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

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - ACQUISITION OF THE RIGHT TO BENEFITS - CONDITIONS - TAKING INTO ACCOUNT OF THE PERIOD OF RESIDENCE IN A MEMBER STATE - MEMBER STATES EMPOWERED SO TO ACT
( REGULATION NO 1408/71 OF THE COUNCIL , ART . 48 ( 1 )
2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - ACQUISITION OF THE RIGHT TO BENEFITS - CONDITIONS - COMPLETION OF THE MINIMUM QUALIFYING PERIOD SPECIFIED BY NATIONAL LAW - WHETHER THE RIGHT TO BENEFIT IS DEPENDENT ON THE WORKER ' S BEING INSURED AT THE TIME AT WHICH THE RISK MATERIALIZES - NOT DEPENDENT THEREON
( REGULATION NO 1408/71 OF THE COUNCIL , ART . 48 ( 1 ))

1 . FOR THE PURPOSES OF ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 , THE DURATION OF RESIDENCE IN A MEMBER STATE IS TO BE TAKEN INTO ACCOUNT ONLY IF THE LEGISLATION OF THAT MEMBER STATE MAKES THE COMPLETION OF PERIODS OF RESIDENCE A CONDITION FOR ENTITLEMENT TO INVALIDITY BENEFIT .


2 . ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT EVEN IF THE WORKER HAS NOT COMPLETED A PERIOD OF INSURANCE OF ONE YEAR IN A MEMBER STATE , THE COMPETENT INSTITUTION OF THAT MEMBER STATE IS BOUND TO AWARD HIM INVALIDITY BENEFITS IF THE WORKER HAS COMPLETED THE MINIMUM QUALIFYING PERIOD SPECIFIED AS A CONDITION FOR ELIGIBILITY BY NATIONAL LAW . IF THE WORKER HAS COMPLETED THE MINIMUM QUALIFYING PERIOD THE COMPETENT INSTITUTION MAY NOT REFUSE HIM BENEFIT ON THE GROUND THAT A PROVISION IN NATIONAL LAW MAKES THE RIGHT TO BENEFIT DEPENDENT UPON THE WORKER ' S BEING INSURED IN THAT MEMBER STATE AT THE TIME AT WHICH THE RISK MATERIALIZES .

IN CASE 76/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
SALVATORE MALFITANO , RESIDING AT LICATA , ITALY ,
AND
INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE , BRUSSELS ,

ON THE INTERPRETATION OF ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY AN INTERLOCUTORY JUDGMENT OF 8 FEBRUARY 1982 WHICH WAS RECEIVED AT THE COURT ON 23 FEBRUARY 1982 THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO THE INTERPRETATION OF ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 .
2 THE QUESTION AROSE IN THE COURSE OF A DISPUTE BETWEEN AN ITALIAN NATIONAL , NOW LIVING IN ITALY , AND THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE ( NATIONAL SICKNESS AND INVALIDITY INSURANCE INSTITUTION ( HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' )), THE COMPETENT INSTITUTION IN BELGIUM FOR SICKNESS AND INVALIDITY INSURANCE . THE PLAINTIFF IN THE MAIN ACTION , WHO WAS DECLARED UNFIT FOR WORK AND IS IN RECEIPT OF ALLOWANCES UNDER THE ITALIAN SCHEME , CLAIMS AN APPORTIONED INVALIDITY PENSION UNDER THE BELGIAN SCHEME . HIS APPLICATION FOR SUCH A PENSION WAS REFUSED BECAUSE THE TOTAL DURATION OF THE PERIODS DURING WHICH MR MALFITANO WAS AFFILIATED TO THE BELGIAN SICKNESS AND INVALIDITY INSURANCE SCHEME WAS LESS THAN ONE YEAR , THE PERIOD SPECIFIED BY ARTICLE 48 ( 1 ) OF THE ABOVE-MENTIONED REGULATION .

