A — · 22/67 · GlobalLawDB

A —The Commission states first of all in its written observations that the basic question to be resolved is whether the word ‘conditions’ appearing in Article 28 (1) (f) must be interpreted as covering only the conditions conferring the right to a pension, or as applicable to the conditions conferring this right and to the conditions of payment of the pension.It maintains that in the first case as a right to a pension in Belgium had been conferred on the person concerned the provisions of the said subparagraph (f) are not applicable to him and therefore the French institutions are not entided to leave out of account the Belgian insurance periods, despite the fact that it has not been possible to pay the Belgian pension; in the second case, since the person concerned does not satisfy the conditions required for payment of his pension in Belgium, even though he satisfies the conditions laid down by Belgian legislation for conferment of the right he might claim the benefit of subparagraph (f) to have the French pension calculated solely in terms of the periods completed in France.The Commission next recalls that it has already expressed, in Cases 2/67 and 11/67, the opinion that non-payment of the pension in one Member State must involve in another State the calculation of the fraction of pension in terms solely of the periods completed in the latter State, and that the subde distinctions between ‘conferment’ and ‘suspension of the right to benefits’ are irrelevant. In support of its argument it points out that:— in considering the ‘conditions’ with which Article 28 (1) (f) is concerned, account must be taken of the provisions of sub-paragraph (a) of the same paragraph, in terms of which the institution of each of the Member States (in accordance with whose legislation the insured person has completed the insurance periods) shall, in accordance with its own legislation, determine whether the person concerned satisfies ‘the conditions for entidement to the benefits prescribed in that legislation’;— because of its general nature this latter expression does not imply any distinction between ‘conferment of the right’ and ‘payment of benefit’;— like the other provisions of Article 28 those of paragraph (1) (f) should be interpreted in terms of the objectives prescribed by Article 51 of the Treaty, as defined by the Court;— it emerges from the case-law of the Court (Judgment in Case 100/63) that the provisions of Article 28 are only applicable if the Community regulations do not permit compensation of a loss of rights already acquired by at least equivalent benefits;— in the present case Mr Goffart sufers, by virtue of Belgian legislation, a lawful reduction in the total of his pension but on the other hand he would suffer an unjustified loss if, owing to the same circumstance, his French fraction were to be decreased by taking into consideration the periods of employment completed in Belgium, for which a corresponding pension is not being paid to him;— for these reasons it is of little importance for the purposes of Article 28 (1) (f) to seek the reasons why the person concerned does not receive benefit under the legislation of another Member State; it is sufficient to note that in this case he does not satisfy all the ‘conditions’ prescribed by that legislation.Consequently the Commission expresses the opinion that an affirmative reply should be given to the question put.

Caisse régionale de sécurité sociale du Nord-Est v Robert Goffart (22/67)

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