OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 25 MARCH 1969 (*1)

Mr President,

Members of the Court,

The reference for a preliminary ruling which has to be considered today concerns the law relating to the social security for migrant workers. It arises out of the following facts.

Mr Achille Torrekens, a Belgian national resident in France, worked for a period of 14 years and 8 months in France. In 1962 he applied (presumably because he had reached the age limit) to the Caisse régionale de sécurité sociale du nord de la France for the allowance for aged wage-earners.

The object of this allowance, which was introduced in 1941, is to secure a minimum old-age pension for wageearners whose working life does not give them a right to social insurance benefits under the scheme established in 1930. At the present time the main provisions of this scheme are set out in the Ordonnance of 2 February 1945. According to that Ordonnance the beneficiary must be a French national (except as otherwise provided in bilateral conventions such as the Franco-Belgian Protocol of 17 January 1948). His total income must not exceed a certain sum and he must have completed 15 years of gainful employment or — in a case such as this — 25 years in France. If he satisfies these conditions he receives payment of a fixed sum which bears no relation to the duration of his gainful employment and the amount of his previous wages.

The Caisse régionale rejected Mr Torrekens' application on 17 May 1962, because it held that the conditions of the Ordonnance of 2 February 1945 referring to the duration of gainful employment in France had not been fulfilled. Mr Torrekens challenged this decision by appealing to the Commission de premiere instance de sécurité sociale de Lille and arguing that in accordance with Regulation No 3 of the Council concerning social security for migrant workers periods of employment in Belgium and assimilated periods which had been completed from 1909 to 1920, or more precisely a total period of employment in Belgium of 6 years and 7 months and also a period of 4 years and 3 months military service in Belgium, had to be added to the period of employment in France. If this total period of 10 years and 10 months is taken into account, he has completed a period of employment of more than 25 years. In fact the Commission de premiere instance accepted this argument. By a decision of 13 November 1962 it declared that the applicant was entitled to the allowance for aged wage-earners.

But this was not the end or the matter, because the Caisse régionale then appealed to the Cour d'Appel of Douai. The result of the appeal was that judgment of 8 October 1963, which attracted considerable attention, and in which the parties were ordered to refer the dispute to the Administrative Commission on social security for migrant workers, which had been established under Regulation No 3. The Cour de Cassation in turn annulled this judgment by its decision of 1 December 1965 on the ground of infringement of Article 177 of the EEC Treaty and referred the case to to the Cour d'Appel of Amiens. This led to a judgment by the Cour d'Appel of Amiens of 7 July 1966, which upheld the decision given in favour of the applicant by the Commission de premiere instance and was followed by yet another appeal by the Caisse régionale to the Cour de Cassation. This is the present position in the national proceedings. It is already evident from this recital of the facts that the principal question in these proceedings is whether under Article 27 of Regulation No 3 account can be taken of periods of employment and assimilated periods completed in other countries in order to substantiate a claim for the French allowance for aged wage-earners or whether — which is the opinion expressed by the Caisse régionale — Regulation No 3 only applies to old-age pensions based on contributions.

Having regard to this ‘serious difference of opinion on a question of interpretation’ the Cour de Cassation by its judgment of 24 October 1968 stayed the proceedings and referred the question of interpretation which had arisen to the European Court of Justice pursuant to Article 177 of the EEC Treaty.

The French Government, the Commission of the EEC and Mr Torrekens lodged written observations on the reference. These parties have also submitted statements during the oral procedure.

Bearing in mind all these facts we now have to ask ourselves the question what answer must be given to the Cour de Cassation.

This may also have to be done in this case. An examination of the whole of the judgment containing the reference, and in particular of the statement of the reasons upon which the appeal to the Cour de Cassation was based which it mentions, makes it sufficiently clear what the issue is in this case. The Caisse régionale has alleged infringement and misapplication of Articles 1, 2, 3, 27 and 28 of Regulation No 3, of Annexes B and D to this regulation and also of the Franco-Belgian Protocol of 17 January 1948 mentioned in Annex D. It is therefore necessary to examine whether these texts permit the interpretation that different periods of employment or assimilated periods can be aggregated in order to acquire the right to the allowance for aged wage-earners in France. We can therefore proceed on the basis that the Cour de Cassation intended the Court to consider this question.

