Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1970/R3270.html
Cite as: [1970] EUECJ R-32/70

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61970J0032
Judgment of the Court of 1 December 1970.
Union nationale des mutualités socialistes v La Marca Stéphanie.
Reference for a preliminary ruling: Commission de réclamation de Liège en matière d'assurance obligatoire contre la maladie et l'invalidité - Belgium.
Case 32-70.
European Court reports 1970 Page 00987
Danish special edition 1970 Page 00189
Greek special edition 1969-1971 Page 00529
Portuguese special edition 1969-1970 Page 00569

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SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY, OLD-AGE AND DEATH INSURANCE - AGGREGATION OF COMPLETED INSURANCE PERIODS - APPLICATION OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 - PURPOSE - LIMITS

AS THE OBJECT OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 IS TO SIMPLIFY ADMINISTRATION IT CANNOT AFFECT ADVERSELY THE RIGHTS STEMMING FROM ARTICLE 51 OF THE EEC TREATY IN FAVOUR OF INDIVIDUALS . WHERE A PERIOD OF LESS THAN SIX MONTHS CANNOT BE TAKEN INTO ACCOUNT IN ANOTHER MEMBER STATE FOR LACK OF SUFFICIENT INSURANCE PERIODS COMPLETED UNDER ITS LEGISLATION AN ESSENTIAL PREREQUISITE FOR THE APPLICATION OF THIS PROVISION IS LACKING . IN THIS CASE THE CONDITIONS RELATING TO THE ACQUISITION BY THE MIGRANT WORKER OF THE RIGHT TO OLD-AGE, DEATH AND INVALIDITY BENEFITS ARE SOLELY GOVERNED BY THE GENERAL PROVISIONS OF ARTICLES 26 TO 28 OF REGULATION NO 3 .

IN CASE 32/70
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COMMISSION DE RECLAMATION DE LIEGE EN MATIERE D' ASSURANCE OBLIGATOIRE CONTRE LA MALADIE ET L' INVALIDITE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
UNION NATIONALE DES MUTUALITES SOCIALISTES, BRUSSELS,
AND
STEPHANIE CACCIATORE, NEE LA MARCA, 1, QUAI SAINTE-BARBE, LIEGE,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 4 OF THE EEC ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

