Ciechelski v. Caisse Regionale de Securite Sociale du Centre, Orleans and Another (Case 1/67) Before the Court of Justice of the European Communities

Transcription

1 Ciechelski v. Caisse Regionale de Securite Sociale du Centre, Orleans and Another (Case 1/67) Before the Court of Justice of the European Communities ECJ ( The President:Judge Ch. L. Hammes; Judges A. Trabucchi, R. Monaco, L. Delvaux, A. M. Donner, R. Lecourt and W. Strauss.)M. Joseph Gand Advocate General,. 5 July 1967 Reference by the Cour d'appel d'orléans (Chambre Sociale) under Article 177. Migrant workers. Social insurance. Measures under Article 51 of the E.E.C. Treaty to ensure cumulation of qualifying periods credited towards social security benefit in different member-states do not apply in cases where full benefit is already granted by a State on the basis of qualifying periods credited in that State alone. Articles 27 and 28 of E.E.C. Regulation 3 are to be interpreted to that effect. The Court gave an interpretation of Articles 27 and 28 of E.E.C. Regulation 3. The following cases were cited by the Advocate General: Kalsbeek--Van der Veen v. Bestuur der Sociale Verzekeringsbank (100/63), 15 July 1964: [1964] C.M.L.R. 548; (1964) 10 Recueil Hagenbeek v. Raad Van Arbeid, Arnhem (4/66), 13 July 1966: (1966) 12 Recueil 618. App., Paris, 4 March 1964, Nani v. Caisse d'assurance Vieillesse des Travailleurs Salaries de Paris [1964] C.M.L.R. 334; [1964] Dalloz Jur Facts

2 The following facts form the basis of the present preliminary hearing. 1. The applicant born on 11 November 1898 contributed in Germany and France respectively to the old age pension fund for a total of 134 quarters, being 21 quarters in Germany and 113 quarters in France. * When he reached the age of 62 he requested payment of his French pension. At that time, the applicant did not qualify for a pension in respect of the periods of contribution in Germany as he had not reached the age of 65 years as required by German law. The qualification for the French pension was therefore considered without reference to the periods of contribution in Germany and the pension was paid having regard only to the periods of contribution in France. From 1 December 1960 the French Regional Authority (Caisse) granted to the applicant, on the basis of a period of contribution in France of 113 quarters, benefit amounting to 731 francs per quarter until 1 November When he attained the age of 65 the applicant applied jointly to the German and French authorities. (a) In view of the fact that German law requires a qualifying period of 15 years, the applicant, due to an insufficient number of contribution periods, would qualify for a pension only if the period of contribution in France was taken into consideration in application of Article 27 of Regulation 3. Since 1 November 1963 the German authority paid the applicant a quarterly pension of 138 DM ( francs). (b) On the other hand, he requested that his French pension should be revised by taking into account the periods of contribution in Germany. The defendant authority allowed this revision by calculating the benefit due to the applicant in the following manner: In the first place it totalled the periods of contribution in France and Germany (134 periods). Then it determined the total benefit to which the applicant would have been entitled if he had completed his whole career in France (the theoretical total); this total was based upon a formula of 120 x S (S = the fraction of the basic salary to be taken into account). (This method of calculation is based upon French law which provides for a maximum period of contribution of 120 terms so that any period completed over and above this maximum cannot increase the total of the benefit due.) Finally it apportioned the 'theoretical total' by multiplying it by the fraction 113/134. (In this calculation the denominator equals the number of periods in fact completed, consequently, a number higher than a maximum of 120 quarters mentioned above.) The applicant's French pension was therefore established according to the formula 113 x 120 x S/134. From December 1963 it amounted therefore to a round sum *194 of 654 francs per quarter which was less than the amount paid to the applicant before this date. The defendant authority then requested the applicant to re-pay the sums which it considered had been wrongly paid between the period 1 November 1963 and 31 October 1965, that is, when it had paid a pension calculated solely upon the

