1 BY JUDGMENT OF 11 JUNE 1975 RECEIVED AT THE COURT ON 2 JULY 1975 THE COUR DE CASSATION OF FRANCE REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 28 OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .
2 THIS QUESTION HAS BEEN RAISED IN THE CONTEXT OF PROCEEDINGS CONCERNING THE CALCULATION BY THE COMPETENT FRENCH INSTITUTION OF THE INVALIDITY PENSION OF A FRENCH NATIONAL, THE APPELLANT IN THE MAIN ACTION, WHO HAD WORKED FIRST IN FRANCE, FROM 1 DECEMBER 1931 TO 30 SEPTEMBER 1944, AND THEN IN THE FEDERAL REPUBLIC OF GERMANY, FROM 1 OCTOBER 1944 TO 12 DECEMBER 1952 .
3 AT THIS LATTER DATE THE GERMAN INSURANCE ORGANIZATION PAID THE WORKER, WHO HAD BECOME DISABLED, SICKNESS INSURANCE BENEFITS AND THEN, AS FROM 1 AUGUST 1954, AWARDED HIM AN INVALIDITY PENSION CALCULATED PRO RATA WITH THE INSURANCE PERIODS COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY .
4 ON THE BASIS OF REGULATIONS NOS 3 AND 4 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, THE APPELLANT IN THE MAIN ACTION REQUESTED THE CAISSE PRIMAIRE D'ASSURANCE MALADIE DU HAVRE TO PAY HIM AN INVALIDITY PENSION ON THE BASIS OF HIS FORMER EMPLOYMENT IN FRANCE .
5 THE FRENCH LEGISLATION ON QUESTIONS OF INVALIDITY IS OF TYPE A, THAT IS, LEGISLATION UNDER WHICH BENEFITS ARE CALCULATED WITHOUT REFERENCE TO THE DURATION OF COMPLETED INSURANCE PERIODS .
6 THE AMOUNT OF THE PENSION IS EQUAL TO A PERCENTAGE, WHICH VARIES ACCORDING TO THE DEGREE OF INVALIDITY, OF THE AVERAGE ANNUAL EARNINGS OF THE WORKER DURING THE LAST TEN INSURANCE YEARS PRECEDING THE INTERRUPTION OF WORK ( THE TEN BEST YEARS COMPLETED AFTER 31 DECEMBER 1947, ACCORDING TO A DECREE OF 1972 ).
7 AN INVALIDITY PENSION IS AWARDED TO A WORKER WHO HAS BEEN AFFILIATED FOR TWELVE MONTHS ON THE FIRST DAY OF THE MONTH DURING WHICH THE INTERRUPTION OF WORK FOLLOWED BY THE INVALIDITY OCCURS AND WHO HAS, IN ADDITION, WORKED FOR A CERTAIN MINIMUM PERIOD BEFORE THE MATERIALIZATION OF THE RISK .
8 THE RESPONDENT IN THE MAIN ACTION FOUND THAT THE INDIVIDUAL CONCERNED DID NOT SATISFY THE CONDITIONS NECESSARY FOR THE AWARD OF SUCH A PENSION AND TOOK INTO ACCOUNT, FOR THE PURPOSES OF THE ACQUISITION OF A RIGHT THERETO, THE INSURANCE PERIODS COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY .
9 IT THEREFORE AGGREGATED THE FRENCH AND GERMAN INSURANCE PERIODS, MAKING A TOTAL OF 77 QUARTERLY PERIODS OF WHICH 44 WERE COMPLETED IN FRANCE, CALCULATED THE AMOUNT OF THE PENSION FOR ACCOUNTING PURPOSES IN ACCORDANCE WITH ARTICLE 28 ( 1 ) ( C ) OF REGULATION NO 3 AND AWARDED THE INDIVIDUAL CONCERNED A PENSION CALCULATED PRO RATA WITH THE INSURANCE PERIODS COMPLETED IN FRANCE .
10 THE APPELLANT IN THE MAIN ACTION CHALLENGED THE LEGALITY OF THAT DECISION ON THE GROUNDS THAT IT INFRINGED ARTICLES 27 AND 28 OF REGULATION NO 3 AND, IN PARTICULAR, THAT IT APPLIED ARTICLE 28 ( 1 ) ( B ) AND ( C ) IN A CUMULATIVE MANNER .
11 IN THE OPINION OF THE APPELLANT, ALTHOUGH A PRO RATA CALCULATION IS POSSIBLE IN THE SITUATION REFERRED TO IN SUBPARAGRAPH ( B ), THAT IS, WHERE THE CRITERION ADOPTED FOR THE AWARD OF THE PENSION IS BASED UPON THE DURATION OF INSURANCE, IT IS NOT POSSIBLE IN THE SITUATION REFERRED TO IN SUBPARAGRAPH ( C ), WHERE THE LEGISLATION OF THE STATE IN WHICH THE PENSION IS CLAIMED BASES THE CALCULATION OF BENEFITS ON CRITERIA OTHER THAN THE DURATION OF THE INSURANCE PERIODS .