The first comment I have to make on these observations is that hitherto the Court — although it was invited on many occasions to take the opposite view — has refused as a matter of principle to consider whether the questions referred to it are material to the ultimate decision of the national court. It was not until its judgment of 19 December 1968 was delivered in Case 13/68 that it showed any willingness to abandon this view. This judgment in fact states ‘Provided that the selection of the provision to be interpreted is not manifestly a mistake the reference to the Court is valid’. So far as the relevance of the question to the ultimate decision of the national court is concerned, this can therefore only be challenged at best by establishing that there has been a manifest error.

However, such a finding is not justified by the facts of this case. In the first place it does not appear to be certain whether Article 6(2) of Regulation No 3 in fact has the meaning attributed to it by the French Government. If we proceed, as the Commission does, on the basis that a strict interpretation is necessary, it can just as well be construed as meaning that the conventions mentioned in Annex D continue to apply notwithstanding Article 5 which provides that the regulation shall replace certain social security conventions. This at any rate is the view put forward in a proposal of the Commission of 11 January 1966. If Article 6(2) were considered in this light it would not refer to an exclusive application of the conventions mentioned in Annex D. If on the other hand the wording of the Franco-Belgian Protocol is examined (the question whether we are entitled to interpret it must for the time being remain open) we find in fact that in the case of Belgian workers it refers to French law. This is established by the words ‘l'allocation aux vieux travailleurs salaries sera accordée dans les conditions prévues pour les travailleurs français par la legislation sur les vieux travailleurs salaries, a tous les vieux travailleurs salaries belges, sans ressources suffisantes, qui auront au moins 15 années de résidence ininterrompue en France a la date de la demande’ (‘the old-age allowance for aged wage-earners shall be granted in accordance with the conditions laid down for French workers by the laws applying to aged wage-earners, to all Belgian aged wage-earners without sufficient means who have been resident in France for an uninterrupted period of 15 years at the date of the application’). It may very well be this wording which caused the Cour de Cassation to construe the reference to French legislation as being a reference to the legal position arising out of the provisions of Regulation No 3. The adoption of such an interpretation, which at least does not appear to be manifestly wrong, means that the provisions of Regulation No 3 would also be relevant to this case, even if the Franco-Belgian Protocol applies.

We therefore find that there are plausible considerations for justifying the request for interpretation and there is no reason to limit the interpretation of Regulation No 3 to Article 6 thereof.

3. With regard to the answers to the questions which have been referred to the Court I consider it appropriate to take them in the order suggested by the Commission. Accordingly the first question is whether the French allowance for aged wage-earners does in fact come within the scope of Regulation No 3.

As the Commission has shown, this question can be easily answered on the basis of the wording of Regulation No 3. Reference can first be made to Article 2(1)(c), a general provision stating that the regulation applies to all laws relating to ‘old-age benefits’. Reference can then be made to Article 3 which provides that Annex B specifies the social insurance legislation in force in each Member State at the date of adoption of the regulation, to which the regulation applies. In fact the ‘allowance for aged wage-earners’ is mentioned in Annex B under the heading ‘France’ at letter (g). Finally, reference can be made to Annexes D and E. Annex D sets out the provisions of social security conventions which are not affected by Regulation No 3 whereas Annex E sets out the benefits not payable abroad. In these annexes the allowance for aged wage-earners under French law is mentioned in each case, which would not have been necessary if the allowance did not come within the scope of Regulation No 3.

Therefore in answering the first question there is no need to consider whether — and this is the view held by the Caisse régionale — Regulation No 3 does not refer to non-contributory schemes. Nevertheless, having regard to the Commission's submissions on this point the following should be noted. It appears to be an established fact that the French allowance for aged wage-earners is paid out of social security funds provided by employers' contributions. In addition even the payment of social security contributions by workers appears to be of some importance in that at least one year's contributions must in fact have been paid during the period from 1930 to 1945 and also for every year after 1945. However, even more important is the fact that Regulation No 3 does not actually make any distinction between non-contributory and contributory schemes. Such a distinction — as the Commission has shown — would have appeared to be artificial having regard to the many schemes which provide for funds to be raised from a number of sources. For this reason in the course of the long negotiations and in the preparatory studies for the purpose of settling the provisions of Regulation No 3, as the history of how it came into being clearly shows, this distinction was abandoned and it was expressly provided in Article 2 of Regulation No 3 that it applied to non-contributory schemes.

There can therefore be no doubt that Regulation No 3 applies to the French allowance for aged wage-earners.

4. Following on from this conclusion is the further question whether there are any special reasons for not applying Article 27, that is to say, the principle that insurance periods and assimilated periods are aggregated if a worker has been successively or alternately insured under the legislation of two or more Member States. In my opinion the Commission has also adduced convincing arguments on this point.

