61976J0093

SOCIAL SECURITY FOR MIGRANT WORKERS - VOLUNTARY OR OPTIONAL CONTINUED INSURANCE WITHIN THE MEANING OF ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 - CONCEPT

THE EXPRESSION ' VOLUNTARY OR OPTIONAL CONTINUED INSURANCE ' APPEARING IN AR- TICLE 9 ( 2 ) OF REGULATION NO 1408/71 COVERS ASSIMILATION TO PERIODS OF EMPLOYMENT FOR THE PURPOSES OF INSURANCE FOR PERIODS OF STUDY WHETHER THERE IS ANY CONTINUANCE OF EXISTING INSURANCE OR NOT .

IN CASE 93/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL ( LABOUR COURT ) OF CHARLEROI , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FERNAND LIEGEOIS , MARCINELLE

AND

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS ), BRUSSELS

ON THE INTERPRETATION OF ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 ,

1 BY JUDGMENT OF 9 SEPTEMBER 1976 , RECEIVED AT THE COURT REGISTRY ON 28 SEPTEMBER , THE TRIBUNAL DU TRAVAIL , CHARLEROI , UNDER ARTICLE 177 OF THE EEC TREATY , ASKED TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THESE QUESTIONS WERE RAISED IN PROCEEDINGS CONCERNING THE RIGHT OF A BELGIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , TO THE ASSIMILATION , ALLOWED UNDER CERTAIN CONDITIONS BY BELGIAN LAW , OF PERIODS OF STUDY TO PERIODS OF EMPLOYMENT .

3 THE PERSON CONCERNED STUDIED IN BELGIUM FROM 1950 TO 1954 AND IN FRANCE FROM 1954 TO 1956 , THEN WORKED IN THE LATTER COUNTRY FROM 1958 TO 1960 AFTER DOING HIS MILITARY SERVICE IN BELGIUM .

4 AFTER PURSUING HIS STUDIES IN THE UNITED STATES FROM 1960 TO 1963 HE WORKED IN FRANCE AGAIN IN 1964 AND 1965 , THEN IN THE UNITED STATES UNTIL 1971 , AND FROM THEN ON IN BELGIUM .

5 HIS REQUEST TO BUY IN HIS PERIODS OF STUDY WAS REJECTED BY THE COMPETENT BELGIAN AUTHORITY , THE DEFENDANT IN THE MAIN ACTION , ON THE GROUND THAT IN HIS CASE ONE OF THE CONDITIONS REQUIRED BY BELGIAN LEGISLATION UNDER WHICH AN OCCUPATION MUST BE PURSUED IMMEDIATELY AFTER STUDIES , INVOLVING THE APPLICATION OF THE BELGIAN LEGISLATION ON RETIREMENT AND SURVIVAL PENSIONS FOR EMPLOYED PERSONS , WAS NOT FULFILLED .

6 THE FIRST QUESTION ASKS WHETHER THE CONDITION LAID DOWN IN ARTICLE 7 ( 1 ) ( I ) OF THE BELGIAN ROYAL DECREE OF 21 DECEMBER 1967 , CONSISTING IN THE OBLIGATION ON THE PART OF AN EMPLOYED PERSON WHO WISHES TO REGULARIZE HIS PERIODS OF STUDY TO PROVE THAT HE EXERCISED , IMMEDIATELY AFTER SUCH PERIODS , A PROFESSIONAL OR TRADE ACTIVITY IN BELGIUM , IS AFFECTED BY ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 AS BEING A CLAUSE UNDER WHICH ADMISSION TO VOLUNTARY OR OPTIONAL CONTINUED INSURANCE IS MADE CONDITIONAL UPON THE OBLIGATION TO COMPLETE AN INSURANCE PERIOD , OR BY ANY OTHER PROVISION OF A COMMUNITY REGULATION .

7 THE SECOND QUESTION ASKS WHETHER , IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE , THE EMPLOYED PERSON OF BELGIAN NATIONALITY CAN CLAIM EITHER EQUALITY OF TREATMENT UNDER ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 OR TO HAVE TAKEN INTO CONSIDERATION THE PERIOD OF INSURANCE COMPLETED UNDER BELGIAN LEGISLATION WITHIN THE MEANING OF ARTICLE 45 ( 1 ) OF THE SAME REGULATION , THAT IS , FOR THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS OF OLD-AGE AND DEATH INSURANCE ( PENSIONS ), OR UNDER ANY OTHER PROVISION OF COMMUNITY LAW .

8 ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 AS AMENDED BY REGULATION NO 2864/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( JO L 306 , P . 1 ), PROVIDES THAT ' WHERE , UNDER THE LEGISLATION OF A MEMBER STATE , ADMISSION TO VOLUNTARY OR OPTIONAL CONTINUED INSURANCE IS CONDITIONAL UPON COMPLETION OF INSURANCE PERIODS , THE INSURANCE PERIODS OR RESIDENCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE SHALL BE TAKEN INTO ACCOUNT , TO THE EXTENT REQUIRED , AS IF THEY WERE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF THE FIRST STATE ' .

