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BY JUDGMENT OF 24 MARCH 1967, RECEIVED AT THE COURT REGISTRY ON 21 APRIL 1967, THE BELGIAN CONSEIL D' ETAT, ADMINISTRATIVE LAW DIVISION, 6TH CHAMBER, REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 28 OF REGULATION NO 3 OF THE COUNCIL OF MINISTERS OF THE EEC .
THE FIRST QUESTION IN THIS REQUEST FOR INTERPRETATION IS WHETHER THE ABOVE-MENTIONED ARTICLE 28 MUST BE CONSTRUED AS CONFERRING UPON A MIGRANT WORKER IN CERTAIN CIRCUMSTANCES ' THE RIGHT TO ELECT EITHER THE METHOD OF CALCULATION PROVIDED BY ARTICLE 28 OR THE METHOD OF CALCULATION RESULTING FROM THE APPLICATION OF THE LEGISLATION UNDER WHICH HE HAS COMPLETED THE INSURANCE PERIOD '.
IT IS CLEAR FROM THE TERMS OF THE THREE SUBSEQUENT QUESTIONS THAT THIS REQUEST CONCERNS IN PARTICULAR THE QUESTION WHETHER, AND TO WHAT EXTENT, SOCIAL SECURITY INSTITUTIONS ARE EMPOWERED : ( 1 ) IN PURSUANCE OF ARTICLE 28 OF REGULATION NO 3, TO CALCULATE PRO RATA THE PENSIONS WHICH THEY GRANT BY VIRTUE OF THE LEGISLATION WHICH THEY APPLY; AND ( 2 ) IN THE CASE OF A MIGRANT WORKER WHO DOES NOT REQUIRE AGGREGATION IN ANY MEMBER STATE IN ORDER TO ACQUIRE A RIGHT TO BENEFIT, TO DEDUCT FROM THE NOTIONAL PERIODS WITH WHICH THE LEGISLATION APPLIED BY THEM CREDITS THE PERSON CONCERNED THOSE PERIODS WHICH HAVE ALREADY BEEN EMPLOYED IN DETERMINING THE AMOUNTS OF OTHER PENSIONS IN OTHER MEMBER STATES .
HOWEVER, IN ITS STATEMENT OF CASE THE COMMISSION HAS PUT FORWARD THE VIEW THAT IN ORDER TO TAKE ADVANTAGE OF THE TRANSITIONAL PROVISIONS OF ARTICLE 11(1 ) OF THE BELGIAN LAW OF 12 JULY 1957 AND OF THE ROYAL DECREE OF 30 JULY 1957 - ACCORDING TO WHICH EMPLOYEES WHO ATTAIN THE AGE AT WHICH THEY ACQUIRE A RIGHT TO A PENSION BEFORE 31 DECEMBER 1961 AND WHO CAN SHOW EVIDENCE OF 12 YEARS' INSURANCE DURING THE 15 YEARS PRIOR TO THE PAYMENT OF THE PENSION ARE DEEMED TO HAVE COMPLETED A FULL PERIOD OF INSURANCE OF 45 YEARS IN BELGIUM - MR GUISSART WAS OBLIGED TO HAVE RECOURSE TO LUXEMBOURG INSURANCE PERIODS TO SUPPLEMENT THE 11 YEARS TAKEN INTO CONSIDERATION BY THE BELGIAN LEGISLATION IN ORDER TO ATTAIN THE MINIMUM OF 12 YEARS REQUIRED BY THE TRANSITIONAL PROVISIONS REFERRED TO ABOVE .
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THIS POINT OF VIEW MUST NOT, THEREFORE, BE EXCLUDED FROM THE INTERPRETATION REQUESTED .
AS REGARDS THE FIRST QUESTION
NEITHER REGULATION NO 3 NOR REGULATION NO 4 PROVIDES FOR AN OPTION WITHIN THE MEANING SUGGESTED BY THE CONSEIL D' ETAT IN ITS FIRST QUESTION .
ALTHOUGH ARTICLES 14 AND 14A OF REGULATION NO 3 AND ARTICLES 12, 12A AND 13 OF REGULATION NO 4 PROVIDE FOR SUCH AN OPTION, IT IS ONLY GRANTED TO A LIMITED NUMBER OF MIGRANT WORKERS, FOR EXAMPLE THOSE EMPLOYED AT DIPLOMATIC POSTS OR IN THE PERSONAL SERVICE OF OFFICIALS OF SUCH POSTS AND THE AUXILIARY STAFF OF THE EUROPEAN COMMUNITIES .
MOREOVER, THE OPTION IS RESTRICTED TO A CHOICE BETWEEN THE LEGISLATION OF THE COUNTRY OF EMPLOYMENT AND THAT OF THE COUNTRY OF ORIGIN .
THE APPLICATION OF THE SYSTEM ESTABLISHED BY ARTICLES 27 AND 28 OF REGULATION NO 3 DEPENDS THEREFORE ONLY ON THE OBJECTIVE CONDITIONS AND CIRCUMSTANCES IN WHICH THE MIGRANT WORKER CONCERNED IS SITUATED .
