61977J0126

SOCIAL SECURITY FOR MIGRANT WORKERS - UNEMPLOYMENT - ACQUISITION OF RIGHT TO BENEFITS - AGGREGATION OF PERIODS OF INSURANCE OR EMPLOYMENT - POSSIBILITY OF COUNTING PERIOD OF EMPLOYMENT AS PERIOD OF INSURANCE - CONDITIONS

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 1 ( R ) AND ART . 67 ( 1 ))

IT IS CLEAR FROM ARTICLE 1 ( R ) OF REGULATION NO 1408/71 THAT , IN ORDER TO ASCERTAIN WHETHER A PERIOD OF EMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF INSURANCE FOR THE PURPOSES OF THE APPLICATION OF THE RULE CONCERNING AGGREGATION SET OUT IN ARTICLE 67 ( 1 ), REFERENCE MUST BE MADE TO THE LEGISLATION UNDER WHICH SUCH PERIOD WAS COMPLETED . THUS A PERIOD OF EMPLOYMENT COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE OTHER THAN THAT IN WHICH THE COMPETENT INSTITUTION IS ESTABLISHED , AND DEFINED OR RECOGNIZED AS AN INSURANCE PERIOD UNDER THAT LEGISLATION , IS NOT SUBJECT TO THE CONDITION LAID DOWN IN ARTICLE 67 ( 1 ) IN FINE OF REGULATION NO 1408/71 .

IN CASE 126/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BELGIAN COUR DE CASSATION FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MARIA FRANGIAMORE

AND

THE OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE )

ON THE INTERPRETATION OF ARTICLE 67 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 )

1BY A JUDGMENT OF 19 SEPTEMBER 1977 , WHICH WAS RECEIVED AT THE COURT ON 24 OCTOBER 1977 , THE BELGIAN COUR DE CASSATION SUBMITTED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 67 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2ARTICLE 67 OF REGULATION NO 1408/71 , WHICH CONCERNS THE POSITION WITH REGARD TO AGGREGATION OF PERIODS FOR THE ACQUISITION OF THE RIGHT TO UNEMPLOYMENT BENEFITS , STATES AT PARAGRAPH ( 1 ):

' ' THE COMPETENT INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS SUBJECT TO THE COMPLETION OF INSURANCE PERIODS SHALL TAKE INTO ACCOUNT , TO THE EXTENT NECESSARY , PERIODS OF INSURANCE OR EMPLOYMENT COMPLETED UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE , AS THOUGH THEY WERE PERIODS COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS , PROVIDED , HOWEVER , THAT THE PERIODS OF EMPLOYMENT WOULD HAVE BEEN COUNTED AS INSURANCE PERIODS HAD THEY BEEN COMPLETED UNDER THAT LEGISLATION . ' '

3PURSUANT TO ARTICLE 1 ( R ) OF THE REGULATION THE WORDS ' ' INSURANCE PERIODS ' ' MEAN ' ' CONTRIBUTION PERIODS OR PERIODS OF EMPLOYMENT AS DEFINED OR RECOGNIZED AS INSURANCE PERIODS BY THE LEGISLATION UNDER WHICH THEY WERE COMPLETED . . . ' ' .

4THE QUESTION SUBMITTED BY THE BELGIAN COUR DE CASSATION ASKS WHETHER THE CONDITION LAID DOWN IN ARTICLE 67 ( 1 ) IN FINE APPLIES EVEN IF THE RELEVANT PERIOD OF EMPLOYMENT IS COUNTED AS AN INSURANCE PERIOD UNDER THE LEGISLATION OF THE MEMBER STATE IN WHICH IT WAS COMPLETED .

5THE EXTENT OF THE RIGHT CONFERRED BY ARTICLE 67 ( 1 ) ON A MIGRANT WORKER TO REQUIRE THE COMPETENT INSTITUTION OF A MEMBER STATE TO AGGREGATE PERIODS OF INSURANCE OR EMPLOYMENT WHICH HE HAS COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE VARIES IN ACCORDANCE WITH THE NATURE OF THE PERIODS IN QUESTION .

6IN FACT THAT PROVISION PERMITS THE AGGREGATION , ON THE ONE HAND , OF INSURANCE PERIODS WITHIN THE MEANING OF ARTICLE 1 ( R ) AND , ON THE OTHER HAND , OF ORDINARY PERIODS OF EMPLOYMENT DEFINED OR RECOGNIZED AS SUCH IN A MEMBER STATE OTHER THAN THAT IN WHICH THE COMPETENT INSTITUTION IS ESTABLISHED .

7IN THE LATTER CASE THE WORDING OF ARTICLE 67 ( 1 ) INDICATES THAT PERIODS OF EMPLOYMENT SHALL BE AGGREGATED ONLY IF THEY WOULD HAVE BEEN COUNTED AS INSURANCE PERIODS HAD THEY BEEN COMPLETED UNDER THE LEGISLATION OF THE COMPETENT STATE .

8ON THE OTHER HAND , THAT CONDITION DOES NOT APPLY TO THE AGGREGATION OF INSURANCE PERIODS WITHIN THE MEANING OF ARTICLE 1 ( R ) OF THE REGULATION .

9FURTHERMORE , IT IS CLEAR FROM ARTICLE 1 ( R ) OF THE REGULATION THAT , IN ORDER TO ASCERTAIN WHETHER A PERIOD OF EMPLOYMENT MAY BE ASSIMILATED TO A PERIOD OF INSURANCE FOR THE PURPOSES OF THE APPLICATION OF THE RULE CONCERNING AGGREGATION SET OUT IN ARTICLE 67 ( 1 ), REFERENCE MUST BE MADE TO THE LEGISLATION UNDER WHICH SUCH PERIOD WAS COMPLETED .

10IT IS THUS APPARENT FROM THE FOREGOING CONSIDERATIONS THAT A PERIOD OF EMPLOYMENT COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE OTHER THAN THAT IN WHICH THE COMPETENT INSTITUTION IS ESTABLISHED , AND DEFINED OR RECOGNIZED AS AN INSURANCE PERIOD UNDER THAT LEGISLATION , IS NOT SUBJECT TO THE CONDITION LAID DOWN IN ARTICLE 67 ( 1 ) IN FINE OF REGULATION NO 1408/71 .

COSTS

11THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

12AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BELGIAN COUR DE CASSATION BY JUDGMENT OF 19 SEPTEMBER 1977 , HEREBY RULES :

A PERIOD OF EMPLOYMENT COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE OTHER THAN THAT IN WHICH THE COMPETENT INSTITUTION IS ESTABLISHED , AND DEFINED OR RECOGNIZED AS AN INSURANCE PERIOD UNDER THAT LEGISLATION , IS NOT SUBJECT TO THE CONDITION LAID DOWN IN ARTICLE 67 ( 1 ) IN FINE OF REGULATION NO 1408/71 .