Avis juridique important

Judgment of the Court (First Chamber) of 7 July 1994. - Hugh McLachlan v Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés de la Région d'Ile-de-France. - Reference for a preliminary ruling: Cour de cassation - France. - Freedom of movement for workers - Social security - Old-age pensions - Taking into account of periods of insurance completed in another Member State. - Case C-146/93. European Court reports 1994 Page I-03229

Summary Parties Grounds Decision on costs Operative part

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Social security for migrant workers ° Old-age and death insurance ° Calculation of benefits ° Worker not simultaneously satisfying the conditions laid down for the provision of benefits by all the legislation to which he has been subject ° Legislation of the Member State whose conditions are satisfied taking periods of insurance completed under the legislation of another Member State into account solely for the purposes of the acquisition of the right to a pension and for determining the rate of that pension ° Whether permissible ° Discrimination on grounds of nationality ° None

(Regulation No 1408/71 of the Council, Arts 3(1) and 49)

Article 3(1) and Article 49 of Regulation No 1408/71 must be interpreted, where entitlement to an old-age pension is available from the age of 60 under the basic statutory scheme of a Member State to a worker under the age of 65 who has completed periods of employment in that State and in another Member State where there is no entitlement to a pension before the age of 65, as not precluding the taking into account of the periods completed in the latter State solely in order to determine the rate of the pension which may be paid immediately by the institution of the former State.

Firstly, if the person concerned does not, on the date when he requests payment of his pension, satisfy the conditions laid down by all the legislation under which he has completed periods of insurance, the taking into account for the calculation of the amount of the pension, by the national legislation whose conditions are satisfied, of the periods completed under the legislation of another Member State is excluded by Article 49 of the regulation, which does not, however, preclude the legislation of a Member State whose conditions are satisfied from taking periods of insurance completed under the legislation of another Member State into account for the purposes of the acquisition of the right to an old-age pension and for determining the rate of that pension.

Secondly, such national rules do not constitute direct or indirect discrimination on the ground of nationality. They are applicable without distinction and it has not been shown that, among workers who have completed periods of insurance in that State and in another Member State, they affect nationals of other Member States more severely than nationals of that State. Moreover, the failure of the national institutions to take into account the periods of insurance completed in another Member State in calculating the amount of the pension payable by them is inherent in the system under Regulation No 1408/71, which allowed different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights.

In Case C-146/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Chambre Sociale of the Cour de Cassation, France, for a preliminary ruling in the proceedings pending before that court between

Hugh McLachlan

and

Caisse Nationale d' Assurance Vieillesse des Travailleurs Salariés (CNAVTS),

on the interpretation of Article 3(1) and Article 49 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (First Chamber),

composed of: D.A.O. Edward, President of the Chamber, R. Joliet and G.C. Rodríguez Iglesias (Rapporteur), Judges,

Advocate General: C.O. Lenz,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° Mr McLachlan, by SCP Waquet, Farge, Hazan, Avocats admitted to practise before the Conseil d' État and Cour de Cassation,

° the French Government, by E. Belliard, Directeur Adjoint in the Legal Department of the Ministry of Foreign Affairs, and C. Chavance, Secrétaire for Foreign Affairs in that Ministry, acting as Agents,

° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry of the Economy, and C.-D. Quassowski, Regierungsdirektor in that Ministry, acting as Agents,

° the Commission of the European Communities, by M. Patakia, of its Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 24 March 1994,

gives the following

Judgment

1 By judgment of 25 March 1993, received at the Court on 9 April 1993, the Chambre Sociale (Social Division) of the Cour de Cassation (Court of Cassation), France, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 3(1) and Article 49 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 That question was raised in proceedings between Mr McLachlan and the Caisse Nationale d' Assurance Vieillesse des Travailleurs Salariés de la Région d' Ile-de-France (National Old-Age Insurance Fund for Employed Persons for the Ile-de-France Region, hereinafter "the CNAVTS") concerning his entitlement to an old-age pension.

