II —Observations submitted to the Court
The written and oral observations submitted to the Court may be summarized as follows:August Keller, the plaintiff in the main action, observes that by aggregating the insurance periods completed by him in France and in Germany the Caisse Regionale d'Assurance Vieillesse de Strasbourg is reducing his French pension in direct proportion to the number of insurance years completed by him in Germany. Since he has acquired in its entirety the right to the French pension, calculation of the latter should be effected in accordance with the formula 84/120 and not in accordance with the formula 84/185; in this case it is inappropriate to aggregate the French and German periods.The Caisse Regionale d'Assurance Vieillesse des Travailleurs Salaries de Strasbourg, the defendant in the main action, points out that the fraction of the French pension payable to Mr Keller was awarded:— first, in accordance with the Order of 19 October 1945, which takes account of the average annual earnings over the previous 10 years of affiliation, of the percentage corresponding to the age reached at the date when the pension becomes payable and of the duration of insurance in France:— secondly, in accordance wirn Regulations Nos 3 and 4 concerning social security for migrant workers, which provide for the aggregation of insurance periods completed in two or more States of the Community, the determination of the amount for accounting purposes of the benefit to which the person concerned would be entitled if all his insurance periods had been completed exclusively under French legislation and the calculation of the French portion pro rata with the periods completed in France as compared with the total duration of insurance periods completed under the legislative systems of all the Member States concerned.In pursuance of those provisions, account was taken of the following factors:— basic annual wage (average annual wage corresponding to the contributions paid during the last 10 years of insurance completed before the age of 60 or before the age taken as the basis for the award, if this method of calculation is more advantageous): FF 14755.91;— percentage (for insured persons wno have contributed for at least 30 years the pension is equal to 20 % of the basic annual wage; where the insured person requests the award of his pension after the age of 60 this pension is increased by 4 % of the basic annual wage for each year after that age): 20 + (4 × 4) = 36 %;— me formula for calculating the outage pension acquired over 30 years is as follows:14 755.91 × 36100 = FF 5 312.12;— since the person concerned has completed 101 quarterly insurance periods in Germany, in addition to 84 quarterly insurance periods in France, he is entitled, under Article 27 (1) of Regulation No 3, to aggregation of the insurance periods completed in the two States (101 + 84 = 185 quarterly periods);— under Article 28 (1) (b) of Regulation No 3 the amount payable by the French social security institution pro rata with the duration of insurance periods completed under French legislation as compared with the total duration of periods completed under French and German legislation is therefore, as from 1 September 1969:5 312.12 × 84185 = FF 2 411.98.Mr Keller wishes this reduction (84/185) to be limited to 50/120, in view of the fact that, in calculating old-age pensions, French legislation provides only for a maximum of 30 years (120 quarterly periods).This solution, which is more favourable to the plaintiff in the main action than that adopted by the Caisse, is unacceptable since it does not take account of Regulations Nos 3 and 4.Article 51 or tne EEC Treaty provides for aggregation of all periods taken into account under the different national legislative systems for the purpose both of acquiring and retaining the right to benefit and of calculating the amount of benefit. There is no reason to suppose that this rule enables aggregation to be foregone where it is not in the insured's interest or that it is intended to ensure that migrant workers are treated more favourably than nationals of the countries in which they are working. All international agreements give foreigners the same rights as nationals but they cannot put the former in a privileged position.It also emerges from Articles 27 and 28 of Regulation No 3 — adopted in pursuance of Article 51 of the Treaty — that aggregation of insurance periods completed in two or more Member States is obligatory and admits of no derogation. Despite what the Court has declared in its judgment of 5 July 1967 (Case 1/67, Stanislas Ciechelski v Caisse Régionale de Sécurité Sociale du Centre d'Orléans; reference for a preliminary ruling by the Chambre Sociale of the Cour d'Appel, Orleans; [1967] ECR 181), pro rata calculation cannot be excluded even where the insured person's right to benefit is acquired in pursuance of the legislation of a single Member State and there is no need to take account of periods completed in another State. Subparagraphs (f) and (g) of paragraph (1) and paragraph (3) of Article 28 of Regulation No 3 would be devoid of purpose if the award of the various benefits without aggregation were possible.In this case, with regard to the possible limitation to 120 (instead of 185) for the purpose of the pro rata calculation, it must be observed that no legal text provides for this limitation, that it would lead, in certain cases, to the non-application of obligatory EEC regulations and that, in other cases, it would favour foreign nationals as compared with French nationals affiliated in France to two social security schemes.The Commission of the European Communities maintains that Mr Keller would enjoy a larger old-age pension in France if it had been calculated exclusively under the French legislation, that is, if account were not taken of the principle of aggregation and pro rata calculation written into Articles 27 and 28 of Regulation No 3. Mr Keller acquired a right to an independent old-age pension in France on the sole basis of the French insurance periods since he has amply fulfilled the minimum period of 15 years, that is, 60 quarterly periods, of contributions. The case is therefore identical with that settled by the Court of Justice in its judgment in Ciechelski of 5 July 1967; that decision has been clarified and supplemented by a number of judgments of the Court. The principles flowing from those cases were recently adopted by the French Cour de Cassation and by the Cour d'Appel, Paris.In those circumstances it must be ruled, as the Court has already decided, that when in one Member State the right to benefit arises 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 Regulatiin 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.Within those limits it is possible that in certain respects the situation of migrant workers may be more favourable than it would be through the application of internal law alone.
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