C-2/72
ECLI:EU:C:1972:46
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JUDGMENT OF THE COURT 6 JUNE 1972<apnote>1</apnote>
Salvatore Murru v Caisse Régionale d'Assurance Maladie de Paris (Reference for a preliminary ruling by the Cour d'Appel, Paris)
Case 2/72
Summary
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 ing the entitlement of a migrant worker to No 3 that in order to ascertain whether an invalidity, old-age and survivor's pen and to what extent a period of unemploy sion reference must be made to the legisla ment may be assimilated to a period of tion of the country under which such employment for the purpose of determin 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 Régionale d'Assurance Maladie de Paris, 17/19 rue de Flandre, Paris,
on the interpretation of Atricles 1 (r), 27, 28 and 33 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers,
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner (Rapporteur) and R. Monaco, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following 1 — Language of the case: French.
JUDGMENT OF 6.6.1972 — CASE 2/72
JUDGMENT
Issues of fact and of law
1 —Facts and procedure held that the social security system intro duced by the European Economic Com The facts and procedure may be sum munity for the benefit of migrant workers marized as follows: did not entitle Mr Murru to claim an in validity pension under French social secur The applicant in the main action, Mr ity legislation since Italian law did not con Murru, worked successively in Italy and in sider a period of unemployment for which France from 1938 to 1963: benefit was not payable to be equivalent to a period of employment.
— in Italy, from 1938 to 1946, from 1952 Mr Murru appealed against this decision to 1955 and from 1961 to 1963; to the cour d'appel, Paris, which, finding that the parties in the dispute put forward — in France, from 1947 to 1951 and from different interpretations of Article 1 (r) and 1956 to 1959. of Articles 27, 28 and 33 of Regulation No 3 of the Council, decided by judgment of He seems to have ceased all employment in 1 December 1971 to stay the proceedings
Italy in 1963. However, he appears to have and, in pursuance of Article 177 of the undergone a period of unemployment from EEC Treaty, to refer to the Court of Justice 24 July 1964 to 27 November 1964, during the following question : which time he was not in receipt of benefit ; this period was however recorded as a re In order to ascertain pursuant to Reg sult of his registration at an employment ulation No 3 of the EEC whether a exchange in Italy. period of unemployment may be assim On the basis of the provisions of Regula ilated to a period of employment for the tion No 3 of the Council, Mr Murru, whose purpose of determining the entitlement invalidity had been established on 11 June of a migrant worker to an invalidity 1965, submitted a claim in June 1965 to the pension, must reference be made to the Caisse Régionale d'Assurance Maladie de rules of assimilation prescribed by the Paris (hereinafter referred to as 'the Caisse') legislation under which the period of for an invalidity pension in France. The unemployment occurred or by the legis Caisse refused to grant him the invalidity lation of the country in which the in pension on the ground that he did not validity pension is claimed? satisfy the employment requirements under
French law at the time of the materializa The order making the reference was lodged tion of the risk, which was 11 June 1965. at the Registry of the Court on 10 January Mr Murru considered that in pursuance of 1972. In accordance with Article 20 of the Article 1(r) of Regulation No 3 of the Protocol on the Statute of the Court of Council, the Caisse, in deciding whether he Justice of the EEC, the Confédération satisfied the conditions required, should Française Démocratique du Travail, acting have taken into account the recorded in the name of Mr Murru, the Caisse period of unemployment which he under
Régionale d'Assurance Maladie de Paris and went in Italy from 25 July to 27 November the Commission of the European Com 1964. Considering that under French law munities filed written observations. recorded periods of unemployment are Having heard the report of the Judge- equivalent to periods of employment, he Rapporteur and the views of the Advocate- brought the matter before the commission General, the Court decided that there was de Première Instance du Contentieux de la no need for a preparatory inquiry. Sécurité Sociale et de la Mutualité de Paris.
The Commission made its oral observa By decision of 18 March 1970 the latter tions at the hearing on 25 April 1972.