3 Mr McLachlan, who has British and French nationality, was born in London on 6 April 1924. In the United Kingdom he served in the Royal Navy from 1942 to 1946, was a student from 1946 to 1948, and was then in employment from 1948 to 1955. He was then employed in France from 1956 to 1985, when he was made redundant.

4 He thus completed 53 quarterly periods of old-age insurance in the United Kingdom and 120 quarterly periods in France.

5 He was not entitled to an old-age pension in the United Kingdom until he reached the statutory retirement age of 65 years.

6 Under Article R.351-6 of the French Code de la Sécurité Sociale (Social Security Code):

"The maximum period of insurance under the general scheme taken into account for calculation of the old-age pension shall be 150 quarterly periods.

If the insured has completed fewer than 150 quarterly periods under that scheme, the pension shall be as many 150ths of the pension calculated in accordance with the second subparagraph of Article L.351-1 as the quarterly periods of insurance he establishes."

7 Under Article L.351-1 of that code:

"The old-age insurance scheme shall guarantee a retirement pension to an insured who requests payment thereof from a specified age.

The amount of the pension shall be derived by applying to the basic annual earnings a rate increasing, up to a maximum or 'full' rate, according to the length of the period of insurance, within a specified limit, under the general scheme and under one or more other compulsory schemes, and to the length of the periods recognized as equivalent, or according to the age at which payment of the pension is requested.

If the insured has completed under the general scheme a period of insurance which is shorter than the limit referred to in the second subparagraph, the pension provided by that scheme shall first be calculated on the basis of that period and then reduced, taking into account the actual length of the period of insurance.

..."

8 Article 3 of Decree 82-991 of 24 November 1982, which became Article L.351-19 of the French Code du Travail (Code of Employment), excludes the payment of unemployment benefits to persons of over 60 years of age who have a total of more than 150 quarterly periods recognized for the purposes of old-age insurance.

9 In calculating the 150 quarterly periods which can be recognized, the French legislation takes into account quarterly periods completed in the United Kingdom.

10 Since Mr McLachlan was made redundant at the age of 61 years when he had completed more than 150 quarterly periods of old-age insurance in the United Kingdom and in France, he could not receive unemployment benefits and was allocated an old-age pension at the full rate by the CNAVTS.

11 That pension was, however, paid only on the basis of the periods of insurance completed in France, namely 120 quarterly periods.

12 The applicant challenged that method of calculation. He argued that the French legislation in question was contrary to the provisions of Community law applicable to migrant workers, in that it took the period of insurance completed in the United Kingdom into account for the purpose of excluding him from entitlement to unemployment benefits, but not for calculating the amount of his old-age pension. In view of the fact that if he had not worked in the United Kingdom and been able to establish only 120 quarterly periods completed in France, he would have been entitled to unemployment benefits, whereas if his periods of insurance had all been completed in France, he would have been entitled to an old-age pension not merely at the full rate but also not reduced, he considers that he is the victim of unequal treatment contrary to Article 51 of the Treaty of Rome and Article 3 of Regulation No 1408/71. He considers that the French legislation has the effect of depriving him of unemployment benefits while allocating him a reduced pension, solely because part of his working life was spent in the United Kingdom.

13 The French Government states in its written observations that since the applicant could receive only an old-age pension at the full rate but calculated on the basis of a period of contribution less than the required 150 quarterly periods, he received a supplementary allowance from the State from 1986. That allowance was paid to him until 1989, when he reached the age of 65 years and was able to receive his pension in the United Kingdom in respect of the period of insurance completed in that State.

14 Mr McLachlan brought proceedings, which were unsuccessful, before the Tribunal des Affaires de Sécurité Sociale (Social Security Court), Paris.

