61972J0002

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SOCIAL SECURITY FOR MIGRANT WORKERS - INSURANCE IN RESPECT OF INVALIDITY, OLD-AGE AND DEATH - AGGREGATION OF COMPLETED INSURANCE PERIODS - PERIOD OF UNEMPLOYMENT - ASSIMILATION TO A PERIOD OF EMPLOYMENT - CRITERIA

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 1 ( R ), ARTICLE 27 )

IT IS CLEAR FROM ARTICLE 1 ( R ) OF REGULATION NO 3 THAT IN ORDER TO ASCERTAIN WHETHER AND TO WHAT EXTENT A PERIOD OF UNEMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF EMPLOYMENT FOR THE PURPOSE OF DETERMINING THE ENTITLEMENT OF A MIGRANT WORKER TO AN INVALIDITY, OLD-AGE AND SURVIVOR' S PENSION REFERENCE MUST BE MADE TO THE LEGISLATION OF THE COUNTRY UNDER WHICH SUCH PERIOD WAS COMPLETED .

IN CASE 2/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D'APPEL, PARIS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SALVATORE MURRU, RESIDING AT 8 VIA DELLA REPUBBLICA, GAIRO ( NUORO ), ITALY,

AND

CAISSE REGIONALE D' ASSURANCE MALADIE DE PARIS, 17/19 RUE DE FLANDRE, PARIS,

ON THE INTERPRETATION OF ARTICLES 1 ( R ), 27, 28 AND 33 OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

1 BY JUDGMENT OF 1 DECEMBER 1971 WHICH WAS RECEIVED AT THE COURT ON 10 JANUARY 1972 THE COUR D' APPEL, PARIS, HAS REQUESTED THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, TO INTERPRET REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND TO RULE WHETHER, FOR THE PURPOSE OF ESTABLISHING WHETHER A PERIOD OF UNEMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF EMPLOYMENT IN ORDER TO DETERMINE THE ENTITLEMENT OF A MIGRANT WORKER TO AN INVALIDITY PENSION, REFERENCE MUST BE MADE TO THE LEGISLATION OF THE MEMBER STATE IN WHICH THE PERIOD OF UNEMPLOYMENT OCCURRED OR TO THE LEGISLATION OF THE MEMBER STATE FROM WHOSE AUTHORITIES THE INVALIDITY PENSION IS CLAIMED .

2 THE PROCEEDINGS BEFORE THE COUR D' APPEL CONCERN THE CASE OF A MIGRANT WORKER WHO, AFTER WORKING ALTERNATELY IN FRANCE AND IN ITALY, HAS FILED A CLAIM WITH A FRENCH SOCIAL SECURITY INSTITUTION FOR AN INVALIDITY PENSION .

3 SINCE FRENCH LEGISLATION REQUIRES THAT THE PERSON CONCERNED SHOULD GIVE EVIDENCE OF 480 HOURS OF PAID EMPLOYMENT OR ITS EQUIVALENT DURING THE 12 MONTHS PRECEDING THE FINDING OF INVALIDITY, WHICH IN THIS INSTANCE OCCURRED IN 1965, IT IS NECESSARY TO KNOW WHETHER THE CLAIMANT' S UNEMPLOYMENT DURING THAT PERIOD MAY BE " ASSIMILATED " TO A PERIOD OF EMPLOYMENT .

4 SINCE THE CLAIMANT WAS RESIDENT IN ITALY DURING THE YEAR PRECEDING THE FINDING OF INVALIDITY AND SINCE THE RELEVANT ITALIAN AUTHORITIES HAVE INDICATED THAT A PERIOD OF UNEMPLOYMENT IS NOT RECOGNIZED BY ITALIAN LEGISLATION AS " ASSIMILABLE " TO A PERIOD OF INSURANCE UNLESS IT GIVES ENTITLEMENT TO UNEMPLOYMENT BENEFIT, IT HAS BEEN ALLEGED THAT THE CAISSE SHOULD NEVERTHELESS TAKE INTO ACCOUNT THE FACT THAT THE CLAIMANT WAS REGISTERED AS AN UNEMPLOYED PERSON BECAUSE FRENCH LAW DOES NOT REQUIRE THAT A PERIOD OF UNEMPLOYMENT BE ACCOMPANIED BY RECEIPT OF SUCH BENEFIT IN ORDER THAT IT MAY BE ASSIMILATED TO A PERIOD OF EMPLOYMENT .