AS REGARDS QUESTIONS 2, 3 AND 4
ARTICLE 51 OF THE TREATY IS ESSENTIALLY INTENDED TO COVER CASES IN WHICH THE LEGISLATION OF A MEMBER STATE DOES NOT BY ITSELF CONFER ON THE PERSON CONCERNED A RIGHT TO BENEFIT BECAUSE HE HAS NOT COMPLETED A SUFFICIENT NUMBER OF INSURANCE PERIODS UNDER THAT LEGISLATION .
TO THIS INTENT IT PROVIDES, FOR THE BENEFIT OF A MIGRANT WORKER WHO HAS BEEN SUCCESSFULLY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF SEVERAL MEMBER STATES, THAT THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED . IT FOLLOWS FROM THE FOREGOING THAT THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 ONLY APPLY IN CERTAIN SPECIFIC CASES AND THAT THEY HAVE NO APPLICATION IN THE CASE OF A MEMBER STATE IN WHICH THE OBJECTIVE SOUGHT BY ARTICLE 51 IS ACHIEVED BY VIRTUE OF NATIONAL LEGISLATION ALONE . AT LEAST UNDER THOSE SYSTEMS BASED ON INSURANCE PERIODS UNDER WHICH THE AMOUNT OF A RETIREMENT PENSION VARIES IN PROPORTION SOLELY TO THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED, THESE PROVISIONS DO NOT APPLY TO A MIGRANT WORKER WHO DOES NOT HAVE TO RESORT TO THE AGGREGATION OF INSURANCE PERIODS IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT IN ANY OF THE MEMBER STATES IN WHICH HE HAS COMPLETED INSURANCE PERIODS .
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HOWEVER, THE COMPLEXITY OF THE PROBLEMS POSED BY THE CO-ORDINATION OF NATIONAL LEGISLATIVE SYSTEMS PREVENTS THIS INTERPRETATION FROM BECOMING AN ABSOLUTE PRINCIPLE . IN CERTAIN CIRCUMSTANCES IT MIGHT LEAD TO THE GRANT OF UNJUSTIFIED ADVANTAGES WHICH THE NATIONAL LEGISLATURE MAY WISH TO AVOID . THIS MIGHT BE THE CASE WHERE, AS IN THIS INSTANCE, BENEFITS IN RESPECT OF INSURANCE PERIODS ACTUALLY COMPLETED IN ONE STATE ARE PAYABLE IN RELATION TO ONE SINGLE PERIOD AT THE SAME TIME AS BENEFITS IN RESPECT OF NOTIONAL PERIODS IN ANOTHER MEMBER STATE . IN THESE CIRCUMSTANCES IT MUST BE PERMISSIBLE FOR A STATE WHOSE LEGISLATION PROVIDES FOR NOTIONAL PERIODS IN FAVOUR OF THE INSURED PERSON TO DEDUCT FROM SUCH PERIODS THE PERIODS ACTUALLY COMPLETED IN ANOTHER MEMBER STATE, WITHOUT ITS BEING POSSIBLE TO CONSIDER THIS PROCEDURE AS CONTRARY TO ARTICLE 51 OF THE TREATY . HOWEVER, IT IS FOR THE NATIONAL AUTHORITY TO WHICH THE SOCIAL SECURITY INSTITUTION IS RESPONSIBLE, AND NOT THE COMMUNITY AUTHORITY, TO DECIDE ON THIS ON THE BASIS OF ITS OWN LEGISLATION .
ON THE OTHER HAND, AS THE COMMISSION SUGGESTS, IN THE CASE OF A MIGRANT WORKER WHO HAS HAD TO AGGREGATE PERIODS COMPLETED ABROAD IN ORDER TO ACQUIRE A RIGHT TO BENEFIT, ARTICLES 27 AND 28 OF REGULATION NO 3 APPLY .
THE COST 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 BELGIAN CONSEIL D' ETAT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN CONSEIL D' ETAT, ADMINISTRATIVE LAW SECTION, 6TH CHAMBER, BY JUDGMENT OF THAT COURT DATED 24 MARCH 1967, HEREBY RULES :
1 . THE APPLICATION TO A MIGRANT WORKER OF THE PROVISIONS OF ARTICLES 27 AND 28 OF REGULATION NO 3 DOES NOT DEPEND UPON THE FREE CHOICE OF THE PERSON CONCERNED BUT ON HIS OBJECTIVE SITUATION;
2 . AT LEAST IN THOSE SYSTEMS BASED ON INSURANCE PERIODS UNDER WHICH THE RETIREMENT PENSION VARIES IN PROPORTION SOLELY TO THE INSURANCE PERIODS WHICH HAVE BEEN COMPLETED, ARTICLES 27 AND 28 OF REGULATION NO 3 DO NOT APPLY TO A MIGRANT WORKER WHO, IN ORDER TO ACQUIRE THE RIGHT TO BENEFIT, DOES NOT HAVE TO RESORT TO AGGREGATION IN ANY OF THE MEMBER STATES IN WHICH HE HAS COMPLETED INSURANCE PERIODS;
3 . THE DECISION AS TO COSTS IS A MATTER FOR THE BELGIAN CONSEIL D' ETAT .