9 THE PLAINTIFF IN THE MAIN ACTION STATES THAT THE REGULARIZATION OF PERIODS OF STUDY FOR THE PURPOSE OF DETERMINING THE PENSION RIGHTS OF THE EMPLOYED PERSON IS A MATTER OF ADMISSION TO CONTINUED VOLUNTARY OR OPTIONAL INSURANCE INVOLVING THE APPLICATION OF ARTICLE 9 ( 2 ).

10 THE DEFENDANT IN THE MAIN ACTION , ON THE OTHER HAND , CONTESTED THIS STATEMENT ON THE GROUND THAT , FIRST , THE ASSIMILATION OF PERIODS OF STUDY TO PERIODS OF EMPLOYMENT DOES NOT CONSTITUTE ADMISSION TO VOLUNTARY INSURANCE AND , SECONDLY , THAT ARTICLE 9 ( 2 ) APPLIES ONLY TO PERIODS OF VOLUNTARY OR OPTIONAL INSURANCE COMPLETED AFTER A PERIOD OF COMPULSORY INSURANCE .

11 IN SUPPORT OF ITS FIRST OBJECTION THE DEFENDANT IN THE MAIN ACTION POINTS OUT THAT , APART FROM THE ASSIMILATION OF PERIODS OF STUDY TO PERIODS OF EMPLOYMENT , THERE IS UNDER BELGIAN LEGISLATION WHAT IS CALLED ' VOLUNTARY INSURANCE ' , WHERE THE METHOD USED FOR CALCULATING CONTRIBUTIONS DIFFERS FROM THAT USED FOR THE ADMISSION OF PERIODS OF STUDY AND WHERE THE RULES OF APPLICATION ALSO DIFFER .

12 A COMPARISON OF THE WORDING USED IN THE SIX OFFICIAL LANGUAGES HAS SHOWN UP VARIATIONS IN THE VERSIONS IN THE DIFFERENT LANGUAGES OF ARTICLE 9 BOTH AS TO THE DISTINCTION BETWEEN VOLUNTARY AND OPTIONAL INSURANCE AND AS TO THE CONCEPT OF CONTINUED INSURANCE .

13 THE SEVERAL VERSIONS USED THE FOLLOWING EXPRESSIONS :

- FREIWILLIGE VERSICHERUNG ODER FREIWILLIGE WEITERVERSICHERUNG

- VOLUNTARY OR OPTIONAL CONTINUED INSURANCE

- FRIVILLIG FORSIKRING ELLER FRIVILLIG FORTSAT FORSIKRING

- ASSURANCE VOLONTAIRE OU FACULTATIVE CONTINUEE

- ASSICURAZIONE VOLONTARIA O FACOLTATIVA CONTINUATA

- VRIJWILLIGE OF VRIJWILLIG VOORTGEZETTE VERZEKERING

14 THE DIFFERENT EXPRESSIONS USED ANYHOW SHOW AN INTENTION TO COVER EVERY TYPE OF INSURANCE INCORPORATING A VOLUNTARY ELEMENT AND IT MATTERS LITTLE WHETHER THERE IS ANY CONTINUANCE OF EXISTING INSURANCE OR NOT .

15 THE ASSIMILATION OF PERIODS OF STUDY AND PERIODS OF EMPLOYMENT IS DEVOID OF PURPOSE UNLESS IT GIVES THOSE CONCERNED THE BENEFIT OF INSURANCE FOR THE PERIODS IN QUESTION SUBJECT TO THEIR PAYING THE CONTRIBUTIONS PRESCRIBED BY THE NATIONAL LEGISLATION .

16 IT FOLLOWS THAT FOR THE PURPOSES OF ARTICLE 9 ( 2 ) THIS ASSIMILATION MUST BE CONSIDERED AS ADMISSION TO VOLUNTARY ASSURANCE .

17 THE ANSWER TO THE FIRST QUESTION ASKED BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , MUST THEREFORE BE THAT THE EXPRESSION ' VOLUNTARY OR OPTIONAL CONTINUED INSURANCE ' APPEARING IN ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 COVERS ASSIMILATION TO PERIODS OF EMPLOYMENT FOR THE PURPOSES OF INSURANCE FOR PERIODS OF STUDY WHETHER THERE IS ANY CONTINUANCE OF EXISTING INSURANCE OR NOT .

18 THE SECOND QUESTION THEREFORE NO LONGER CALLS FOR AN ANSWER .

COSTS

19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

20 AS THESE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE TRIBUNAL DU TRAVAIL , CHARLEROI , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY JUDGMENT OF 9 SEPTEMBER 1976 HEREBY RULES :

THE EXPRESSION ' VOLUNTARY OR OPTIONAL CONTINUED INSURANCE ' APPEARING IN ARTICLE 9 ( 2 ) OF REGULATION NO 1408/71 COVERS ASSIMILATION TO PERIODS OF EMPLOYMENT FOR THE PURPOSES OF INSURANCE FOR PERIODS OF STUDY WHETHER THERE IS ANY CONTINUANCE OF EXISTING INSURANCE OR NOT .