Court of Justice 22-03-1972 ECLI:EU:C:1972:24

Data

Court: Court of Justice

Case date: 22 maart 1972

Verdict

JUDGMENT OF 22.3.1972 — CASE 80/71 MERLUZZI v CAISSE MALADIE PARIS

In Case 80/71

Reference to the Court under Article 177 of the EEC Treaty by the Commission de première instance du contentieux de la sécurité sociale et de la Mutualité Sociale Agricole de Paris for a preliminary ruling in the action pending before that court between

ADALGISA MERLUZZI, residing at Casablanca, Morocco,

v

CAISSE PRIMAIRE CENTRALE D'ASSURANCE MALADIE DE LA RÉGION PARISIENNE, PARIS, on the interpretation of Annex G (IV) B to Regulation No 3 of the Council concerning social security for migrant workers, amended by Article 4 of Regulation No 419/68 of the Council of 5 April 1968 (JO 1968, L 87),

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

1. Mrs Adalgisa Merluzzi, an Italian national residing in Morocco, was in employment in that country over a period of more than ten years from 1930.

She asked the Caisse Primaire Centrale d'Assurance Maladie de la Région Parisienne (hereinafter referred to as the ‘Caisse Primaire’) to allow her to pay contributions for old-age insurance based on this employmen :

In support of her request she cited :

the French Law of 10 July 1965, No 65/555, granting French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme;
Section IV B of Annex G to Regulation No 3 of the Council, laying down the conditions under which the provisions of that law are applied to nationals of the other Member States, which are defined as follows :

‘The occupation which qualifies for voluntary insurance under the French scheme shall not be or shall not have been carried out either on French territory or on the territory of which the worker is a national ;
At the time of applying for participation in benefits under the law the worker shall be required to prove that he has been resident in France for at least ten years, whether or not consecutive, or that he has been subject to French legislation on a compulsory or optional continued basis during the above-mentioned period.’

The applicant considers that she fulfils these conditions because:

she engaged in her wage-earning occupation outside French territory and outside the territory of the State of which she is a national;
French legislation being at the time the only legislation applicable to nationals other than Moroccans (with the exception of nationals of certain States not including Italy), she had been subject to French legislation for a period of at least ten years.

In the view of the Caisse Primaire, Mrs Merluzzi does not satisfy the lastmentioned condition, since the argument relied on by her amounts to considering Morocco as French territory, which at the same time excludes the possibility of Mrs Merluzzi's having engaged in her wage-earning occupation ‘Outside French territory’.

Having emphasized in the grounds of its judgment that:

the wording of Section IV B of Annex G to Regulation No 3 ‘draws a distinction between France qua territory and the application of French law outside French territory’ and that it ‘does not treat the fact of being subject to French law and residence in France as a worker as being equivalent’;
Article 2(1) and (2) of the dahir of 12 August 1913 does not with certainty imply that ‘foreign nationals’ were subject in Morocco to French law, whether compulsorily or voluntarily,

the national court by decision of 25 March 1971 referred the following question to the Court of Justice for a preliminary ruling. ‘Do the provisions of Article 2(1) and (2) of the dahir of 12 August 1913 which provide that “French nationals shall enjoy in the French Protectorate of Morocco all the private rights accorded them in France under French law” and that “Foreign nationals shall enjoy the same private rights as French nationals, with no conditions or restrictions other than those resulting from their “national law”” imply that a national of a Member State of the Community who relies on these provisions was subject to French legislation either on a compulsory or optional basis, within the meaning of Section IV of Annex G to Regulation No 3 of the Council of the European Communities?’

2. A certified copy of the decision making the reference was received at the Court Registry on 9 September 1971.

The Commission of the European Communities, represented by Italo Teichini, its Legal Adviser, acting as Agent, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice.

Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

The oral observations of the Commission of the European Communities were presented at the hearing on 19 January 1971.

On 21 January 1972 the Court invited the Caisse Primaire Centrale d'Assurance Maladie de Paris to furnish particulars as to the period of work completed by Mrs Merluzzi and as regards her possible membership of a voluntary old-age insurance scheme governed by French law.

