C-76/82

JUDGMENT OF 9.12.1982 — CASE 76/82 MALFITANO v INAMI

CELEX: 61982CJ0076
Datum: 1982-12-09
Källa: eur-lex.europa.eu

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

THE COURT (Third Chamber) composed of: U. Everling, President of Chamber, Lord Mackenzie Stuart and Y. Galmot, Judges, Advocate General: P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

Salvatore Malfitano, the plaintiff in the main action, worked in Belgium in 1955 and 1956. The insurance periods relating to that employment amount to 233 days in all, at the rate of six working days per week, that is to say, a period more than six months but less than one year.

After 1956 Mr Malfitano was employed in various posu in the Federal Republic of Germany and then in Italy where he finally gave up work altogether on 31 December 1974.

The plaintiff in the main action made an application on 24 July 1971 seeking the grant of an invalidity pension in accordance with the Belgian scheme of invalidity insurance. On 2 May 1977, relying on Article 48 (1) of Regulation No 1408/71, the Institut National d'Assurance Maladie-Invalidité [National Sickness and Invalidity Insurance Institution] (hereinafter referred to as “the Belgian Institution”) refused to grant such a pension since 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.

On 12 June 1979 Mr Malfitano brought an action before the Tribunal du Travail, Charleroi, against that refusal to grant him the pension requested.

By an interlocutory judgment of 14 September 1981 the Tribunal du Travail declared that in its opinion Article 48 (1) of Regulation No 1408/71 set two cumulative conditions for the acquisition of a right to benefits: a period of insurance or residence of one year and the completion of the qualifying period laid down by the applicable legislation. It ordered the reopening of the oral procedure to enable the Belgian Institution to present argument on that point.

In a second judgment given on 8 February 1982 the Tribunal du Travail, Charleroi, observed that:

“1. Under Belgian law relating to compulsory insurance, residence does not constitute a sufficient condition for entitlement to benefits or qualification for that purpose; a qualifying period is required as defined by Article 204 of the Arrêté Royal [Royal Decree] of 4 November 1963, issued in implementation of Article 66 (1) of the basic Law of 9 August 1963. 2. The question arises whether, in the event of a failure to fulfil the second condition contained in Article 48 (1) ..., the institution of the State of temporary insurance is obliged to grant pro rata benefits in respect of that period of insurance.”

It was against that background that the Tribunal du Travail considered it necessary to refer to the Court of Justice the following preliminary 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?”

The order for reference was lodged at the Court Registry on 23 February 1982.

In pursuance of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by D. Rossini, a tradeunion representative of the Confédération des Syndicats Chrétiens [Confederation of Christian Trade Unions] and director of the welfare organization Patronato ACLI, on behalf of Mr Malfitano, the plaintiff in the main action, by Lucien Mayence, of the Charleroi Bar, on behalf of the Institut National d'Assurance Maladie-Invalidité, and by Jean Amphoux, Legal Adviser, acting as Agent, assisted by Georges Vandersanden of the Brussels Bar, on behalf of the Commission of the European Communities.

Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the case to the Third Chamber.

II — Summary of the observations submitted to the Court

(A) —. Mr Malfitano states that reference to the length of periods of residence is not justified under Belgian law. Belgian benefits, be they for invalidity or old age, are granted in accordance with insurance periods actually completed or periods treated as such and not in accordance with periods of residence. Article 48 (1) applies only when the two conditions referred to therein are satisfied, namely where (a) the total length of the insurance periods completed under the legislation of a Member State amounts to less than one year and (b) no right to benefits is acquired by virtue only of those periods under the provisions of the legislation of that State. Belgian law provides that the right to benefits from the general sickness and invalidity insurance scheme is acquired after completion of a qualifying period of 120 actual working days or days treated as such over a period of six months. Since Mr Malfitano had completed the minimum length of insurance provided for by Belgian law (six months) needed for the acquisition of the right to benefits' from the general sickness and invalidity insurance scheme, Article 48 of Regulation No 1408/71 cannot have the effect of depriving him of the benefit of a proportional invalidity pension from the Belgian Institution. The applicant proposes that the following reply should be given to the preliminary question submitted to the Court by the Tribunal du Travail, Charleroi:

“Article 48 (1) of Regulation Nò 1408/71 is not applicable where the migrant worker has completed on the territory of one Member Sute the minimum period of insurance laid down by the legislation of that State for the acquisition of the right to a benefit.”

