLE 27, THE PERIODS OF INSURANCE ' DO NOT OVERLAP ', DOES NOT CONSTITUTE AN ADVANTAGE TO COMMUNITY LAW . THE ADVANTAGE OF AGGREGATION IS THE ACQUISITION OF A RIGHT TO A PENSION WHICH WOULD NOT OTHERWISE ARISE, THE PENSION ACQUIRED IN THIS WAY BEING CALCULATED IN PROPORTION ONLY TO THE INSURANCE PERIOD COMPLETED IN THE MEMBER STATE IN QUESTION, WITHOUT TAKING INTO ACCOUNT IN THE CALCULATION INSURANCE PERIODS COMPLETED IN OTHER MEMBER STATES .
IN PENSION SYSTEMS BASED ON INSURANCE PERIODS WHERE A RIGHT TO A PENSION IS ACQUIRED AFTER THE COMPLETION OF A MINIMUM CONTRIBUTION PERIOD OF A SUBSTANTIAL LENGTH OF TIME, THE ADDITION OF THIS BENEFIT TO ANOTHER BENEFIT DIRECTLY ACQUIRED IN ANOTHER MEMBER STATE SOLELY UNDER ITS NATIONAL LAW AND BASED ON INSURANCE PERIODS COMPLETED IN THAT STATE ALONE CANNOT BE REGARDED AS AN IMPROPER PLURALITY OF BENEFITS .
P.208
A DIFFERENT INTERPRETATION OF THE PROVISIONS IN QUESTION MIGHT, IN CIRCUMSTANCES SUCH AS THOSE IN THE PRESENT CASE, RESULT ON THE ONE HAND IN THE EXCLUSION OF ONE OF THOSE PERIODS BY REASON OF A RULE OF NATIONAL LAW FORBIDDING THE SIMULTANEOUS RECEIPT OF BOTH A PENSION AND REMUNERATION FOR EMPLOYMENT AND, ON THE OTHER HAND, IN ALLOWING THE SAID PERIOD TO BE TAKEN INTO ACCOUNT IN ANOTHER STATE, WHERE THE RIGHT TO A PENSION HAS BEEN ACQUIRED SOLELY UNDER NATIONAL LAW, ON THE GROUND THAT AGGREGATION AND PROPORTIONAL CALCULATION WERE NECESSARY IN A THIRD STATE .
THESE CONSIDERATIONS ARE ALSO VALID EVEN WHERE THE BENEFIT WHICH THE INSURED PERSON OBTAINS AS A RESULT OF THE APPLICATION OF ARTICLE 27 IN ONE STATE IS HIGHER THAN THE LOSS WHICH HE WOULD SUFFER IF ANOTHER STATE WERE TO APPLY ARTICLE 28 WITHOUT THE NEED OF RECOURSE TO ARTICLE 27 .
THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH HAS SUBMITTED ITS OBSERVATIONS ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE COUR SUPERIEURE DE JUSTICE OF LUXEMBOURG, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE JUDGMENT OF 5 JANUARY 1967 OF THE COUR SUPERIEURE DE JUSTICE OF LUXEMBOURG SITTING AS A COUR DE CASSATION, HEREBY RULES :
1 . THE INTRODUCTORY PROVISIONS AND SUBPARAGRAPH ( B ) OF ARTICLE 28(1 ) OF REGULATION NO 3 ARE NOT APPLICABLE FOR THE PURPOSES OF DETERMINING THE AMOUNT OF AN OLD - AGE PENSION BASED ON A CONTRIBUTION PERIOD AND ACQUIRED SOLELY UNDER NATIONAL LAW WITHOUT RECOURSE TO ARTICLE 27, UNLESS THE SAME CONTRIBUTION PERIOD IS USED AT THE SAME TIME TO DETERMINE THE AMOUNT OF OTHER PENSIONS IN OTHER MEMBER STATES;
2 . THE DECISION AS TO COSTS IN THESE PROCEEDINGS IS A MATTER FOR THE COUR SUPERIEURE OF LUXEMBOURG .
