Judgment_paragraph 1. · 18/67

1.The Belgian Conseil d'Etat poses the question how annual insurance periods, as calculated under the Belgian Law, may be inserted into the total period of employment of a worker who has effected insurance periods in a country (in this case Germany) in which the unit of computation in respect of the insurance period to be taken into account is one month.In order to resolve this problem, two points must be taken into account, first that the insurance period of one year used by Belgian legislation may in reality correspond to periods of actually less than one year (down to a minimum of 185 days) in the working life of the person insured, and secondly that during the same calendar year the worker may have been employed for a certain time in another Member State.The Commission makes a distinction between calendar years during which the worker is subject to Belgian legislation alone and those during which he is also subject to the legislation of other Member States.(a) In the first case, there is here no question of interpretation relating to Community law. In this connexion, in fact, there is no necessity to take a unit of time other than the insurance years, which can if necessary be converted into the smallest common unit of time, in accordance with the provisions of Article 13 (4) of Regulation No 4 of the Council of the EEC. In this case, when the person concerned has completed in Belgium the 185 working days required under Belgian legislation, the insurance period to be taken into account is one year. To take into account not the insurance year (12 months) but the actual lesser period would lead to a modification of Belgian legislation, which would be incompatible with Article 51 of the EEC Treaty.(b) In the second case, no insurance period can be taken into account by Belgian legislation where, on aggregation, in the same calendar year, of the periods completed in Belgium and those completed in other States, the person concerned does not complete the 185 days of insurance required by Belgian legislation.However, when a worker has completed the 185 days required under Belgian legislation, either in Belgium alone or by aggregation, the situation is as follows:(a) In order to determine the benefit to which the person concerned would have been entitled if he had spent his whole working life in Belgium (calculation for accounting purposes) it is appropriate to take into account the total number of years thus obtained. Each calendar year during which at least 185 days have been aggregated must be considered as a complete year.(b) For the pro rata calculation, if recourse to a period completed in another Member State has been necessary in order to reach the required 185 days and to cause a Belgian period of one year to start to run, that period of one year must be calculated pro rata.On the other hand, when a worker, while completing solely under Belgian legislation the required 185 days, has also worked in another country in the same calendar year, the Commission wonders whether the complete year should be taken into account or whether, on the contrary, it should be calculated pro rata by using the number of actual months completed in Belgium as the denominator. As the worker has completed periods abroad in respect of which he receives a fraction of the pension, to grant him a fraction of the Belgian pension covering a year would, according to the Commission, be tantamount to granting him a benefit relating to periods which have already been taken into account in calculating the amount of the benefits paid by the competent institutions of another State, which has been precluded by the Court in its judgment in Case 1/67.Finally, where the person concerned has completed 185 days in Belgium but has worked for less than one year in all in the two countries in question, for example eight months in Belgium and two months in Germany, the Commission considers that it is necessary to take as the numerator the full unit less any periods actually completed in the other country.In this case, the Commission stated in its oral observations, however, that the only question of interpretation of Community law with which the national court is faced is how, if the six years of war (1940 to 1945) are to be considered, the actual insurance periods which the person concerned completed in Germany during those years should be taken into account and, more particularly, how the periods in Germany should be deducted from the periods in Belgium.In this connexion the Commission of the EEC supports the method followed by the Commission d'Appel, namely the conversion of the insurance period completed in Belgium into months (8 years = 96 months) and the deduction from that figure of the number of actual months' insurance completed in Germany during the same period.

Argia Pagotto (née Cossutta) v Office National des Pensions pour Ouvriers (18/67)

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