3 basis of the French system. 4. The applicant objected to this method of calculation and also to the request for re-payment. According to the applicant it would be 'abnormal' for the defendant to pay him a pension less than the one that he could claim if the French system alone applied to him. The request which he formulated for this purpose was rejected by the defendant authority and also by the Commission of first instance of the Sécurité Sociale d'orléans and he consequently commenced an appeal against the decision of the Commission in the Orléans Court of Appeal. Question raised at the Court of Appeal of Orléans By a judgment dated 22 December 1966 the Orléans Court of Appeal considered the following: 'The Regulations of the E.E.C. in matters of social security have as their basic framework and limits Articles 48 to 51 of the Treaty of Rome. [FN1] Article 51 provides that the regulations should *195 establish the measures necessary to ensure the free movement of labour in particular by introducing a system which will ensure to migrant workers that all qualifying periods for benefits under the domestic legislation of the countries concerned shall be added together for the purposes of qualifying for and retaining the right to benefits and for the calculation of these benefits. It is necessary within the framework of Article 177 [FN2] of the Treaty to refer to the Court of Justice of the European Economic Community the question of whether Regulation 3 which in this case led to the loss of rights acquired in France is compatible with Article 51 of the Treaty.' FN1 Articles 48 to 51 provide: Article The free movement of labour shall be secured within the Community not later than by the end of the transitional period. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member-states as regards employment, remuneration and other labour conditions. 3. It shall entail the right, subject to limitations justified on the grounds of public policy (ordre public) public security and public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of member-states for this purpose; (c) to stay in a member-state for the purpose of employment in accordance with the legislative and administrative regulations governing the employment of nationals of that State; (d) to remain in the territory of a member-state after having been employed in that State, subject to conditions which shall be the subject of implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service. Article 49 When this Treaty comes into force, the Council, acting on a proposal of the Commission and after the Economic and Social Committee has been consulted, shall issue directives or regulations setting out the measures required to bring about, by progressive stages, the free movement of workers, as defined in the preceding Article, in particular: (a) by ensuring close collaboration between national labour authorities; (b) by systematically and progressively abolishing such administrative procedures and practices and such waiting periods in respect

4 of eligibility for available employment as result either from domestic legislation or from agreements previously concluded between member-states, the maintenance of which would be an obstacle to the freeing of movement of labour; (c) by systematically and progressively abolishing all qualifying periods and other restrictions provided for either under domestic legislation or under agreements previously concluded between member-states which impose on workers of other member-states conditions for the free choice of employment other than those imposed on workers of the State concerned; and (d) by setting up appropriate machinery for matching offers of and requests for employment and for equating labour supply with demand, in conditions ensuring the avoidance of serious threats to the standard of living and employment in the various regions and industries. Article 50 Member-States shall encourage, within the framework of a common programme, the exchange of young workers. Article 51 The Council acting unanimously on a proposal of the Commission shall adopt, in the field of social security, the measures necessary to ensure the free movement of labour, in particular by introducing a system which will ensure to migrant workers and their dependants that: (a) all qualifying periods for benefits under the domestic legislation of the countries concerned shall be added together for the purposes of qualifying for and retaining the right to benefits and for the calculation of these benefits; (b) these benefits will be paid to persons resident in the territories of member-states. FN2 Article 177 provides: The Court of Justice shall be competent to give preliminary rulings (à titre préjudiciel) concerning:-- (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community; (c) the interpretation of the statutes of any bodies set up by a formal measure of the Council, where the said statutes so provide. Where any such question is raised before any court of law of one of the member-states, the said court may, if it considers that a decision on the question is essential to enable it to render judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a domestic court of a member-state, from whose decisions there is no possibility of appeal under domestic law, the said court is bound to refer the matter to the Court of Justice. It consequently decided to ask the European Court of Justice to decide: 'Upon the preliminary question relating to the interpretation which should be given to Article 51 of the Treaty of Rome and to Articles 27 and 28 of Regulation 3 of the Community relating *196 to the social security of migrant workers for the purpose of specifying whether this regulation could validly deprive a worker of a part of those rights acquired by him in one of the Community States.' Submission of The Advocate General (M. Joseph Gaud) You have already found it necessary in your judgments Van der Veen [FN3] and Hagenbeek [FN4] to interpret certain provisions of Articles 27 and 28 of Regulation 3 relating to the social security of migrant workers. It was then a question of knowing how these articles, which provide in matters of assurance for