12 THE COUR DE CASSATION ASKS 'WHETHER IN CIRCUMSTANCES IN WHICH FOR AN INSURED PERSON WHO HAS BEEN SUCCESSIVELY SUBJECT TO THE LEGISLATION OF TWO MEMBER STATES TO ACQUIRE A RIGHT TO AN INVALIDITY PENSION IT WAS NECESSARY TO TAKE INTO ACCOUNT THE INSURANCE PERIODS COMPLETED IN ONE OF THESE STATES AS SUCH INSURED PERSON DID NOT FULFIL THE CONDITIONS LAID DOWN IN THE OTHER FOR ENTITLEMENT THERETO AND WHERE, UNDER THE LEGISLATION OF THIS LATTER STATE, THE CALCULATION OF BENEFITS IS BASED UPON AN AVERAGE WAGE OR AN AVERAGE CONTRIBUTION, WITHOUT REGARD TO THE LENGTH OF THE PERIOD OF EMPLOYMENT, THE PRO RATA CALCULATION MUST BE MADE AFTER AGGREGATION OF ALL THE INSURANCE PERIODS, AS PROVIDED IN ARTICLE 28 ( 1 ) ( B ) OF REGULATION NO 3, AS OCCURS IN THE OTHER MEMBER STATE IN ORDER TO SUPPLEMENT THE BENEFITS AWARDED BY THAT STATE ON THE BASIS OF THE INSURANCE PERIODS, OR WHETHER THE ENTIRE PENSION MUST BE AWARDED WITHOUT MAKING ANY PRO RATA CALCULATION '.
13 ARTICLE 27 ( 1 ) OF REGULATION NO 3 PROVIDES THAT : 'FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT, WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED IN SO FAR AS THEY DO NOT OVERLAP '.
14 ARTICLE 28 ( 1 ) ( A ) IS WORDED AS FOLLOWS : 'THE INSTITUTION OF EACH OF THE MEMBER STATES SHALL, IN ACCORDANCE WITH ITS OWN LEGISLATION, DETERMINE WHETHER THE PERSON CONCERNED SATISFIES THE CONDITIONS FOR ENTITLEMENT TO THE BENEFITS PRESCRIBED IN THAT LEGISLATION TAKING INTO ACCOUNT THE AGGREGATION OF PERIODS, AS SET OUT IN THE PRECEDING ARTICLE '.
15 SUBPARAGRAPH ( B ) IS WORDED AS FOLLOWS : 'WHERE THE RIGHT IS ACQUIRED BY VIRTUE OF SUBPARAGRAPH ( A ) ABOVE, THE SAID INSTITUTION SHALL, FOR ACCOUNTING PURPOSES, DETERMINE THE AMOUNT OF BENEFIT TO WHICH THE PERSON CONCERNED WOULD BE ENTITLED IF ALL INSURANCE PERIODS OR ASSIMILATED PERIODS, AGGREGATED IN ACCORDANCE WITH THE PROCEDURES SET OUT IN THE PRECEDING ARTICLE, HAD BEEN COMPLETED EXCLUSIVELY UNDER ITS OWN LEGISLATION; TAKING THAT AMOUNT AS A BASIS, THE INSTITUTION SHALL DETERMINE THE AMOUNT DUE PRO RATA WITH THE LENGTH OF THE PERIODS COMPLETED UNDER THE SAID LEGISLATION, BEFORE THE RISK MATERIALIZED, AS COMPARED WITH THE TOTAL LENGTH OF THE PERIODS COMPLETED UNDER THE LEGISLATION OF ALL THE MEMBER STATES CONCERNED BEFORE THE RISK MATERIALIZED; THIS AMOUNT SHALL CONSTITUTE THE BENEFIT PAYABLE TO THE PERSON CONCERNED BY THE INSTITUTION IN QUESTION '.
16 SUBPARAGRAPH ( C ) STATES : 'WHERE, UNDER THE LEGISLATION OF ONE MEMBER STATE, BENEFITS ARE CALCULATED ON THE BASIS OF AN AVERAGE WAGE, AN AVERAGE CONTRIBUTION OR AN AVERAGE INCREASE, OR ON THE RATIO BETWEEN THE CLAIMANT'S GROSS WAGE DURING THE COMPLETED CONTRIBUTION PERIODS AND THE AVERAGE GROSS WAGE OF ALL INSURED PERSONS OTHER THAN APPRENTICES, SUCH AVERAGE FIGURES OR RATIOS SHALL BE DETERMINED FOR THE CALCULATION OF THE BENEFITS PAYABLE BY THE INSTITUTION OF THAT STATE, TAKING INTO ACCOUNT ONLY THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF THE SAID MEMBER STATE, OR TAKING INTO ACCOUNT THE GROSS WAGE OF THE PERSON CONCERNED IN RESPECT OF SUCH PERIODS ...'.