In particular the fact that the grant of the French allowance depends upon the fulfilment of certain periods of employment is unimportant. Although Article 27 mentions ‘insurance periods and assimilated periods’ the determinative definitions in Article 1 of Regulation No 3 show, however, that the expression ‘insurance periods’ includes contribution periods or insurance periods (cf. letter (p)) and the ‘assimilated periods’ are periods treated as insurance periods or as periods of employment (cf. letter (r)).

Similarly the fact that the word pensions' appears in the heading of the third Chapter is unimportant. The Commission offers the persuasive explanation that this designation was chosen to distinguish the third Chapter from the fifth in which conditions for death benefits that is to say for any ‘non-recurring payment in the event of death’ within the meaning of Article 1(t). The decisive fact is therefore that the text of the third Chapter deals in a general way with ‘benefits’. They are defined in Article 1(s) in words which certainly comprise the periodic payments to aged wage-earners under French law.

It must finally be emphasized that the application of Article 27 does not depend upon the question whether the French allowance is based on a non-contributory scheme or not. As the Commission has shown, giving as an example unemployment benefit paid out of public funds, aggregation within the meaning of Article 27 is not prevented because of the existence of such features. In this connexion reference can also be made to the Luxembourg system of old-age benefits financed from a number of sources, which was considered in another reference to the Court for a preliminary ruling and to which Article 27 applies, even though part of the benefit is a fixed sum charged to public funds independently of contributions and reference can be made to the judgments of the Court which lay down that the application of Articles 27 and 28 is not excluded even in the case of those laws which calculate the amount of the benefit without reference to insurance periods completed (cf. Cases 100/63 and 4/66). Therefore there is in fact no reason why Article 27 should not apply to the French allowance for aged wage-earners.

The detailed methods of computing benefits and in particular the method of proportional calculation under Article 28 do not appear to have been challenged so far. I do wish, however, at least to mention that the Commission's submissions on this aspect of the matter appear to me to be convincing. They are that when aggregating or applying proportional calculation it is necessary to determine which periods have been completed under the law of one Member State and which under the law of another Member State. This appears to be of importance in this case especially with reference to Mr Torrekens' military service in the Belgian army during the First World War. This period — apparently does not count under Belgian law, because it was prior to 1926, that is to say, before the entry into force of compulsory old-age insurance. However the period of military service in Belgium pursuant to the Exchange of Letters of 29 July 1953 mentioned in Annex D to Regulation No 3 is taken into account under French law, that is to say, it is treated as being a period of employment in France. In computing the fraction for proportional calculation this period must therefore be included in the numerator which only comprises insurance periods completed in France. It is quite clear that this has had an effect on the final amount of the allowance.

But since, as I have mentioned, this particular issue has not yet been dealt with in the main action and therefore is not referred to in the request for interpretation, it does not appear to me to be appropriate to include the Commission's observations in the operative part of the preliminary ruling, however significant they may be for the French courts.

5.The Commission takes the view that it is finally necessary to consider the question whether there are any provisions in the Franco-Belgian Protocol of 17 January 1948 mentioned in Annex D of Regulation No 3 which prevent the possibility of aggregating various periods of employment for the benefit of Belgian wage-earners and which justify, therefore, an exception to the principle laid down in Article 27. This brings us back to a problem which has already been broached at the beginning of my opinion but which must now be examined in greater detail. It has two aspects: it must first be established whether the Cour de Cassation does in fact expect us to interpret this Protocol and then the question must be asked whether under Article 177 of the EEC Treaty the Court has jurisdiction to interpret agreements of this kind.

I will anticipate the answer: in fact I agree with the French Government in doubting whether we can follow the Commission's argument and interpret the Protocol.

It is particularly doubtful whether the assumption can be accepted that the Cour de Cassation in fact asks us to interpret the Franco-Belgian Protocol. In its request it in fact refers to the interpretation ‘of acts of the institution of the Community’, of ‘an interpretation of Community rules’. It is hard to believe that these expressions could be intended to include a bilateral agreement concluded between two Member States. Since on the other hand — as has already been mentioned — the absence of explicit questions makes it difficult to determine clearly the intention of the Cour de Cassation, the main emphasis of the examination should not be placed on this aspect but the question should be asked whether the Court has jurisdiction to interpret the Franco-Belgian Protocol.