15 He appealed to the Cour d' Appel (Court of Appeal), Paris, which, by judgment of 9 July 1990, varied the judgment under appeal by fixing a different date from which the applicant' s pension became payable. However, it dismissed his appeal with respect to his acquisition of rights under the French general scheme of old-age insurance and with respect to the rate applied by the CNAVTS in calculating the corresponding pension.

16 The Cour d' Appel observed in particular that there was no dispute before it relating to the refusal of unemployment benefits under Article L.351-19 of the Code du Travail, the subject-matter of the dispute being limited to the applicant' s request for a pension. It held that that request could not be met by a rejection "based firstly on the age when a pension at the full rate is granted under United Kingdom law and secondly on the pecuniary advantage which payments of unemployment insurance benefits until the age of 65 years could represent".

17 Mr McLachlan appealed against that judgment to the Cour de Cassation.

18 The Cour de Cassation considered that the case raised a question of the interpretation of Community law and stayed the proceedings

"until such time as the Court of Justice of the European Communities has given a preliminary ruling on the scope of Article 3(1) and Article 49 of Regulation No 1408/71 of 14 June 1971 and as to whether those provisions are to be interpreted, where entitlement to an old-age pension is available from the age of 60 under the basic statutory scheme of a Member State to a worker under the age of 65 who has completed periods of employment in that State and in another Member State where there is no entitlement to a pension before the age of 65 years, as precluding the taking into account of the periods completed in the latter State solely in order to determine the rate of the pension which may be paid immediately by the institution of the former State".

19 As a preliminary point, the Court dismisses the French Government' s objection that the question referred for a preliminary ruling is not relevant to the outcome of the proceedings between Mr McLachlan and the CNAVTS, since the CNAVTS granted Mr McLachlan a pension at the full rate because he was an ex-serviceman, without referring to the periods completed in another Member State.

21 Mr McLachlan observes, firstly, that the periods of insurance completed in the United Kingdom were taken into account in order to exclude him from the class of unemployed persons receiving benefit, like all persons over 60 years of age who have worked for more than 150 quarterly periods, and secondly, that he was paid only a reduced old-age pension, his pension entitlement being calculated on the basis of the quarterly periods completed in France (120) only, without taking into account those completed in the United Kingdom.

22 Mr McLachlan argues that Article 49(1)(a) of Regulation No 1408/71 means that the CNAVTS had to calculate the amount of the benefit due in accordance with the French legislation.

23 He also argues that by virtue of the principle of equal treatment set out in Article 3 of Regulation No 1408/71 migrant workers in the Community must not be penalized because they have worked partly in one Member State and partly in another. He submits that that article precludes the taking into account in France of periods of employment in the United Kingdom if that has the effect of placing an employed person in a less advantageous position with respect both to old-age insurance and to unemployment insurance. He observes that an employed person who has completed 150 quarterly periods, all of them in France, would be entitled to a full pension, while an employed person who has completed only 120 quarterly periods in France without having worked in the United Kingdom would have received unemployment benefit.

24 Mr McLachlan considers that the principle of equal treatment necessitated a choice between two solutions: either to take into account the quarterly periods completed in the United Kingdom and to pay him a pension at the full rate, or else to take into account only the quarterly periods completed in France, and accordingly find that he did not fulfil the conditions for old-age insurance and refer him back to benefits under unemployment insurance.

25 The Court notes that the actual wording of the question submitted to it by the Cour de Cassation makes it clear, as also do the grounds of the judgment of the Cour d' Appel, Paris (see paragraph 16 above), that the exclusion of Mr McLachlan from the receipt of unemployment benefits is the subject neither of the question referred to the Court for a preliminary ruling nor of the main proceedings. That question is solely concerned with the point whether, having regard to Regulation No 1408/71, periods of insurance completed in another Member State can be taken into account in determining the rate of the old-age pension but can be disregarded in calculating its amount.

