1 BY ORDER OF 15 NOVEMBER 1973, REGISTERED AT THE COURT ON 17 DECEMBER, THE SOZIALGERICHT, FREIBURG, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, ASKED WHETHER THE FIRST SENTENCE OF ARTICLE 28 ( 3 ) OF REGULATION NO 3 OF 25 SEPTEMBER 1958 ( OJ NO 30 OF 16 DECEMBER 1958, P . 561/58 ) AND ARTICLE 13 ( 1 ) ( B ) AND ( 5 ) OF REGULATION NO 4 OF THE SAME DATE ( OJ NO 30 OF 16 DECEMBER 1958, P . 597/58 ), BOTH CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, ARE COMPATIBLE WITH ARTICLE 51 OF THE TREATY .
2 THIS QUESTION IS RAISED IN THE CONTEXT OF AN ACTION RELATING TO THE DETERMINATION OF THE RIGHTS WITH REGARD TO OLD AGE PENSIONS OF A GERMAN CITIZEN WHO, HAVING WORKED SUCCESSIVELY IN THE FEDERAL REPUBLIC OF GERMANY AND IN FRANCE, COMPLETED 437 MONTHS' INSURANCE IN THE FIRST MEMBER STATE AND 138 IN THE SECOND, AND WHO, IN ADDITION, CONTINUED TO PAY VOLUNTARY CONTRIBUTIONS IN GERMANY DURING THE PERIODS IN WHICH HE WORKED IN FRANCE .
IN SPITE OF THE FACT THAT IN GERMANY A RIGHT TO A PENSION, HAVING REGARD TO THE PERIODS COMPLETED THERE, WAS ACQUIRED WITHOUT ITS BEING NECESSARY TO TAKE INTO ACCOUNT THOSE COMPLETED IN FRANCE, THE GERMAN INSURANCE ORGANIZATION :
1 . AGGREGATED THE GERMAN AND FRENCH PERIODS FOR THE CALCULATION OF THIS PENSION;
2 . IN DOING THIS, REFUSED TO TAKE INTO ACCOUNT THE PERIODS OF VOLUNTARY CONTRIBUTION;
3 . UNDERTOOK AN APPORTIONMENT OF THIS PENSION; AND
4 . IN VIEW OF THE FACT THAT THE GERMAN AND FRENCH PENSIONS TOGETHER, AFTER APPORTIONMENT, DID NOT ATTAIN THE LEVEL OF THE PENSION WHICH WOULD HAVE BEEN GRANTED ON THE BASIS OF GERMAN LEGISLATION ALONE, GRANTED A SUPPLEMENT TO BRING THEM TO THAT LEVEL .
TO JUSTIFY THIS METHOD OF CALCULATION, THE ORGANIZATION RELIES, SO FAR AS AGGREGATION, APPORTIONMENT AND THE GRANT OF A SUPPLEMENT ARE CONCERNED, ON ARTICLE 28 ( 3 ) OF REGULATION NO 3 AND, SO FAR AS THE REFUSAL TO TAKE ACCOUNT OF THE VOLUNTARY CONTRIBUTIONS IS CONCERNED, ON ARTICLE 13 ( 1 ) ( B ) AND ( 5 ) OF REGULATION NO 4 .
3 ACCORDING TO ARTICLE 28 ( 3 ) OF REGULATION NO 3 : 'IF THE AMOUNT OF BENEFIT WHICH MAY BE CLAIMED INDEPENDENTLY OF THE PROVISIONS OF ARTICLE 27, IN RESPECT OF THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE, IS GREATER THAN THE TOTAL BENEFITS RESULTING FROM IMPLEMENTING THE FOREGOING PARAGRAPHS OF THIS ARTICLE, THE PERSON CONCERNED SHALL BE ENTITLED TO RECEIVE FROM THE INSTITUTION OF THAT STATE A SUPPLEMENT EQUAL TO THE DIFFERENCE '.
