Judgment_paragraph 1. · 112/75

1.Mr Hirardin recalls that under Article 27 of Regulation No 3 ‘For the acquisition, maintenance or recovery of the right to benefit, where an insured person has been successively or alternately subject to the legislation of two ore more Member States, the insurance periods and assimilated periods completed under the legislation of each of the Member States shall be aggregated in so far as they do not overlap’.He considers that although Algeria, whose territory was within the scope of Regulation No 3 by Article 1 (a) and Annex A thereto, became independent on 1 July 1962, it only ceased to be regarded as subject to that regulation after 19 January 1965 by virtue of Regulation No 109/65/EEC of the Council of 30 June 1965 (JO No 125 of 9.7.1965, p. 2124). Article 16 (2) of Regulation No 109/65 itself provided for the deletion from the annexes to Regulation No 3 of the reference to Algeria “without prejudice to rights acquired”.Therefore, as the Court stated in its judgment in Case 110/73 (Fiege v Caisse Régional d'Assurance Maladie de Strasbourg, [1973] ECR 1001 at p. 1014) these provisions show that “Annex A to Regulation No 3, in its former wording, obliges the French social security institutions to honour rights acquired in Algeria by a migrant worker before 19 January 1965”. Similarly, in its judgment in Case 6/75 (Horst v Bundesknappschaft, [1975] ECR 823 at p. 830), the Court interpreted the concept of “accrued rights” to mean that “as far as is necessary for the acquisition, maintenance or recovery of the right to benefit the insurance periods completed in Algeria before 19 January 1965 must be taken into consideration for determining the pensions referred to in Chapters 2 and 3 of Regulation No 3, even if the risk materializes and the claim for the pension is made after that date”.Secondly, Mr Hirardin maintains that, in so far as they are incompatible with the principle of non-discrimination between Community citizens and national workers contained in Articles 7 and 8 of Regulation No 3, the provisions of the Decree of 4 September 1962 cannot be applied as against migrant workers who are nationals of Member States of the EEC.For this reason Mr Hirardin suggests that the Court should give the following reply to the first question:‘The effect of the provisions of the Decree of 4 September 1962 cannot be to prevent periods of employment completed by a Community citizen in Algeria before 19 January 1965 from being taken into account:— by virtue of the principle of acquired rights laid down in Regulations Nos 3 and 109/65, whatever the date of determination of such rights. These rights must be protected by national courts, notwithstanding any more restrictive national rules;— secondly, by virtue of the principle of equal treatment.’Mr Hirardin considers that, at first sight, the second question appears to be outside the jurisdiction of the Court, as defined by Article 177 of the EEC Treaty. It is not for the Court to interpret or apply national law.However, the question should be read as asking the Court to rule on the meaning and scope of Regulations Nos 3 and 109/65 to the extent to which, for calculating old-age benefits, they require that account be taken of periods of employment completed in Algeria before 19 January 1965 by a Belgian national who does not fulfil the conditions laid down by the Law of 26 December 1964 and the Decree of 4 September 1962.The reply appears to follow necessarily from the principle of the precedence to be given to Community law. The conditions laid down by the Decree of 4 September 1962 cannot limit the rights which the individual concerned derives from Community rules.Secondly, Mr Hirardin considers that the principle of non-discrimination contained in Article 8 of Regulation No 3 prohibits the application of the Law of 26 December 1964, the terms of which may result in French nationals' being treated differently from nationals of other Member States. The problem is to determine whether or not the principle of equal treatment imposes a duty on the French State to include the migrant workers of other Member States in the field of application of the Law of 26 December 1964.The particular features of the Law of 26 December 1964 do not appear to justify the introduction of treatment which is discriminatory as against Community nationals and which is based upon criteria as ambiguous as devotion to France or exceptional services to that nation. The case-law of the Court as laid down in particular in Cases 24/74 (Caisse Regional d'Assurance Maladie de Paris v Biason, [1974] ECR 999), 44/72 (Marsmann v Rosskamp, Rec. 1972, p. 1243) and 76/72 (Michel S. v Fonds National de Reclassement Social des Handicapés, [1973] ECR 457) appears to be based upon the concept that laws — even laws of national unity — cannot introduce into the field of social benefits discrimination capable of disrupting the principle that French nationals and nationals of other Community countries must be treated equally.