The Caisse Primaire supplied these particulars to the Court on 2 February 1972.

The Advocate-General delivered his opinion at the hearing on 7 March 1971.

II — Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice

The observations submitted in accordance with Article 20 of the Statute of the Court may be summarized as follows:

Observations submitted by the Commission of the European Communities

The Commission first traces the origin of the provisions of Community law to which the question referred relates. It points out that Law No 65/555 of 10 July 1965 expressly refers to French nationals. In its Ministerial Circular No 50 SS of 8 June 1966 the French Government notified foreign Governments which had entered into agreements on social security with France that their nationals could not rely on the provisions of that law. Such a restriction was, in so far as Member States of the Community were concerned, inadmissible in the light of Regulations Nos 3 and 4 of the Council. For that reason the Administrative Committee on Social Security for Migrant Workers was obliged to examine the problems to which the French Law of 10 July 1965 could give rise. This examination resulted in the adoption by the Council of:

the provisions of Article 9 of Regulation No 1408/71 (not as yet in force) supplemented — as regards the conditions for the application of the French Law of 10 July 1965 to nationals of other Member States — by the provisions of Article 3 of Section C of Annex V to that regulation ;
Regulation No 419/68 of 5 April 1968 (JO 1968, L 87), amending and supplementing at Article 4 thereof Section IV of Annex G to Regulation No 3 with a view to rendering the French Law of 10 July 1965 immediately operative in relation to nationals of Member States.

The Commission emphasizes that the French Delegation had submitted to the aforementioned Administrative Committee a note dated 16 April 1966 from which it appeared inter alia that in the French Government's opinion the Law of 10 July 1965 ought to apply only to nationals of the other Member States who were in a situation analogous to that of French workers abroad, and more specifically to nationals of the other Member States who

have a particular link with the French social security system, attested by a certain number of years of contribution;
are or have been engaged in their wage-earning occupation outside their country of origin.

The proposals of the French Delegation did not give rise to objections on the part of the Administrative Committee, since residence outside the country of origin was also required in the case of French nationals and since — in the opinion of that Committee — the requirement of a certain prior period of insurance in France was not discriminatory according to the ratio legis of Regulation No 3.

The Commission examines the question bearing in mind these considerations. In its opinion, the question is whether Regulation No 3 applies to a worker who is in a situation identical to that of the plaintiff in the main action or, more precisely, whether that worker may be considered as a migrant worker within the meaning of Article 4 of the said regulation. The answer to this question depends on matters of fact of which the Court is not at present in possession. If Mrs Merluzzi has worked only in Morocco, it would be difficult to attribute to her the status of migrant worker within the meaning of Regulation No 3, since Morocco is not a Member State of the Community.

Besides, the fact that the dahir of 12 August 1913 conferred on foreign nationals residing in Morocco the same private rights as it did on French nationals did not necessarily imply that foreign nationals were compulsorily subject to French law. The same problem could be put in relation to French nationals, since the fact that the dahir grants them the enjoyment of all private rights recognized in France by French law can similarly not imply that they are compulsorily subject to French law in matters of social security.

It follows from these considerations that the expression ‘subject to French legislation on a compulsory or optional continued basis’, contained in Section IV B of Annex G to Regulation No 3 of the Council and referred to by the national court, gives rise in the present case to a question of fact which only the person concerned may and must allow to be resolved, by indicating the periods during which she was in fact a member of a French social security scheme.

The Commission concludes by suggesting that the question referred be answered as follows :

‘The expression “has been subject to French legislation”, contained in Section IV B of Annex G to Regulation No 3 of the Council implies that the person concerned should have been subject to French insurance, which can only result from a French legislative provision and which must be attested by the payment of contributions to a legal system of social security.
It is for the person concerned to produce evidence to that effect.’

Grounds of judgment

1 By judgment of 25 March 1971, received at the Court Registry on 9 September 1971, the Commission de Première Instance du Contentieux de la Sécurité Sociale de Paris requested the Court to give a preliminary ruling under Article 177 of the EEC Treaty on the question whether the provisions of Article 2(1) and (2) of the Moroccan dahir of 12 August 1913, extending to ‘foreign nationals’ the enjoyment of private rights accorded in France by French Law to French nationals, imply ‘that a national of a Member State of the Community who relies on these provisions was subject to French legislation either on a compulsory or optional basis within the meaning of Article 4 of Section IV of Annex G to Regulation No 3 of the Council’.