3 MR MALFITANO CHALLENGED THE REFUSAL TO PAY HIM A PENSION BEFORE THE TRIBUNAL DU TRAVAIL , CHARLEROI . BY AN INTERLOCUTORY JUDGMENT THE TRIBUNAL DECLARED THAT THE ABOVE-MENTIONED ARTICLE SET TWO CUMULATIVE CONDITIONS FOR THE ACQUISITION OF A RIGHT TO BENEFITS : ONE YEAR ' S INSURANCE OR RESIDENCE , AND COMPLETION OF THE QUALIFYING PERIOD LAID DOWN BY THE APPLICABLE LEGISLATION . IT WAS IN SOME DOUBT AS TO THE MEANING OF THE CONDITION OF RESIDENCE IMPOSED UNDER THE BELGIAN SYSTEM AND ORDERED THE RE-OPENING OF THE ORAL PROCEDURE TO ENABLE THE BELGIAN INSTITUTION TO PRESENT ARGUMENT ON THAT POINT .

4 SUBSEQUENTLY , THE TRIBUNAL DU TRAVAIL DECIDED TO STAY THE PROCEEDINGS AND REFER TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTION :
' ' IN VIEW OF THE FACT THAT BELGIAN LEGISLATION RELATING TO COMPULSORY INSURANCE AGAINST SICKNESS AND INVALIDITY DOES NOT MAKE RESIDENCE A SUFFICIENT CONDITION FOR THE GRANT OF BENEFITS OR FOR QUALIFICATION FOR THAT PURPOSE , DOES ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 MEAN THAT , WHERE A PERIOD OF INSURANCE OR RESIDENCE IN BELGIUM AMOUNTS TO LESS THAN ONE YEAR BUT ENTITLEMENT TO BENEFITS IS ACQUIRED BY COMPLETION OF THE REQUIRED QUALIFYING PERIOD , THE COMPETENT INSTITUTION IS BOUND TO GRANT BENEFITS IN RESPECT OF THE SAID PERIOD OF INSURANCE OR RESIDENCE?
' '
5 THE QUESTION HAS TWO ASPECTS WHICH FALL TO BE CONSIDERED SEPARATELY . IN THE FIRST PLACE , THE TRIBUNAL DU TRAVAIL ASKS HOW RELEVANT THE CONCEPT OF PERIODS OF RESIDENCE IS TO THE DECISION IT IS CALLED UPON TO DELIVER .

6 IN REPLY TO THAT PART OF THE QUESTION IT MUST BE OBSERVED THAT THE CONCEPT OF ' ' PERIOD OF RESIDENCE ' ' WAS INTRODUCED INTO REGULATION NO 1408/71 ON THE ACCESSION TO THE EUROPEAN COMMUNITIES OF CERTAIN MEMBER STATES IN WHICH THE SICKNESS INSURANCE SCHEME MAKES THE GRANT AND THE AMOUNT OF BENEFIT SUBJECT TO THE COMPLETION OF PERIODS OF RESIDENCE . THE CONCEPT IS APPLICABLE ONLY IN THE CASE OF SCHEMES UNDER WHICH THE COMPLETION OF SUCH PERIODS IS A CONDITION FOR THE GRANT OF BENEFITS OR IS A CONDITION OF ELIGIBILITY TO RECEIVE THEM . IT IS WELL-ESTABLISHED THAT UNDER BELGIAN LAW RESIDENCE IS NEITHER A CONDITION OF ENTITLEMENT TO RECEIVE BENEFITS NOR A CONDITION OF ELIGIBILITY . INASMUCH AS A PERIOD OF RESIDENCE CANNOT HAVE THAT FUNCTION UNDER BELGIAN LEGISLATION IT IS NOT NECESSARY TO HAVE REGARD TO THAT CONDITION IN APPLYING ARTICLE 48 ( 1 ).

7 THE SECOND PART OF THE QUESTION CONCERNS THE INTERPRETATION OF THE PARAGRAPH CITED ABOVE IN THE CASE OF A WORKER WHO , AS IN THIS CASE , HAS NOT COMPLETED ONE YEAR ' S INSURANCE OR RESIDENCE , BUT WHO NEVERTHELESS HAS COMPLETED THE QUALIFYING PERIOD REQUIRED BY NATIONAL LAW FOR ENTITLEMENT TO BENEFITS .