5 old age and death for the adding up of the periods of assurance and for their apportionment according to the number of periods between the various interested authorities, should be brought into effect in the case of the Dutch assurance A.W.W. which is a risk assurance. FN3 kalsbeek-van der veen v. bestuur der sociale verzekeringsbank (100/63), 15 July 1964: [1964] C.M.L.R. 548; (1964) 10 Recueil FN4 Hagenbeek v. Raad Van Arbeid, Arnhem (4/66), 13 July 1966: (1966) 12 Recueil 618. The question is brought before you today in slightly different terms at the instigation of the Court of Appeal of Orleans. This case, by the way, is the first of a long series since seven files relating to the provisions in question or to other closely related provisions have actually been referred to you by various civil, administrative or social jurisdictions of four member-states, some of whom are obliged to refer the matter to you by virtue of Article 177 of the Treaty while the others merely have power to do so. As a matter of principle one is happy to see the use being made of this Article within the judicial practice of the Community; but from a less conjectural viewpoint one may well express a certain amount of anxiety at the number of questions of law and practice raised by this part of the regulation and reflected in these references. In any event it is a good reason why one should approach the present case with some caution when one considers that the investigation of the other cases now pending could clarify still further Articles 27 and 28. The facts which led the Court of Appeal of Orleans to refer the matter to you are the following: M. Ciechelski, a naturalised Frenchman who had contributed respectively in Germany and France by way of old age assurance, obtained in the first place a French pension by reason only of the French qualifying period at a time when he fulfilled the age limit required by the law of that country but not that required by German law (Art. 28 (1) (f)). Once he had reached this age qualification his pension was at his own request replaced by two pensions, a German one and a French one, which were calculated in the following manner. *197 The right to a German pension--due to an insufficient number of qualifying periods in that country--only became available by taking into consideration the French periods and the assured, after apportionment, obtained a quarterly payment of DM138 ( francs). The French authority added together the French and German qualifying periods (that is, respectively 113 and 21 quarters) and determined the total benefit to which M. Ciechelski would have been entitled had he completed all his career under French law. On the basis of this total it fixed the benefit due from the French system in the proportion that the number of periods completed in France bore to the total number of the periods completed. This is a literal application of Article 28 (1) (b). At this stage we came across a peculiarity of the French system which provides a

6 maximum duration of assurance of thirty years, that is 120 quarters, for the calculation of pension. The 'theoretical' total was therefore calculated on the basis not of 134 quarters but of 120. On the other hand the calculation of the proportional amount was made by charging to the French system 113/134 of the theoretical total and M. Ciechelski was granted a pension of 654 francs. This figure was less than the amount of the pension previously received by him under the French system which was 731 francs but if one adds to it the German pension ( francs) the totalling of the periods more than compensates for this decrease. Dissatisfied with this solution the assured made an unsuccessful request to the Commission of first instance to re-establish his own pension. He subsequently proceeded to the Court of Appeal of Orleans and the latter, having noted the various points of fact which we have mentioned and also noted that Regulation 3 led in this case to a loss of rights acquired in France, now refer for your decision the question 'of the interpretation which should be given to Article 51 of the Treaty of Rome and to Articles 27 and 28 of Regulation 3...so as so specify whether this regulation could validly deprive a worker of a part of those rights acquired by him in one of the Community States'. The Court of Appeal, then, asks you to interpret both Article 51 of the Treaty and the two articles of the regulation made in application thereof. In fact--and this will become still clearer if one compares the question asked with the grounds of the judgment--it asks for your opinion upon the validity in relation to the Treaty of the provisions of the regulations which would deprive the migrant worker of a part of the rights acquired by him. It is clear that it refers, therefore, to your judgment in Van der Veen where for the first time you laid down a certain *198 number of principles for the interpretation of the regulation. You there pointed out that this regulation has 'as its basis, its framework and its limits Articles 48 to 51 of the Treaty intended to ensure the free movement of labour' and that the object of these articles ' could not be achieved but rather would be thwarted if the worker should by taking advantage of the free movement guaranteed to him suffer the loss of rights already acquired in one of the member-states without having them replaced by benefit of at least equal value'. You confirmed this answer in your judgment in Hagenbeek, at the same time adding that it did not follow therefrom that a migrant worker should 'necessarily merely as the result of the inter-play of several additional national legislations succeed in obtaining an accumulative total of undue advantages with regard to Article 28 (3)'. It is in the light of these principles that you first gave an interpretation of Articles 27 and 28 of the regulation for the case of Dutch law, the peculiar characteristics of which are well known to you. But your answer does not exhaust the question, for it remains to be discovered how in each case these principles can be applied to different national laws which nevertheless arise from the same regulation. It is for this reason that one can again raise this question when you seem already to have replied to it, for, if it is not part of your function to pronounce upon the application of Community law to a specific case, it is still clear that both the question and the answer can only be understood by reference to a specific legislation and must be replaced within the framework of such legislation. It is