5 CONSEQUENTLY, REGULATION NO 3 MUST BE INTERPRETED TO ASCERTAIN WHETHER A PERIOD OF UNEMPLOYMENT, SO AS TO BE ASSIMILATED TO A PERIOD OF EMPLOYMENT, MUST BE JUDGED IN THE LIGHT OF THE LEGISLATION OF THE MEMBER STATE IN WHICH IT WAS COMPLETED OR THAT OF THE MEMBER STATE IN WHICH THE INVALIDITY PENSION IS CLAIMED .

6 PURSUANT TO ARTICLE 26 ( 1 ) OF REGULATION NO 3, THE PROVISIONS OF ARTICLES 27 AND 28 OF THAT REGULATION ARE APPLICABLE BY ANALOGY TO THE CASE OF A MIGRANT WORKER CLAIMING AN INVALIDITY PENSION WHO HAS BEEN SUBJECT TO FRENCH AND ITALIAN LEGISLATION .

7 ARTICLE 27 PROVIDES THAT FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT, WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO MEMBER STATES, THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED IN SO FAR AS THEY DO NOT OVERLAP .

8 SINCE THAT PROVISION DOES NOT DEFINE THE CONCEPT OF " ASSIMILATED PERIODS " IT IS NECESSARY TO REFER TO ARTICLE 1 ( R ) OF THE REGULATION .

9 ARTICLE 1 ( R ) PROVIDES THAT " FOR THE PURPOSES OF THIS REGULATION ... THE TERM " ASSIMILATED PERIODS " MEANS PERIODS TREATED AS INSURANCE PERIODS OR, WHERE APPLICABLE, AS PERIODS OF EMPLOYMENT, AS DEFINED IN THE LEGISLATION UNDER WHICH THEY WERE COMPLETED, IN SO FAR AS THEY ARE REGARDED BY THE SAID LEGISLATION AS BEING EQUIVALENT TO INSURANCE PERIODS OR PERIODS OF EMPLOYMENT ".

10 THIS DOUBLE REFERENCE TO THE LEGISLATION UNDER WHICH THE PERIOD HAS BEEN COMPLETED SETS FORTH VERY CLEARLY THE PRINCIPLE THAT THE SAID REGULATION, IN SO FAR AS IT TAKES " ASSIMILATED PERIODS " INTO ACCOUNT, INTENDS NEITHER TO MODIFY NOR SUPPLEMENT NATIONAL LAW, PROVIDED THAT THE LATTER OBSERVES THE PROVISIONS OF ARTICLES 48 TO 51 OF THE TREATY .

11 IN PARTICULAR, THE PHRASE " IN SO FAR AS THEY ARE REGARDED ... AS BEING EQUIVALENT ... " SHOWS THAT THE REGULATION IS ALSO REFERRING TO THE CONDITIONS UNDER WHICH NATIONAL LAW WILL REGARD A GIVEN PERIOD AS BEING EQUIVALENT TO INSURANCE PERIODS PROPERLY SO CALLED .

12 IT IS CLEAR THEN FROM ARTICLE 1 ( R ) OF REGULATION NO 3 THAT IN ORDER TO ASCERTAIN WHETHER AND TO WHAT EXTENT A PERIOD OF UNEMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF EMPLOYMENT FOR THE PURPOSE OF DETERMINING THE ENTITLEMENT OF A MIGRANT WORKER TO AN INVALIDITY PENSION, REFERENCE MUST BE MADE TO THE LEGISLATION UNDER WHICH SUCH PERIOD WAS COMPLETED .

13 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 THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D' APPEL, PARIS, BY JUDGMENT OF 1 DECEMBER 1971, HEREBY RULES :

IN ORDER TO ASCERTAIN WHETHER AND TO WHAT EXTENT A PERIOD OF UNEMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF EMPLOYMENT FOR THE PURPOSE OF DETERMINING THE ENTITLEMENT OF A MIGRANT WORKER TO AN INVALIDITY PENSION, REFERENCE MUST BE MADE TO THE LEGISLATION UNDER WHICH SUCH PERIOD WAS COMPLETED .