(B) —. The Belgian Institution recalls that the reference to periods of residence stems from an amendment-to Regulation. No 1408/71 made following the accession to the Community of new Member States including Denmark and, to a lesser extent, the United Kingdom, where the right to certain benefits is acquired by any resident on the territory of that State irrespective of any employment or payment of contributions to the insurance scheme. On the other hand in Belgium residence has never constituted a sufficient condition for the grant of benefits. It therefore appears beyond dispute that the expression “periods of residence” cannot apply to the examination of rights to benefits from the Belgian sickness and invalidity insurance scheme. It is clear from the wording of Article 48 (1) that the second condition is limited to a right acquired by virtue only of insurance periods completed in Belgium and does not refer to rights acquired by way of aggregation. As regards the question whether the qualifying period completed at the time by the worker in Belgium does not preclude the application of Article 48 (1), it should be remembered that under Belgian law it is at the time when the risk insured against materializes that an examination has to be carried out as to whether the conditions determining the acquisition of the right are satisfied. In particular, in the six months preceding the materialization of the risk, the worker must have completed an insurance period during which he can prove at least 120 working days or days treated as such and he must not have lost the sums of being compulsorily insured within the meaning of Belgian legislation for more than one month at the time of the beginning of the incapacity. The Belgian Institution notes the insurance periods completed by Mr Malfitano in Belgium and concludes that whilst Mr Malfitano did indeed complete the qualifying period required at the beginning of the period when he was subject to Belgian legislation, even before leaving Belgium he was unable to preserve his acquired rights. The Belgian Institution proposes that the following reply should be given to the preliminary question:

“With the exception of the situation mentioned in Anicie 38 (3) of Regulation No 1408/71, the competent institution is obliged to grant benefits by virtue of an insurance period — or period of residence if the legislation applied by that institution so provides — mentioned in Article 48 (1) of that regulation, namely a period of less than one year, only where a right to those benefits exists by virtue of national law alone.”

(C) —. The Commission recalls the clear and precise interpretation of Article 48 (1) which was given by the Court in its judgment of 20 November 1975 in Case 49/75 Camilla Bore lia v Landesversichemngsanstalt Schwaben [1975] ECR 1461. At paragraph 5 of that judgment the Court declared that: “Under the actual terms of Article 48 (1) the latter only applies where two conditions are fulfilled, that is, first, that ‘the total length of insurance periods ... does not amount to one year’ and, secondly, under the legislation of that Member State ‘no right to benefits is acquired by virtue only of those periods’. It follows that this article cannot be applied where the right to benefits of a migrant worker ... already arises solely from the provisions of the legislation of the Member State in question.” It is undisputed, and the court making the reference emphasized that point in its observations and in the preliminary question, that under Belgian law residence does not constitute a condition for the acquisition of a right to benefits or for qualification for that purpose. In the context of Article 48(1) the concept of periods of residence refers only to those periods the completion of which is a condition for the grant of benefits or enables qualification for that purpose to be acquired. In so far as a period of residence cannot perform that function under Belgian law, there is therefore no need to take account of it for the purpose of applying Article 48 (1). Moreover the wording of Article 48 (1) is perfectly clear. The Commission suggests that the following reply should be given to the question referred to the Court by the Tribunal du Travail:

“For the purpose of applying Article 48 (1) of Regulation No 1408/71, account is to be taken of the length of residence in a Member Sute only where the legislation of that State makes entitlement to benefits subject to the completion of periods of residence. Where, under the legislation of a Member State which makes the right to benefits subject to the completion of insurance periods, such a right is acquired on the basis solely of the insurance periods completed under that legislation, the institution of that Member Sute is bound to grant benefits, even if the length of those periods is less than one year.”

III — Oral procedure

At the sitting on 14 October 1982 oral argument was presented by the following: D. Rossini, trade union represenutive of the Confédération des Syndicats Chrétiens and Director of the welfare organization Patronato ACLI, Brussels, for the plaintiff in the main action; Lucien Mayence of the Charleroi Bar for the Belgian Institution; and J. Amphoux, acting as Agent and assisted by G. Vandersanden of the Brussels Bar, for the Commission.

The Advocate General delivered his opinion at the sitting on 28 October 1982.

Decision

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-Invalidité [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 abovementioned 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 abovementioned 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 reopening of the oral procedure to enable the Belgian Institution to present argument on that point.

4. Subsequendy, the Tribunal du Travail decided to stay the proceedings and refer to the Court for a preliminary ruling the following question :

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 pan 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. Anicie 48 ) provides that the competent institution of a Member State is not bou/ .. .o award invalidity benefits to a migrant worker when two conditions ire satisfied, the conditions being hat the total length of the periods oí 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 per >f insurance completed by Mr Malfitano under Belgian legislation is le η one year. Accordingly, it is for the Tribunal du Travail to a- in whether Mr Malfitano is entitled to benefits by virtue of the Belgian ¡. .slation: 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 wa?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 Amele 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 Sute 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.