Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1971/R2771.html
Cite as: [1971] EUECJ R-27/71

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61971J0027
Judgment of the Court of 10 November 1971.
August Keller v Caisse régionale d'assurance vieillesse des travailleurs salariés de Strasbourg.
Reference for a preliminary ruling: Commission de première instance du contentieux de la sécurité sociale et de la mutualité sociale agricole du Bas-Rhin - France.
Old-age pension.
Case 27-71.
European Court reports 1971 Page 00885
Danish special edition 1971 Page 00235
Greek special edition 1969-1971 Page 00973
Portuguese special edition 1971 Page 00325

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SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE PENSIONS - RIGHT ACQUIRED BY VIRTUE OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE - REDUCTION BY MEANS OF AGGREGATION AND PRO RATA CALCULATION - PROHIBITED EXCEPT IN THE CASE OF OVERLAPPING OF BENEFITS FOR THE SAME PERIOD
( REGULATION NO 3 OF THE COUNCIL, ARTICLES 27 AND 28 )

WHEN IN ONE MEMBER STATE THE RIGHT TO AN OLD-AGE PENSION ARISES BY REASON OF INSURANCE PERIODS COMPLETED SOLELY UNDER THE LEGISLATION OF THAT STATE WITHOUT ITS BEING NECESSARY TO REFER TO PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES, THE COMPETENT INSTITUTION OF THE FIRST STATE IS NOT EMPOWERED TO APPLY ARTICLES 27 AND 28 OF REGULATION NO 3 IN ORDER TO REDUCE THE BENEFIT WHICH IT IS OBLIGED TO PAY BY VIRTUE OF ITS OWN LEGISLATION, AT LEAST IN SO FAR AS THAT BENEFIT DOES NOT RELATE TO PERIODS WHICH HAVE ALREADY BEEN TAKEN INTO ACCOUNT IN THE CALCULATION OF THE AMOUNT OF THE BENEFIT PAID BY THE COMPETENT INSTITUTION OF ANOTHER STATE .

IN CASE 27/71
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN SITTING IN STRASBOURG, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
AUGUST KELLER, RESIDING IN GUNDELFINGEN ( FEDERAL REPUBLIC OF GERMANY ),
AND
CAISSE REGIONALE D' ASSURANCE VIEILLESSE DES TRAVAILLEURS SALARIES DE STRASBOURG,