2 As worded, the question seems to have the purpose of interpreting the Moroccan dahir of 12 August 1913 so as to determine the ambit of the French legislation referred to in Section IV B of Annex G to Regulation No 3.

3 The Court, whilst having jurisdiction to interpret the provisions of Community law, has no jurisdiction in the context of Article 177 to rule on provisions of internal law.

4 However, it may extract from the question referred those elements which relate solely to the interpretation of Section IV B of Annex G to Regulation No 3.

5 Under Section IV B of Annex G to that regulation, the French Law No 65/555 of 10 July 1965, granting French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, is applied to nationals of the other Member States subject to two conditions.

6 Under the first condition, the occupation giving rise to voluntary insurance under the French scheme must not be or have been engaged in either on French territory or on the territory of the State of which the worker is a national.

7 In addition, the worker must at the time of applying to take advantage of the law, produce evidence either that he has been resident in France for at least ten years — whether or not consecutive — or that he has been subject to French legislation on a compulsory or optional continued basis during the same period.

8 It appears from the file supplied by the national court that the case bears particularly on the question whether the plaintiff in the main action, an Italian national, who has worked neither on French territory nor in Italy but in Morocco, was subject to French legislation on a compulsory or optional continued basis.

9 Thus, in order to know whether the case falls within Annex G, it appears necessary to inquire first whether the person concerned has resided in France for at least ten years.

10 That is a question of fact, which it is not for the Court of Justice but for the national court to decide.

11 However, the benefit of Annex G may also be claimed if the worker has been subject for at least ten years to French legislation on a compulsory or optional continued basis.

12 That question, which concerns solely the application of French law, or possibly of Moroccan law, is not as such one which the Court of Justice has jurisdiction to decide.

13 Only if the national court were to consider that the plaintiff in the main action was subject to French legislation would she, as a consequence, have under Annex G the option of joining the voluntary old-age insurance scheme.

14 In that connexion it should be observed that Regulation No 3 itself defines the term ‘legislation’ as it appears in its provisions, including those of Section IV B of Annex G.

15 It emerges from Article 1 of that regulation that the term refers to the laws, regulations and other enforceable provisions present and future of each Member State relating to the social security schemes and branches of social security set out in Article 2(1) and (2).

16 The answer should therefore be that Section IV B of Annex G to Regulation No 3 must be interpreted as meaning that Law No 65/555 of 10 July 1965, granting to French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, applies to nationals or the other Member States who, at the date of their application, have been subject for at least ten years to one of the French schemes listed in Article 2(1) and (2) of Regulation No 3.

Costs

17 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

On those grounds,

Upon reading the pleadings ;

Upon hearing the report of the Judge-Rapporteur;

Upon hearing the oral observations of the Commission of the European Communities;

Upon hearing the opinion of the Advocate-General;

Having regard to the Treaty establishing the European Economic Community, especially Articles 51 and 177;

Having regard to Regulation No 3 of the Council concerning social security for migrant workers;

Having regard to Regulation No 419/68 of the Council of 5 April 1968 (JO 1968, L 87);

Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20;

Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the question referred to it by the Commission de Première Instance du Contentieux de la Sécurité Sociale de Paris, by order of that court dated 25 March 1971, hereby rules:

Section IV B of Annex G to Regulation No 3 must be interpreted as meaning that Law No 65/555 of 10 July 1965, granting to French nationals who are or were engaged in occupations abroad the option of joining a voluntary old-age insurance scheme, applies to nationals of the other Member States who, at the date of their application, have been subject for at least ten years to one of the French schemes listed in Article 2 (1) and (2) of Regulation No 3.

Lecourt

Mertens de Wilmars

Kutscher

Donner

Trabucchi

Monaco

Pescatore

Delivered in open court in Luxembourg on 22 March 1972.

A. Van Houtte

Registrar

R. Lecourt

President