7 because the calculation of the theoretical total and the apportionment were effected within the framework of French law that we must examine, as requested by the Court of Appeal whether Article 28 can validly deprive a worker of a part of the rights already acquired by him. French law provides a maximum number of 120 quarters which assures maximum benefit. The benefit, being proportional to the duration of the assurance, is consequently subject to a ceiling if the maximum is not attained. As can be seen from the file and in particular from the observations addressed to you by the Caisse Régionale, it is by reason of this peculiarity that the authority took as its theoretical total a maximum pension corresponding to 120 quarters whereas the claimant had a total of 134 quarters, if one takes into account his German career. It does not appear that this peculiarity of the French system is of itself contrary to Article 28 and to the principle of apportionment. As the Commission has shown, the latter has no effect in this sense, except if by virtue of the law of a member- State the *199 pension is not strictly proportional to the duration of assurance, save that one would arrive at the same result by the direct calculation method which is authorised in this case by Article 29 (2) of Regulation 4. Your judgment in Van der Veen accepts apportionment under specified circumstances for a law which like the Dutch law does not make the total benefit dependent upon the duration of assurance, and it seems that the same solution should be adopted for the French system which we have described. Let us add that you would no doubt have to ask the same question for the Luxemburg legislation where the pension consists partly of benefit proportional to the duration of assurance and partly of fixed benefit. Having said this, the principle of apportionment as it is applied in conformity with the letter of Article 28 (1) (b), in fact results in a migrant worker receiving for a similar number of quarters completed in this country a lower pension than would be received by a non-migrant worker. To take the figure of 113 quarters the nonmigrant worker would receive a pension equal to of the 113/120 maximum amount, while the migrant worker on the other hand due to the fact that in addition he completed 21 quarters in Germany would only receive a French pension equal to 102 quarters. The greater the number of quarters completed under another legislation the less the amount of the French pension; the only alleviation of these losses may possibly be found in the complement provided by Article 28 (3). This problem is not new and had already been met by the French courts since, in a very similar case, the judgment in the case Nani v. Caisse d'assurance Vieillesse des Travailleurs Salariés de Paris, [FN5] prior to your Van der Veen judgment, applies literally the provisions of Article 28 but notes that for the worker who had contributed in France and Italy the position was considered as if he had never contributed in the latter country. The contributions made in Italy therefore did not procure any advantages for him. FN5 APP., Paris, 4 March 1964: [1964] C.M.L.R. 334; [1964] Dalloz Jur. 419.