26 In view of the fact that when Mr McLachlan requested payment of his pension, he did not satisfy the conditions laid down by all the legislation under which he had completed periods of insurance, since he had not reached the age of 65 years required by the legislation of the United Kingdom, the present case comes under Article 49 of Regulation No 1408/71.

27 According to Article 49(1)(a),

"1. If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the legislations of the Member States to which he has been subject, taking into account where appropriate the provisions of Article 45, but satisfies the conditions of one or more of them only, the following provisions shall apply:

(a) each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of the benefit due, in accordance with the provisions of Article 46 ..."

31 However, Article 49 does not preclude the legislation of a Member State whose conditions are satisfied from taking periods of insurance completed under the legislation of another Member State into account for the purposes of the acquisition of the right to an old-age pension and for determining the rate of that pension. Moreover, that article cannot preclude their being taken into account, since the Court has consistently held that Regulation No 1408/71 may not be interpreted as meaning that it may result in depriving migrant workers of the advantages which they could have claimed under the legislation of a single Member State (judgment in Case C-302/90 Faux [1991] ECR I-4875, paragraph 28).

32 Nor can a provision such as that at issue here be criticized on the basis of Article 3 of Regulation No 1408/71.

33 According to paragraph 1 of that article, "subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State".

34 Rules such as those at issue do not constitute direct or indirect discrimination on the ground of nationality, since not only are they applicable without distinction, but it has also not been shown that, among workers who have completed periods of insurance in France and in another Member State, they affect nationals of other Member States more severely than French nationals.

35 As regards the alleged discrimination between workers who have completed periods of insurance in France only and those who have also completed periods of insurance in another Member State, it must be noted, as the Paris Cour d' Appel observed (see paragraph 16 above), that the main proceedings relate not to Mr McLachlan' s exclusion from the unemployment insurance system, but to the calculation of his entitlement to an old-age pension under the French scheme.

36 The alleged discrimination is said to consist in the fact that the French institutions failed to take into account the periods of insurance completed in the United Kingdom in calculating the amount of the pension payable by them, whereas they would have taken those periods into consideration if they had been completed in France.

37 As observed above (paragraph 29), the failure to take those periods into account is inherent in the system under Regulation No 1408/71, which allowed different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights. On this point, the German Government has rightly observed that each State pays the benefits which correspond to the periods completed under its legislation.

38 As the Court held in its judgment in Case C-199/88 Cabras [1990] ECR I-1023, paragraphs 30 and 31, the disadvantages resulting from the splitting of benefits, which are in any case limited as far as possible by certain provisions of Regulation No 1408/71, are inherent in the fact that Article 51 of the Treaty is not designed to organize a common social security system but merely to lay down rules for the coordination of the social security schemes of the Member States.

39 In those circumstances, the failure to take periods of insurance completed under the legislation of another Member State into account in calculating the amount of the pension cannot infringe the principle of non-discrimination, which in the context of Regulation No 1408/71 finds expression in Article 3.

40 Consequently, the answer to the question referred to the Court for a preliminary ruling must be that Article 3(1) and Article 49 of Regulation No 1408/71 are to be interpreted, where entitlement to an old-age pension is available from the age of 60 under the basic statutory scheme of a Member State to a worker under the age of 65 who has completed periods of employment in that State and in another Member State where there is no entitlement to a pension before the age of 65 years, as not precluding the taking into account of the periods completed in the latter State solely in order to determine the rate of the pension which may be paid immediately by the institution of the former State.

Costs

41 The costs incurred by the German and French Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Cour de Cassation, France, by judgment of 25 March 1993, hereby rules:

Article 3(1) and Article 49 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted, where entitlement to an old-age pension is available from the age of 60 under the basic statutory scheme of a Member State to a worker under the age of 65 who has completed periods of employment in that State and in another Member State where there is no entitlement to a pension before the age of 65, as not precluding the taking into account of the periods completed in the latter State solely in order to determine the rate of the pension which may be paid immediately by the institution of the former State.