1 BY A DECISION OF 3 JUNE 1970 THE COMMISSION DE RECLAMATION DE LIEGE EN MATIERE D' ASSURANCE OBLIGATOIRE CONTRE LA MALADIE ET L' INVALIDITE REFERRED TO THE COURT OF JUSTICE, PURSUANT TO ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, THE FOLLOWING QUESTION : " ARE THE PROVISIONS OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 APPLICABLE TO A WORKER SUBJECT TO TYPE A LEGISLATION IN ONE MEMBER STATE, WHO ACQUIRES IN THAT STATE ( IN THE PRESENT CASE, BELGIUM ) THE RIGHT TO SICKNESS AND INVALIDITY INSURANCE BENEFITS BY RELYING ON INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 16 AND 17 OF REGULATION NO 3, AND WHO SUBSEQUENTLY BECOMES AN INVALID BEFORE COMPLETING SIX MONTHS' WORK IN THE STATE WHERE HE IS SUBJECT TO TYPE A LEGISLATION, IN VIEW OF THE FACT THAT NO BENEFITS CAN BE GRANTED BY THE OTHER MEMBER STATE ( IN THIS CASE THE FEDERAL REPUBLIC OF GERMANY ) FOR LACK OF SUFFICIENT INSURANCE PERIODS? "
2 ARTICLE 28 ( 2 ) OF REGULATION NO 4 PROVIDES :
" IF THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE DO NOT TOGETHER TOTAL SIX MONTHS NO BENEFIT SHALL BE GRANTED UNDER THE SAID LEGISLATION; IN THAT CASE, THE ABOVEMENTIONED PERIODS SHALL BE TAKEN INTO ACCOUNT FOR THE ACQUISITION, MAINTENANCE AND RECOVERY OF THE RIGHT TO BENEFITS FROM OTHER MEMBER STATES, BUT NOT FOR DETERMINING THE PROPORTIONATE AMOUNT DUE IN ACCORDANCE WITH ARTICLE 28 ( 1 ) ( B ) OF THE REGULATION ( NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ) ... ".
3 REGULATION NO 4 PROVIDES IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .
4 ACCORDING TO THE TERMS OF THE HEADING OF CHAPTER 2 IN WHICH IT APPEARS, ARTICLE 28 ( 2 ) OF REGULATION NO 4 IS CONCERNED WITH THE IMPLEMENTATION OF THE PROVISIONS OF ARTICLES 26 TO 28 OF REGULATION NO 3 WHICH WERE ISSUED IN APPLICATION OF ARTICLE 51 OF THE TREATY .
5 IT IS THEREFORE IN THIS CONTEXT AND TAKING ACCOUNT OF THE PRINCIPLES CONTAINED IN THESE PROVISIONS THAT ARTICLE 28 ( 2 ) MUST BE INTERPRETED .
6 APART FROM THE INSTANCE GIVEN IN ARTICLE 25, ARTICLE 26 OF REGULATION NO 3 EXTENDS TO INCAPACITATED MIGRANT WORKERS THE BENEFIT OF AGGREGATION OF INSURANCE PERIODS AND ASSIMILATED PERIODS PROVIDED BY ARTICLE 51 OF THE TREATY AND BY ARTICLES 27 AND 28 OF THE SAID REGULATION FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF PENSIONS FOR OLD-AGE AND DEATH .
7 ARTICLE 28 ( 2 ) OF REGULATION NO 4 LAYS DOWN THE DETAILED RULES OF APPLICATION OF ARTICLES 26 TO 28 OF REGULATION NO 3 IN THE PARTICULAR CASE IN WHICH THE INSURANCE PERIODS AND ASSIMILATED PERIODS, COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE, DO NOT TOGETHER TOTAL SIX MONTHS .
8 THE AIM OF THE PROVISION IS, BY PREVENTING THE INSTITUTIONS PAYING THE BENEFITS FROM HAVING TO INCUR EXPENSES OF CALCULATION AND TRANSMISSION GREATER THAN THE BENEFITS THEMSELVES, TO SIMPLIFY THE APPLICATION OF THE AGGREGATION MECHANISM IN PARTICULAR IN VIEW OF THE VERY SMALL PROPORTIONATE AMOUNTS PAYABLE IN RESPECT OF THOSE PERIODS .
9 NEVERTHELESS IN ORDER NOT TO DEPRIVE MIGRANT WORKERS OF THE ADVANTAGES OF AGGREGATION, ARTICLE 28 ( 2 ) OF REGULATION NO 4 PROVIDES THAT THESE SAME PERIODS SHALL BE TAKEN INTO ACCOUNT FOR THE ACQUISITION, MAINTENANCE AND RECOVERY OF THE RIGHT TO BENEFITS FROM OTHER MEMBER STATES .
10 ALTHOUGH, MOREOVER, THE OBJECT OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 IS TO SIMPLIFY ADMINISTRATION, THIS CAN ONLY BE DONE, NO MATTER WHAT THE CIRCUMSTANCES, WITHIN THE CONTEXT AND LIMITS OF THE OBLIGATION TO UNDERTAKE AN AGGREGATION IMPOSED BY ARTICLE 51 OF THE TREATY AND IT CANNOT BE ALLOWED TO AFFECT ADVERSELY THE RIGHTS STEMMING FROM THAT ARTICLE IN FAVOUR OF INDIVIDUALS .
11 THEREFORE IN CASES IN WHICH A PERIOD OF LESS THAN SIX MONTHS CANNOT BE TAKEN INTO ACCOUNT BY ANOTHER MEMBER STATE FOR LACK OF SUFFICIENT INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF THAT STATE, AN ESSENTIAL PREREQUISITE FOR THE APPLICATION OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 IS LACKING .
12 IN THIS CASE THE CONDITIONS RELATING TO THE ACQUISITION BY THE MIGRANT WORKER OF THE RIGHT TO OLD-AGE, DEATH AND INVALIDITY BENEFITS ARE SOLELY GOVERNED BY THE GENERAL PROVISIONS OF ARTICLES 26 TO 28 OF REGULATION NO 3 .
13 THEREFORE THE PROVISIONS OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 ARE NOT APPLICABLE TO A WORKER SUBJECT TO TYPE A LEGISLATION IN ONE MEMBER STATE WHO ACQUIRES IN THAT STATE ( IN THE PRESENT CASE, BELGIUM ) THE RIGHT TO SICKNESS AND INVALIDITY INSURANCE BENEFITS BY RELYING ON INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 16 AND 17 OF REGULATION NO 3, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED BEFORE COMPLETING SIX MONTHS' WORK IN THE STATE IN WHICH HE IS SUBJECT TO TYPE A LEGISLATION, WHEN NO BENEFITS CAN BE GRANTED BY THE OTHER MEMBER STATE ( IN THIS CASE THE FEDERAL REPUBLIC OF GERMANY ) FOR LACK OF SUFFICIENT INSURANCE PERIODS .

14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
15 AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE COMMISSION DE RECLAMATION DE LIEGE, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COMMISSION DE RECLAMATION DE LIEGE BY AN ORDER OF THAT COURT OF 3 JUNE 1970, HEREBY RULES :
THE PROVISIONS OF ARTICLE 28 ( 2 ) OF REGULATION NO 4 ARE NOT APPLICABLE TO A WORKER SUBJECT TO TYPE A LEGISLATION IN ONE MEMBER STATE WHO ACQUIRES IN THAT STATE ( IN THE PRESENT CASE, BELGIUM ) THE RIGHT TO SICKNESS AND INVALIDITY INSURANCE BENEFITS BY RELYING ON INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 16 AND 17 OF REGULATION NO 3, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED BEFORE COMPLETING SIX MONTHS' WORK IN THE STATE IN WHICH HE IS SUBJECT TO TYPE A LEGISLATION, WHEN NO BENEFITS CAN BE GRANTED BY THE OTHER MEMBER STATE ( IN THIS CASE THE FEDERAL REPUBLIC OF GERMANY ) FOR LACK OF SUFFICIENT INSURANCE PERIODS .