8 You know how the Commission intends to deal with such losses of rights. It considers that the migrant worker for the purpose of the application of French law should be considered as under the same system as other workers. This implies that in so far as the number of contribution periods in this country remains below the maximum of 120 quarters his French pension should be proportional to the duration of assurance, which would in fact lead to a reversion to the direct method of calculation. On the other hand, if he had completed in France a period of assurance *200 greater than the maximum, his French pension should reach the maximum but should not exceed it. On this point we can only refer to the Commission's observations which set out the formulae according to which apportionment should be effected and which also indicate the arrangements of the actual provisions of Article 28 which it has inserted in its proposal for the revision of Regulation 3 in such a way as to ensure that migrant workers subject to laws of this kind should not be at a disadvantage. But one must not forget that--this is the second aspect of the question--your jurisprudence interprets Article 51 of the Treaty as only opposing the loss of rights already acquired if these rights are not replaced by benefits of at least equal value. Now, as we have said, without the application of Article 27 of the regulation the claimant would not have had any right to a pension under German law. On the other hand the total of his two apportioned pensions, French and German, is greater than the amount of the original unapportioned French pension. Is such a compensatory measure sufficient for the purposes of observing Article 51? In replying in the negative the Commission points out that the method used by the Caisse results not only in a loss of rights as regards the French pension-- which is obvious--but also as regards the German pension, and this is rather more difficult to understand. In support of this argument it compares the position of two workers both having the same career of 113 quarters in France but one of whom had completed a career of 61 quarters in Germany--the minimum required for obtaining a right to a pension by the direct calculation--while the other had only completed in that country a smaller number of quarters. In the first case there would be no apportionment as adding up would not be necessary and he would benefit in both these countries by a pension proportionate to his career, consequently in France to the whole of his 113 quarters. In the second instance the consideration given to his French career by virtue of the regulation would certainly qualify him to the right of pension but would not confer upon him any advantage as to the calculation of the pension since the German pension, as in the first case, would be proportionate to the length of the German career. The application of the regulation, says the Commission, would have as its sole effect the establishment of equality between them. But to treat them differently under French regulations would result in this equality being broken. In fact, the worker who could qualify in Germany without taking into account his French period would benefit by a pension calculated on the basis of 113 quarters (let us admit that he should benefit in this manner, since according to the observations made by the Caisse it wrongly considers that there should be an apportionment even in this case); whereas in the second case his pension would be reduced to an

9 amount which *201 would be less than a proportionate part of his French career; whereas he like the first had worked and contributed to obtain this German pension. The Commission concluded that if one reduced the French pension the claimant lost a part of the benefit of his affiliation to the German assurance. Having contributed for 134 quarters he would only have in reality a pension corresponding to a total of 122 quarters ( ). Now, if the provisions of the regulation are intended to prevent the useful working life of a person being reduced by the fact of migration the validation of periods in one country due to adding up should not have as a result the rejection in another country of periods which do not coincide with the first. This last remark is important since it differentiates between the present circumstances and those which could arise when one is dealing with a risk assurance, such as the Dutch A.W.W. where the same periods can be taken into consideration twice, with a risk of this producing 'a cumulative amount of undue advantage' which the judgment in Hagenbeek rejects. We have attempted to consider in all their detail the rather subtle arguments of the Commission. What should we conclude from them? It all boils down to the rather wide meaning given to this concept of equivalent advantages which can according to you compensate for the loss of acquired rights. If we think as does the Commission that it must be strictly interpreted it is because the object of Article 51 is both limited and precise and simply seeks to allow the free movement of labour. The regulations which it provides should ensure for workers that all qualifying periods for benefit under the domestic law of the countries concerned shall be added together for the purposes of qualifying for and retaining the right to benefit and for the calculation of these benefits. What is envisaged is essentially the qualification for benefit. The apportionment is not mentioned. This does not mean that it is consequently excluded but that it can only take effect in limited conditions. In reality Article 28 of the regulation was essentially created within the framework of proportional systems of old age assurance and to prevent the accumulation of all kinds of fixed elements, but since the appearance of systems like that of the French legislation it is difficult to see how the principle of apportionment pure and simple can find its basis in Article 51. Consequently, the Commission, as one has already seen, has been obliged seriously to deviate from this concept. If the position concerning the basis of the right is not obvious, the answer to be given to the Court which has referred the matter to you is also far from easy. You are requested to state whether an article of a regulation which leads to a loss of acquired rights *202 is compatible with Article 51 of the Treaty. The reply which you have already given to this question by your judgment in Van der Veen must be adapted in order to take into consideration the peculiarities both of the legislation and of the facts which have led the Court to refer the questions to you. One must, we think, specify that if reference to apportionment should not in principle be excluded in a system such as that comprised in the French legislation, a calculation of 'a theoretical total' which would take into account the existence of a ceiling for benefit, in circumstances different from those applied to