8 ARTICLE 48 ( 1 ) PROVIDES THAT THE COMPETENT INSTITUTION OF A MEMBER STATE IS NOT BOUND TO AWARD INVALIDITY BENEFITS TO A MIGRANT WORKER WHEN TWO CONDITIONS ARE SATISFIED , THE CONDITIONS BEING THAT THE TOTAL LENGTH OF THE PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE DOES NOT AMOUNT TO ONE YEAR , AND THAT UNDER THAT LEGISLATION NO RIGHT TO BENEFIT IS ACQUIRED BY VIRTUE ONLY OF THOSE PERIODS .

9 IT IS COMMON GROUND THAT THE TOTAL DURATION OF THE PERIODS OF INSURANCE COMPLETED BY MR MALFITANO UNDER BELGIAN LEGISLATION IS LESS THAN ONE YEAR . ACCORDINGLY , IT IS FOR THE TRIBUNAL DU TRAVAIL TO ASCERTAIN WHETHER MR MALFITANO IS ENTITLED TO BENEFITS BY VIRTUE OF THE BELGIAN LEGISLATION : IF HE IS , THE COMPETENT INSTITUTION IS BOUND TO AWARD HIM BENEFITS CALCULATED IN ACCORDANCE WITH THE REGULATION .

10 AS TO THAT , THE BELGIAN INSTITUTION HAS SUBMITTED THAT WHETHER OR NOT A WORKER IS ENTITLED TO BENEFITS BY VIRTUE OF THE BELGIAN LEGISLATION IS A QUESTION WHICH MUST BE DETERMINED AT THE TIME AT WHICH THE RISK MATERIALIZED . IN PARTICULAR , IT ARGUES THAT THE WORKER MUST , WITHIN THE SIX MONTHS PRECEDING THE MATERIALIZATION OF THE RISK , HAVE COMPLETED A PERIOD OF INSURANCE WITHIN WHICH HE CAN SHOW THAT HE WORKED , OR IS DEEMED TO HAVE WORKED , AT LEAST 120 DAYS , AND MUST NOT HAVE CEASED TO BE A PERSON COMPULSORILY INSURED WITHIN THE MEANING OF THE BELGIAN LEGISLATION FOR A PERIOD OF MORE THAN ONE MONTH PRIOR TO THE DATE ON WHICH HE BECAME UNFIT FOR WORK . MR MALFITANO , IT SUBMITS , DID SATISFY THOSE CONDITIONS ONCE , BUT CEASED TO SATISFY THEM EVEN PRIOR TO HIS DEPARTURE FROM BELGIUM OWING TO THE FACT THAT THERE WAS A PERIOD DURING WHICH HE WAS NOT INSURED .

11 IT IS NOT FOR THE COURT OF JUSTICE TO INTERPRET NATIONAL LEGISLATION OR TO APPLY IT TO AN INDIVIDUAL CASE . IN ORDER TO GIVE A USEFUL REPLY TO THE QUESTION PUT BY THE NATIONAL COURT , WHICH MUST DETERMINE WHETHER OR NOT MR MALFITANO IS ENTITLED TO INVALIDITY BENEFITS WITHIN THE MEANING OF THE REGULATION , THE COURT MUST MAKE IT CLEAR THAT THE ARGUMENT PUT FORWARD BY THE BELGIAN INSTITUTION IS CONTRARY TO THE SPIRIT OF REGULATION NO 1408/71 , WHICH SEEKS TO IMPLEMENT ARTICLE 51 OF THE EEC TREATY BY INTRODUCING A SYSTEM GUARANTEEING THE MIGRANT WORKER THAT ANY PERIOD OF INSURANCE COMPLETED UNDER THE LEGISLATION OF MORE THAN ONE COUNTRY WILL BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF ELIGIBILITY , AND THE MAINTENANCE OF ELIGIBILITY , FOR BENEFITS AS WELL AS FOR THE CALCULATION FOR SUCH BENEFITS .