MURRU v CAISSE RÉGIONALE D'ASSURANCE MALADIE DE PARIS
The Advocate-General delivered his opin the person concerned satisfies the condi ion at the hearing on 18 May 1972. tions for entitlement to the benefits pre In the proceedings before the Court the scribed in that legislation'. It must be ad Commission was represented by its Legal mitted, at least as regards the acquisition Adviser, Italo Teichini. of the right to benefit, that the period of unemployment must be assessed according to the rules of the legislation under which II — Observations submitted under the invalidity pension is claimed, in other Article 20 of the Protocol on words, that of France. the Statute of the Court of The Caisse Régionale d'Assurance Maladie de Justice of the EEC Paris points out that the Istituto Nazionale della Previdenza Sociale of Nuoro—the The observations submitted under Article competent institution under Article 1 (r) of 20 of the Statute may be summarized as Regulation No 3—does not regard the follows: period during which Mr Murru was reg istered as unemployed—from 25 July to 27 The applicant in the main action points out November 1964— as being assimilated to that under Article 250 of the code de la an insurance period, since it did not entitle sécurité sociale (in its former version) he him to unemployment benefit. had, in order to obtain an invalidity pen Having regard to the clear terms of Article sion, to show either that he had worked for 1 (r) of Regulation No 3 it cannot consider 480 hours in the year preceding the declara this period as an assimilated period, with tion of invalidity, of which 120 must have the result that the applicant in the main occurred in the first quarter, or that he had action is not entitled to an invalidity pen been registered as involuntarily unem sion under the French social security sys ployed for an equivalent period. tem.
The sole fact that from 25 July to 27 No The Commission of the European Commu vember 1969 he was registered at the nities observes that under Article 1(r) of Labour Exchange of Gairo (Nuoro, Italy) Regulation No 3 it is necessary, in order to as a person seeking work therefore entitles determine whether and to what extent a him to an invalidity pension. In his opinion, period is assimilated to a period of insur it is not possible to rely on Article 1 (r) of ance or of employment, to refer to the Regulation No 3—as the Caisse had done legislation under which that period was —and to conclude from it that periods completed. treated as periods of employment must be Furthermore, Article 51 of tne ttc Treaty, defined by the legislation under which they which is the legal basis of Regulation No 3, were completed. provides for 'aggregation, for the purpose In view of the fact that under Italian law of acquiring and retaining the right to only periods of unemployment for which benefit and of calculating the amount of benefit is received are treated as periods of benefit, of all periods taken into account employment, such a conclusion would lead in the laws of the several countries'; this to the paradoxical result that migrant implies that although each Member State workers would be deprived of social secur must take into account, in addition to the ity rights by an excessively strict interpre insurance periods and assimilated periods tation of a Community provision which is completed under its own legislation, in intended to favour the free movement of surance periods and assimilated periods labour by facilitating the retention and ac completed under the legislation of any quisition of rights to social security bene other Member State, the question of the fits. validity of those periods must be resolved Such an interpretation would moreover be solely in accordance with the legislation contrary to Article 28 of Regulation No 3 under which they were completed. which provides that 'The institution of each In its judgment ot 5 December 1967 m of the Member States shall, in accordance Case 14/67 (Landesversicherungsanstalt with its own legislation, determine whether Rheinland-Pfalz v Weichner, [1967] ECR
JUDGMENT OF 6.6.1972 — CASE 2/72
331) the Court has already stated that Ar that in order to ascertain, for the purpose ticle 1 (r) of Regulation No 3 refers to the of determining entitlement to an invalid conditions under which national law will ity pension, whether a period, and in regard a given period as being equivalent particular a period of unemployment, is to insurance periods properly so called. an assimilated period and to what extent It emerges from the above considerations it is equivalent to a period of insurance that the reply to be given by the Court to or of employment, reference must be the question put might be as follows: made to the legislation under which that period was completed. Article 1 (r) of Regulation No 3 implies
Grounds of judgment
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 'assimi lated' 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.
s 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
MURRU ν CAISSE RÉGIONALE D'ASSURANCE MALADIE DE PARIS
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 legisla tion.
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.
« Article 1 (r) provides that 'for the purposes of this regulation ... the term "assim ilated 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 na tional 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.
Costs
13 The costs incurred by the Commission of the European Communities, which has
JUDGMENT OF 6.6.1972 — CASE 2/72
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.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 1, 26, 27 and 28; Having regard to the Protocol on the Statute of the Court of Justice of the Euro pean Communities, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
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.
Lecourt Mertens de Wilmars Kutscher
Donner Monaco
Delivered in open court in Luxembourg on 6 June 1972.
A. Van Houtte R. Lecourt
Registrar President