10 non-migrant workers, would be contrary to Article 51 of the Treaty. We submit, moreover, that the Court of Appeal of Orleans should decide upon the question of the costs of this hearing. JUDGMENT [1]. The Court of Appeal of Orleans requests the Court to adjudicate 'upon the interpretation which should be given to Article 51 of the Treaty of Rome and to Articles 27 and 28 of Regulation 3 of the Community relating to social security for migrant workers so as to specify whether this regulation could deprive a worker of a part of the rights acquired by him in one of the Community States'. [2]. It is a characteristic of assurance systems subject to qualifying periods such as the one now under consideration, that in one State the benefit may be acquired by virtue of internal law alone while in another State the right to benefit can only arise by adding together all the qualifying periods provided for by Article 51 of the Treaty and Article 27 of Regulation 3. Furthermore, such systems have a further peculiarity. On the one hand the application by the competent authority of the first State of Articles 27 and 28 of the regulation could result in the reduction of the benefit arising from the application of internal law alone, while on the other hand the benefit would not be related to the qualifying periods in respect of which the claimant could equally obtain benefit from the second State. It is therefore necessary to consider whether, in a similar case, the authority paying a pension arising by virtue only of its national law is entitled to apply Articles 27 and 28. [3] 1. According to the terms of Article 28 (1) (a) the provisions of this article and in particular paragraph (b), which provides for the calculation known as 'apportionment' (Proratisation), seem to be equally applicable to every 'assured person referred to by Article 27 of the present regulation' that is, having been 'subject successively or alternately to the law of two or more *203 member- States' as well as to 'the authority of each of these member-states'. Moreover, according to the terms of paragraph (b), apportionment shall take place when the right to benefit 'is acquired by virtue of the preceding paragraph' that is 'having regard to the total qualifying periods' accomplished by virtue of the different national laws, in conformity with Article 27. This, on the other hand, would suggest that apportionment is excluded if according to the law in question, the right of the claimant is established without need to refer to qualifying periods completed by virtue of other laws. This interpretation finds support in Article 27 (1) which only provides for the totalling of qualifying periods 'for the purposes of qualifying for retaining or recovering the right to benefits' but not 'for the calculation of benefit', an expression used by Article 51 of the Treaty. In fact, this wording seems to limit the totalling of qualifying periods to cases where this is necessary in order to establish a right to benefit, and seems to exclude it in cases where its only effect would be to maintain or to vary the content of a right already acquired by virtue of the national law itself.

11 [4] 2. In view of the difficulties of interpretation of these provisions it is necessary to consider them in the light of Articles 48 to 51 of the Treaty which form the basis, the framework and the limits of the regulations adopted in the field of social security. [5] These provisions aim at ensuring 'the free movement of labour', in particular by the 'abolition of any discrimination, based on nationality, between workers of member-states as regards employment, remuneration and other labour conditions'. Article 51 specifies that the regulation adopted for its application should establish 'a system which will ensure to migrant workers that...all qualifying periods for benefits under the domestic legislation of the countries concerned shall be added together for the purposes of qualifying for and retaining the right to benefits and for the calculation of these benefits'. These provisions establish that the regulations as a whole are intended under certain conditions to benefit the migrant worker in those circumstances which would result from the exclusive application of internal law. Having regard to the doubt which exists, these regulations must therefore be interpreted in the light of this objective. [6]. It follows from its very wording that Article 51 refers above all to the case where the law of a member-state by itself would not *204 enable a claimant to qualify for the right to benefit, due to an insufficient number of qualifying periods completed under this law. For this reason it seeks to oblige the competent authority of such State to take into account also the qualifying periods completed under the system of other member-states and to pay benefit in so far as the total of these periods reaches or exceeds the minimum periods provided by the law of such State. However, this benefit, if it is not to confer unjust advantages upon the assured, cannot within the terms of Article 28 (1) (b) of Regulation 3 exceed the 'proportion of the number of periods completed under the said law... in relation to the total number of the periods completed under the laws of all interested member- States'. Conseqùently, the power to apportion which is provided by the above-mentioned provision, while not expressly referred to in Article 51 of the Treaty, nevertheless is an inseparable element of the totalling operation and necessarily pre-supposes a preliminary totalling. [7]. It follows from what has been said that the totalling and apportionment have no purpose in the case of a State where the result sought by Article 51 is already attained by virtue of national law alone. Article 51 cannot, therefore, serve as the basis for calculation of the benefit by the competent authority of such State, by reference to totalling and apportionment. [8]. 3. Having regard, however, to the complexity of national law, and, also, the complexity which results from the provisions of Community law, this principle cannot be considered an absolute rule. In particular, it is only valid in so far as its application does not provide for the payment of benefits in excess of those expressly provided by Article 51 of the