17 ACCORDING TO THE FIRST WORDS OF SUBPARAGRAPH ( B ) A PRO RATA CALCULATION SHALL BE CARRIED OUT IN EVERY CASE IN WHICH THE RIGHT TO A PENSION IS ACQUIRED UNDER SUBPARAGRAPH ( A ); ITS PURPOSE IS THEREFORE TO DETERMINE THE AMOUNT OF THE BENEFIT, THE RIGHT TO WHICH WOULD NOT HAVE BEEN ACQUIRED WITHOUT THE PROCESS OF AGGREGATION .
18 ON THE OTHER HAND, THE SOLE PURPOSE OF SUBPARAGRAPH ( C ) IS TO FREE THE RELEVANT INSTITUTIONS OF MEMBER STATES IN WHICH A PENSION MUST BE CALCULATED ON THE BASIS OF AN AVERAGE WAGE, AN AVERAGE CONTRIBUTION OR AN AVERAGE INCREASE, OF THE OBLIGATION TO TAKE INTO ACCOUNT, IN ORDER TO DETERMINE THAT AVERAGE, THE WAGES RECEIVED, THE CONTRIBUTIONS PAID OR THE INCREASES GRANTED IN ANOTHER MEMBER STATE .
19 AS A RESULT, THAT SUBPARAGRAPH DOES NOT DEPART FROM THE RULE LAID DOWN IN THE PRECEDING SUBPARAGRAPHS, ACCORDING TO WHICH THE COROLLARY OF THE AGGREGATION OF INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES IN QUESTION IS A PRO RATA CALCULATION BY EACH OF THE RELEVANT INSTITUTIONS OF THE AMOUNTS OF THE BENEFITS .
20 THEREFORE, THE ANSWER TO BE GIVEN TO THE QUESTION REFERRED TO THE COURT MUST BE THAT IN CIRCUMSTANCES IN WHICH FOR AN INSURED PERSON WHO HAS BEEN SUCCESSIVELY SUBJECT TO THE LEGISLATION OF TWO MEMBER STATES TO ACQUIRE A RIGHT TO AN INVALIDITY PENSION IT WAS NECESSARY TO TAKE INTO ACCOUNT THE INSURANCE PERIODS COMPLETED IN ONE OF THESE STATES AS SUCH INSURED PERSON DID NOT FULFIL THE CONDITIONS LAID DOWN IN THE OTHER FOR ENTITLEMENT THERETO AND WHERE, UNDER THE LEGISLATION OF THIS LATTER STATE, THE CALCULATION OF BENEFITS IS BASED UPON AN AVERAGE WAGE OR AN AVERAGE CONTRIBUTION, WITHOUT REGARD TO THE LENGTH OF THE PERIOD OF EMPLOYMENT, THE PRO RATA CALCULATION MUST BE MADE AFTER AGGREGATION OF ALL THE INSURANCE PERIODS, AS PROVIDED IN ARTICLE 28 ( 1 ) ( B ) OF REGULATION NO 3 .
21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, THESE PROCEEDINGS ARE IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN REPLY TO THE QUESTION REFERRED TO IT BY THE COUR DE CASSATION OF FRANCE IN ACCORDANCE WITH THE JUDGMENT OF THAT COURT OF 11 JUNE 1975, HEREBY RULES :
IN CIRCUMSTANCES IN WHICH FOR AN INSURED PERSON WHO HAS BEEN SUCCESSIVELY SUBJECT TO THE LEGISLATION OF TWO MEMBER STATES TO ACQUIRE A RIGHT TO AN INVALIDITY PENSION IT IS NECESSARY TO TAKE INTO ACCOUNT THE INSURANCE PERIODS COMPLETED IN ONE OF THESE STATES AS SUCH INSURED PERSON DOES NOT FULFIL THE CONDITIONS LAID DOWN IN THE OTHER FOR ENTITLEMENT THERETO AND WHERE, UNDER THE LEGISLATION OF THIS LATTER STATE, THE CALCULATION OF BENEFITS IS BASED UPON AN AVERAGE WAGE OR AN AVERAGE CONTRIBUTION, WITHOUT REGARD TO THE LENGTH OF THE PERIOD OF EMPLOYMENT, THE PRO RATA CALCULATION MUST BE MADE AFTER AGGREGATION OF ALL THE INSURANCE PERIODS, AS PROVIDED IN ARTICLE 28 ( 1 ) ( B ) OF REGULATION NO 3 .