12 THE SYSTEM OF APPORTIONMENT UNDER REGULATION NO 1408/71 IS DESIGNED TO ENSURE THAT WHEN MIGRANT WORKERS EXERCISE THE RIGHT OF FREE MOVEMENT WITHIN THE COMMUNITY THEY DO NOT FORFEIT ENTITLEMENT AS A RESULT OF THE DISPARITIES BETWEEN THE DIFFERENT SOCIAL SECURITY SCHEMES OF THE MEMBER STATES .

13 IF THE MIGRANT WORKER HAS COMPLETED THE MINIMUM PERIOD OF INSURANCE REQUIRED FOR ELIGIBILITY , IT WOULD BE CONTRARY TO THE AIMS OF ARTICLE 51 OF THE TREATY FOR A NATIONAL ADMINISTRATION TO REFUSE BENEFITS ON THE GROUND THAT THE WORKER WAS NO LONGER INSURED UNDER THE NATIONAL LEGISLATION OF THAT MEMBER STATE WHEN HE EXERCISED HIS RIGHT OF FREE MOVEMENT WITHIN THE COMMON MARKET .

14 ACCORDINGLY , THE CONCEPT OF A RIGHT TO BENEFIT UNDER ARTICLE 48 ( 1 ) MUST BE UNDERSTOOD AS INCLUDING THE RIGHTS OF A WORKER UNDER AN INSURANCE SCHEME UNDER WHICH THE OBLIGATIONS OF THE INSURER DO NOT ARISE UNTIL THE RISK MATERIALIZES . ONCE SUCH A RIGHT HAS BEEN ACQUIRED UNDER THE CONDITIONS LAID DOWN BY THE NATIONAL LAW , THE WORKER MAY , PURSUANT TO REGULATION NO 1408/71 , CONTINUE TO BENEFIT FROM THE TAKING INTO CONSIDERATION OF PERIODS OF INSURANCE COMPLETED UNDER SUCH A SYSTEM EVEN IF NATIONAL LEGISLATION NO LONGER GRANTS HIM SUCH RIGHTS AT THE TIME AT WHICH THE RISK MATERIALIZES .

15 CONSEQUENTLY , IN ORDER TO ESTABLISH WHETHER A WORKER IS ENTITLED TO BENEFITS UNDER THE BELGIAN LEGISLATION WITHIN THE MEANING OF REGULATION NO 1408/71 , THE TRIBUNAL DU TRAVAIL MUST ASCERTAIN WHETHER HE HAS COMPLETED THE QUALIFYING PERIOD SPECIFIED BY THAT LEGISLATION .

COSTS
16 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY AN INTERLOCUTORY JUDGMENT OF 8 FEBRUARY 1982 , HEREBY RULES :
1 . FOR THE PURPOSES OF ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 , THE DURATION OF RESIDENCE IN A MEMBER STATE IS TO BE TAKEN INTO ACCOUNT ONLY IF THE LEGISLATION OF THAT MEMBER STATE MAKES THE COMPLETION OF PERIODS OF RESIDENCE A CONDITION FOR ENTITLEMENT TO INVALIDITY BENEFIT .

2.ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT EVEN IF THE WORKER HAS NOT COMPLETED A PERIOD OF INSURANCE OF ONE YEAR , THE COMPETENT INSTITUTION OF A MEMBER STATE IS BOUND TO AWARD HIM INVALIDITY BENEFITS IF THE WORKER HAS COMPLETED THE MINIMUM QUALIFYING PERIOD SPECIFIED AS A CONDITION FOR ELIGIBILITY BY NATIONAL LAW .

3.IF THE WORKER HAS COMPLETED THE MINIMUM QUALIFYING PERIOD THE COMPETENT INSTITUTION MAY NOT REFUSE HIM BENEFIT ON THE GROUND THAT A PROVISION IN NATIONAL LAW MAKES THE RIGHT TO BENEFIT DEPENDENT UPON THE WORKER ' S BEING INSURED IN THAT MEMBER STATE AT THE TIME AT WHICH THE RISK MATERIALIZES .