As you know the Commission answers this question in the affirmative by referring to Article 50 of Regulation No 3 which provides inter alia that the Annexes referred to in Article 6(2)(e)— including also Annex D which mentions the Franco-Belgian Protocol — are an integral part of the regulation. In my opinion of the Commission it would be illogical to interpret the incorporation of Annex D as meaning that it only refers to the enumeration of the provisions of social security conventions listed therein and not to their actual texts. I am however convinced that a whole series of objections can be deployed against this argument. It must first of all be remembered that some of the Annexes mentioned in Article 50 (for example Annexes B and F) group together the provisions of national laws. If the provisions listed in the Annexes are deemed to be incorporated in Regulation No 3 with the result that the Court has jurisdiction to interpret them, it follows that it has jurisdiction to interpret the said national laws and this is an argument which is certainly not tenable. It must then be pointed out, as the French Government has done, that the argument that the agreements in Annex D are an integral part of the regulation is difficult to reconcile with the retention of the cancellation clauses in Annex D and the procedure provided for in Article 5(3) of Regulation No 3 for making amendments to Annex D.

On the other hand even if Article 50 is interpreted strictly, that is to say, if only the actual enumerations in the Annexes and not the texts are deemed to be an integral part of Regulation No 3 it still has a meaning. I do not just have in mind in this connexion the task of delimitation but also endeavours at interpretation. There is sufficient scope for such endeavours in view, for example, of the concepts of Annex A, the description of legislation in Annex B, the content of Annex C, the general observations of Annex D or the provisions of Annex G. Finally reference must be made to the judgment of the Court of 19 March 1966 (Case 75/63, [1964] E.C.R. 177) which also gave a preliminary ruling on Regulation No 3. In it the Court, ruling on the question whether in the event the application must succeed under the German-Dutch Convention of 29 March 1951 — mentioned in Annex D — on social security, held that ‘it is not entitled within the framework of Article 177 of the Treaty to interpret rules pertaining to national law’. Therefore the view must be upheld that the Court also has no jurisdiction to interpret the Franco-Belgian Protocol.

If indeed these objections are rejected on the ground perhaps that Regulation No 3 together with the special agreements mentioned in Annex D constitute a coherent system requiring uniform interpretation, and if endeavours are made to ascertain the meaning of the Franco-Belgian Protocol on this basis there is much to be said for adopting the interpretation recommended by the Commission. According to this interpretation — which I have already outlined at the beginning of my opinion — the main purpose of the Protocol is to enable Belgian nationals to obtain the benefit of the French allowances for aged wage-earners (which is in principle linked to French nationality), by making the right to an allowance depend upon the question whether the applicant at the date of his claim establishes that he has been resident in France for an uninterpreted period of fifteen years. The reference to the ‘conditions prevues … par la legislation sur les vieux travailleurs salaries’ (‘conditions provided … by the legislation on aged wage-earners’), so far as periods of gainful employment are concerned cannot therefore be taken to mean that aggregation of periods of employment abroad in the case of Belgian workers is excluded contrary to the principle laid down in Article 27 which also applies to the allowances for aged wage-earners; on the contrary, the ‘French legislation’ to which the Protocol refers is French law as it stands at present as influenced by supranational law which takes precedence over it.

In fact this interpretation, by avoiding any discrimination against foreign workers, can claim to be in close harmony with the principles stated in Article 51 of the Treaty and in Regulation No 3 and repeatedly defined in the relevant case-law of the Court. It complies also with the general legal principle that exceptions to general rules must be capable of being clearly recognized as such (which for example is true in the case of the provisions in Annex E).

It therefore it is assumed that the Court has jurisdiction to interpret the Franco-Belgian Protocol, it only remains for me to state that its text does not exclude the application of Regulation No 3, that is to say, the aggregation of periods of employment completed in various Member States.

6.I therefore submit that the request by the French Cour de Cassation for the interpretation of the law concerning social security for migrant workers be answered as follows:

—Regulation No 3 applies also to the French allowance for aged wage-earners;

—In order to acquire the right to an old-age pension which is based on the duration of the period of employment, periods of employment, which have been completed in a number of Member States under the laws of those States and are treated as insurance periods or as periods of employment, are aggregated under Article 27 of Regulation No 3, whether the application is based on a non-contributory scheme or one which is in part non-contributory.

The Court, following its normal practice, does not have to make any order as to costs. The decision as to costs is a matter for the court making the reference in accordance with the provisions of national law.

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(1) Translated from the German.