ACCORDING TO ARTICLE 13 ( 1 ) ( B ) OF REGULATION NO 4, AGGREGATION OF INSURANCE PERIODS REFERRED TO IN ARTICLE 27 OF REGULATION NO 3 SHALL BE GOVERNED BY THE RULE THAT : 'WHEN A COMPLETED INSURANCE PERIOD, BY WAY OF COMPULSORY INSURANCE UNDER THE LEGISLATION OF ONE MEMBER STATE, COINCIDES WITH A COMPLETED INSURANCE PERIOD BY WAY OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE, ONLY THE FORMER SHALL BE TAKEN INTO ACCOUNT '.
FINALLY, ACCORDING TO ARTICLE 13 ( 5 ) OF THE SAME REGULATION : 'IF BY VIRTUE OF SUBPARAGRAPH ( 1 ) ( B ) OF THIS ARTICLE, COMPLETED INSURANCE PERIODS BY WAY OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE UNDER THE LEGISLATION OF A MEMBER STATE COVERING INVALIDITY, OLD-AGE/DEATH ( PENSIONS ) INSURANCE ARE NOT COUNTED, THE RELEVANT CONTRIBUTIONS FOR SUCH PERIODS SHALL BE REGARDED AS ENTITLING TO INCREASE OF THE BENEFITS DUE UNDER THE SAID LEGISLATION . IF SUCH LEGISLATION PROVIDES FOR SUPPLEMENTARY INSURANCE, THE SAID CONTRIBUTIONS SHALL BE TAKEN INTO ACCOUNT IN CALCULATING THE BENEFITS DUE UNDER SUCH INSURANCE '.
4 FOR THE NATIONAL COURT IT IS ESSENTIALLY A QUESTION OF WHETHER THE APPLICATION WHICH HAS BEEN MADE OF THE PROVISIONS RELIED ON IS BASED ON AN ACCURATE INTERPRETATION OF THEIR TENOR AND IF SO WHETHER THESE PROVISIONS ARE COMPATIBLE WITH ARTICLE 51 OF THE TREATY .
5 THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY FOR MIGRANT WORKERS HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY .
ARTICLE 51 REQUIRES THE COUNCIL TO ADOPT IN THE FIELD OF SOCIAL SECURITY MEASURES AS ARE 'NECESSARY' TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS, PROVIDING FOR THE AGGREGATION, IN PARTICULAR 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 .
THE AIM OF ARTICLES 48 TO 51 WOULD NOT BE ATTAINED IF, AS A CONSEQUENCE OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT, WORKERS WERE TO LOSE ADVANTAGES IN THE FIELD OF SOCIAL SECURITY GUARANTEED TO THEM IN ANY EVENT BY THE LAWS OF A SINGLE MEMBER STATE .
6 ARTICLE 51 OF THE TREATY DEALS ESSENTIALLY WITH THE CASE IN WHICH THE LAWS OF ONE MEMBER STATE DO NOT BY THEMSELVES ALLOW THE PERSON CONCERNED THE RIGHT TO BENEFITS BY REASON OF THE INSUFFICIENT NUMBER OF PERIODS COMPLETED UNDER ITS LAWS, OR ONLY ALLOW HIM BENEFITS WHICH ARE LESS THAN THE MAXIMUM .
TO REMEDY THIS SITUATION IT PROVIDES, IN RESPECT OF A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LAWS OF TWO OR MORE MEMBER STATES, FOR AGGREGATION OF THE INSURANCE PERIODS COMPLETED UNDER THE LAWS OF EACH OF SUCH STATES .
THE AGGREGATION AND APPORTIONMENT PROVIDED FOR BY ARTICLES 27 AND 28 OF REGULATION NO 3 CANNOT THEREFORE BE CARRIED OUT IF THEIR EFFECT IS TO DIMINISH THE BENEFITS WHICH THE PERSON CONCERNED MAY CLAIM BY VIRTUE OF THE LAWS OF A SINGLE MEMBER STATE ON THE BASIS SOLELY OF THE INSURANCE PERIODS COMPLETED UNDER THOSE LAWS, ALWAYS PROVIDED THAT THIS METHOD CANNOT LEAD TO A DUPLICATION OF BENEFITS FOR ONE AND THE SAME PERIOD .
7 AGGREGATION IS NOT APPLIED EVEN IN CASES WHERE INSURANCE PERIODS COMPLETED IN THE STATE CONCERNED COINCIDE WITH INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE .
IN FACT, IF THE LAWS OF ONE MEMBER STATE ALLOW SUCH A DOUBLE AFFILIATION THERE ARE NO GROUNDS BASED ON THE OBJECTIVES OF ARTICLE 51 WHICH MAKE IT PERMISSIBLE TO REFUSE TO A WORKER WHO DOES NOT NEED TO HAVE RECOURSE TO REGULATIONS NOS 3 AND 4 THE ADVANTAGES OF THE APPLICATION IN TOTO OF THE LAWS OF THAT STATE .
8 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT ARTICLE 28 ( 3 ) OF REGULATION NO 3, TO THE EXTENT TO WHICH IT IMPLIES AN AGGREGATION OF PERIODS AND A CONSECUTIVE APPORTIONMENT, RESULTING IN THE GRANT OF SEVERAL BENEFITS PAID BY THE DIFFERENT MEMBER STATES, THE TOTAL AMOUNT OF WHICH IS HOWEVER LESS THAN THAT OF THE BENEFIT TO WHICH THE WORKER IS ALREADY ENTITLED BY VIRTUE SOLELY OF THE LAWS OF ONE MEMBER STATE, IS INCOMPATIBLE WITH ARTICLE 51 AND MOREOVER DEVOID OF ANY PURPOSE, TAKING INTO ACCOUNT THE ENTITLEMENT OF THE WORKER CONCERNED TO THE MAXIMUM BENEFIT ON THE BASIS SOLELY OF THE LAWS OF THE MEMBER STATE CONCERNED .
9 ARTICLE 13 ( 1 ) ( B ) AND ( 5 ) OF REGULATION NO 4, IMPLEMENTING ARTICLES 27 AND 28 OF REGULATION NO 3, LAYS DOWN CERTAIN RULES FOR THE CALCULATION OF THE AGGREGATION OF PERIODS - WHEN THIS IS NECESSARY FOR THE ACQUISITION OF THE RIGHT OR THE ENJOYMENT OF THE MAXIMUM BENEFIT - PARTICULARLY IN THE EVENT OF A PERIOD OF COMPULSORY PAYMENT OF CONTRIBUTIONS IN ONE MEMBER STATE COINCIDING WITH A PERIOD OF VOLUNTARY PAYMENT OF CONTRIBUTIONS IN ANOTHER .
THE PROVISIONS OF THE SAID ARTICLE 13 DO NOT CONCERN CASES LIKE THE PRESENT ONE IN WHICH THE RIGHT TO A MAXIMUM PENSION EXISTS WITHOUT RECOURSE TO INSURANCE PERIODS IN ANOTHER MEMBER STATE .
THE QUESTION RELATING TO THE VALIDITY OF THESE PROVISIONS IS THEREFORE DEVOID OF OBJECT, AND EXAMINATION OF IT HAS NOT REVEALED ANY FACTORS CAPABLE OF AFFECTING THEIR VALIDITY .
10 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE SOZIALGERICHT, FREIBURG, BY ORDER OF 15 NOVEMBER 1973, HEREBY RULES
1 . ARTICLE 28 ( 3 ) OF REGULATION NO 3, TO THE EXTENT TO WHICH IT IMPLIES AN AGGREGATION OF PERIODS AND A CONSECUTIVE APPORTIONMENT, RESULTING IN THE GRANT OF SEVERAL BENEFITS PAID BY DIFFERENT MEMBER STATES, THE TOTAL AMOUNT OF WHICH IS HOWEVER LESS THAN THAT OF THE BENEFIT TO WHICH THE WORKER IS ALREADY ENTITLED BY VIRTUE SOLELY OF THE LAWS OF ONE MEMBER STATE, IS INCOMPATIBLE WITH ARTICLE 51 AND ACCORDINGLY TO THAT EXTENT VOID .
2 . THE PROVISIONS OF ARTICLE 13 ( 1 ) ( B ) AND ( 5 ) OF REGULATION NO 4 DO NOT CONCERN CASES IN WHICH THE RIGHT TO A MAXIMUM PENSION EXISTS WITHOUT RECOURSE TO INSURANCE PERIODS IN ANOTHER MEMBER STATE; THE QUESTION RELATING TO THE VALIDITY OF THESE PROVISIONS IS THEREFORE DEVOID OF OBJECT .