ON THE INTERPRETATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

1 BY DECISION OF 28 APRIL 1971, RECEIVED AT THE COURT ON 8 JUNE 1971, THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE DU BAS-RHIN SUBMITTED, UNDER ARTICLE 177 OF THE EEC TREATY, A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND OF ARTICLE 51 OF THE EEC TREATY, IN CONNEXION WITH THE METHOD OF DETERMINING OLD-AGE PENSIONS .
2 IT APPEARS FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION HAS BEEN AFFILIATED SUCCESSIVELY TO GERMAN AND FRENCH SOCIAL INSURANCE SCHEMES, HAVING COMPLETED 185 QUARTERLY PERIODS IN THIS MANNER, 101 IN GERMANY AND 84 IN FRANCE .
3 IT IS CLEAR FROM THESE FACTS THAT ON THE BASIS OF THE PAYMENTS EFFECTED IN FRANCE ALONE HE COULD HAVE CLAIMED A " PROPORTIONAL " OLD-AGE PENSION AS DEFINED IN ARTICLE L 335 OF THE FRENCH CODE DE LA SECURITE SOCIALE .
4 DESPITE THIS THE CAISSE REGIONALE D' ASSURANCE VIEILLESSE DES TRAVAILLEURS SALARIES DE STRASBOURG GRANTED HIM A RIGHT TO AN OLD-AGE PENSION CALCULATED UNDER ARTICLE L 331 OF THAT CODE, PURSUANT TO THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 ON THE AGGREGATION AND PRO RATA CALCULATION OF INSURANCE PERIODS .
5 THE APPLICANT SUBMITTED A COMPLAINT AGAINST THIS DECISION TO THE COMMISSION DE PROCEDURE GRACIEUSE, DISPUTING THE APPLICATION OF REGULATION NO 3 TO HIS CASE AND REQUESTING THAT HIS RIGHTS BE QUANTIFIED BY REFERENCE SOLELY TO PAYMENTS MADE BY HIM IN FRANCE .
6 THIS COMPLAINT WAS REJECTED, WHEREUPON HE BROUGHT AN ACTION BEFORE THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE IN WHICH HE CONFINED HIS OBJECTION TO THE METHODS OF CALCULATION APPLIED BY THE CAISSE REGIONALE FOR THE PRO RATA CALCULATION OF HIS PENSION UNDER ARTICLE 28 OF REGULATION NO 3 .
7 IT APPEARS FROM THESE FACTS THAT THE QUESTION OF INTERPRETATION RAISED BY THE COMMISSION DE PREMIERE INSTANCE CONCERNS THE APPLICABILITY OF ARTICLES 27 AND 28 OF REGULATION NO 3 TO THE CASE OF A WORKER WHO IS ENTITLED TO AN OLD-AGE PENSION UNDER THE LEGISLATION OF A MEMBER STATE ON THE SOLE BASIS OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF THAT STATE .
8 IN PARTICULAR, THE COMMISSION DE PREMIERE INSTANCE WISHES TO KNOW WHETHER " MIGRANT WORKERS MUST OCCUPY A PRIVILEGED POSITION AS COMPARED WITH NATIONALS OF THE STATE IN WHICH THEY ARE WORKING ", BECAUSE THEY DO NOT COME UNDER THE RULE REGARDING AGGREGATION AND ITS COROLLARY, THAT ON PRO RATA CALCULATION .
9 ARTICLE 51 OF THE TREATY AND ARTICLE 27 OF REGULATION NO 3 DEAL 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 .
10 TO REMEDY THIS SITUATION THEY PROVIDE, 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 .
11 THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 ARE ACCORDINGLY APPLICABLE ONLY IN CLEARLY DEFINED CASES AND ARE IRRELEVANT WITH REGARD TO A STATE IN WHICH THE EFFECT WHICH ARTICLE 51 SEEKS TO PRODUCE IS ATTAINED UNDER NATIONAL LEGISLATION ALONE .
12 THE AGGREGATION AND PRO RATA CALCULATION PROVIDED FOR BY THE SAID PROVISIONS 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 .
13 IF THIS PROCEDURE WERE TO LEAD IN CERTAIN CASES TO MIGRANT WORKERS BEING PLACED AT AN ADVANTAGE IN COMPARISON WITH NATIONALS OF THE STATE IN WHICH THEY WORK, THIS CONSEQUENCE WOULD FOLLOW NOT FROM THE INTERPRETATION OF COMMUNITY LAW BUT FROM THE SYSTEM AT PRESENT IN FORCE, WHICH, IN THE ABSENCE OF A COMMON SOCIAL SECURITY SCHEME, DEPENDS ON A SIMPLE COORDINATION OF NATIONAL LEGISLATIVE SYSTEMS WHICH HAVE NOT BEEN HARMONIZED .

14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
15 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN, COSTS ARE A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DU BAS-RHIN BY DECISION OF 28 APRIL 1971, HEREBY RULES :
WHEN IN ONE MEMBER STATE THE RIGHT TO AN OLD-AGE PENSION ARISES BY REASON OF INSURANCE PERIODS COMPLETED SOLELY UNDER THE LEGISLATION OF THAT STATE WITHOUT ITS BEING NECESSARY TO REFER TO PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES, THE COMPETENT INSTITUTION OF THE FIRST STATE IS NOT EMPOWERED TO APPLY ARTICLES 27 AND 28 OF REGULATION NO 3 IN ORDER TO REDUCE THE BENEFIT WHICH IT IS OBLIGED TO PAY BY VIRTUE OF ITS OWN LEGISLATION, AT LEAST IN SO FAR AS THAT BENEFIT DOES NOT RELATE TO PERIODS WHICH HAVE ALREADY BEEN TAKEN INTO ACCOUNT IN THE CALCULATION OF THE AMOUNT OF THE BENEFIT PAID BY THE COMPETENT INSTITUTION OF ANOTHER STATE .