12 Treaty or the regulations taken in application thereof. [9]. This Article seeks to take into account periods of assurance which would otherwise be inoperative but does not allow the assured to claim from the authorities of several States benefits relating respectively to one and the same period. It is, moreover, in this spirit that Article 27 (1) of Regulation 3 provides for adding up only in so far as the periods in question 'do not overlap'. This principle, consequently, is the subject of an exception when its application would lead to an accumulation of benefit for one and the same period. [10]. However, in cases such as the present there does not exist any undue accumulation of benefit. *205 In fact, in this case, the benefit paid by one State under its own law as supplemented by the Community law on the one hand, and the benefit paid by the other State upon the basis solely of its own law, on the other hand, refer respectively to entirely distinct periods. In particular, bearing in mind the purpose of Article 51 of the Treaty, the fact that the assured had maintained the rights acquired in the latter State and at the same time become qualified to the right of benefit in the former State, could not be regarded as an accumulation contrary to Community regulations. These considerations still remain valid even in a case where the benefit which the claimant would obtain from the application of Article 27 in one State is more than a loss which he would suffer if another State were to apply Article 28 without having need to refer to Article 27. The authority of a State whose law stipulates a ceiling for benefit established by reason of a maximum qualifying period cannot nevertheless rely on Articles 27 and 28 as an argument for apportioning the benefit due in accordance with this law, with the object of bringing the total benefit due to a migrant worker nearer the ceiling. In fact, Regulation 3 having allowed the existence of separate systems creating separate credits against separate authorities, the authority of one State cannot ipso facto be entitled to invoke the charge which Community law imposes upon the authority of another State in order to reduce the charge which its own law imposes upon itself. [11]. These considerations, therefore, as a whole, lead one to admit that, in a case such as the present, the authority of a State where the assured can qualify without totalling cannot rely upon Articles 27 and 28 of Regulation 3 with a view to reducing the benefit which it would be obliged to pay solely upon the basis of its national law. [12]. Articles 27 and 28 of Regulation 3 being interpreted in this matter are not contrary to Article 51 of the E.E.C. Treaty. In fact, far from being to the disadvantage of a migrant worker, they respect the rights acquired by him in one State while granting him the right to qualify for a pension in another State. Costs

13 [13]. The costs incurred by the E.E.C. Commission which has submitted observations to the Court cannot be reimbursed. For the parties themselves, the proceedings are by nature of a subordinate question arising in the course of litigation pending before the Court of Appeal of Orleans and consequently the *206 decision upon the question of costs must be referred to the jurisdiction of that Court. Order THE COURT, for these reasons, adjudicating upon the question submitted to it for a preliminary ruling by the Court of Appeal of Orleans in accordance with the judgment of that Court dated 22 December 1966, HEREBY DECIDES: 1. When in one member-state the right to benefit is available without it being necessary to refer to qualifying periods completed under the law of other member-states, the competent authority of the first State is not empowered to apply Articles 27 and 28 of Regulation 3 with a view to reducing the benefit which it is obliged to pay by virtue of its own law, at least in so far as this benefit does not relate to periods which have already been taken into account in the calculation of the total benefit paid by the competent authority of another State. 2. Articles 27 and 28 of Regulation 3 interpreted in the manner we have already stated are not contrary to Article 51 of the E.E.C. Treaty. 3. The Court further decides that it is the prerogative of the Court of Appeal of Orleans to decide upon the question of costs in the present proceedings. (c) Sweet & Maxwell Limited [1967] C.M.L.R. 192 END OF DOCUMENT