C-93/76

JUDGMENT OF THE COURT 16 MARCH 1977 1

Fernand Liègeois v Office national des pensions pour travailleurs salariés (preliminary ruling requested by the Tribunal du Travail of Charleroi)

Case 93/76

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 employment for the purposes of continued insurance' appearing in Ar­ insurance for periods of study whether ticle 9 (2) of Regulation No 1408/71 there is any continuance of existing covers assimilation to periods of insurance or not.

In Case 93/76

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

1 — Language of the Case: French.

JUDGMENT OF 16. 3. 1977 — CASE 93/76

JUDGMENT

The facts of the case, the course of the an occupation in which he was subject to procedure and the observations Belgian law on pensions for employed submitted under Article 20 of the persons. Protocol on the Statute of the Court of Justice of the EEC may be summarized On 21 February 1974 Mr Liegeois as follows: brought an action before the Tribunal du Travail, Charleroi, contesting the decision of the ONPTS and claiming I — Facts and procedure that under Article 9 (2) of Regulation No 1408/71 the insurance periods completed The applicant in the main action, a in France immediately after his periods Belgian national, studied engineering in of study should be regarded as insurance Belgium from 1950 to 1954 and in periods completed in Belgium. France from 1954 to 1956. Having completed his military service in Article 9 (2) of Regulation No 1408/71 Belgium he worked in France from 1958 provides that to 1960. After continuing his studies in the United States from 1960 to 1963, he 'Where, under the legislation of a worked in France again in 1964 and Member State, admission to voluntary or 1965. From 1966 to 1970 he worked in optional continued insurance is the United States and since 1971 he has conditional upon completion of been working in Belgium. insurance periods, any such periods completed under the legislation of Belgian legislation allows a worker, another Member State shall be taken into within the general pension scheme for account, to the extent required, as if they employed persons to assimilate periods were completed under the legislation of spent in study to periods of employment, the first State.' subject to his paying the appropriate contributions. On the basis of these The Tribunal du Travail, Charleroi, provisions Mr Liégeois requested the considering that the settlement of the competent Belgian authority, the Office dispute in the main action was bound up national des pensions pour travailleurs with certain provisions of Community salaries (ONPTS), the defendant in the law decided by judgment of 9 September main action, so to assimilate his periods 1976 to stay proceedings and to refer to of study (1 January 1951 to 31 August the Court of Justice under Article 177 of 1956 and 1 September 1960 to 31 August the EEC Treaty the following questions 1963). for a preliminary ruling: 1. Is the condition laid down by Article By a decision of 23 January 1974, the 7 (1) (i) of the Belgian Royal Decree of ONPTS rejected this request on the 21 December 1967 on the general ground that the person concerned did regulation of the retirement and not fulfil one of the requirements of survival pensions scheme for Belgian legislation for the buying in of employed persons and consisting in periods of study, namely, the pursuit the obligation on the part of an immediately after the period of study, of employed person who wishes to

regularize his periods of study to continued voluntary or optional prove that he exercised, immediately insurance. By making this admission after such periods, a professional or subject to proof that immediately after trade activity such as to bring into his studies he exercised a professional or application the Belgian Royal Decree trade activity involving the application of No 50 of 24 October 1967, the Belgian Royal Decree No 50, Article concerning the same pensions, 7 (1) (i) of the Belgian Royal Decree of affected by Article 9 (2) of European 21 December 1967 does in fact make Economic Community Regulation No admission to voluntary or optional 1408/71 as being a clause under continued insurance subject to which admission to voluntary or completion of an insurance period. It is optional continued insurance is made therefore appropriate to apply Article 9 conditional upon the obligation to (2) of Regulation No 1408/71. complete an insurance period, or by any other provision of a European It is likewise appropriate to apply Article regulation? 45 of Regulation No 1408/71 as 2. If question No 1 is answered in the amended by Regulation (EEC) No negative, can the employed person of 2864/72, Articles 1 to 13, since Belgian Belgian nationality claim either legislation makes the acquisition, equality of treatment under Article 3 retention or recovery of the right to (1) of Regulation No 1408/71, or to old-age and pension benefits subject to have taken into consideration the the completion of insurance or residence insurance period completed in France periods. Under these Community as though it had been completed regulations account must in the same under Belgian legislation under way be taken of any period completed Article 45 (1) of the same regulation, under the legislation of another State, in this case France. that is, for the acquisition, retention or recovery of the right to benefits of The defendant in the main action leaves old-age and death insurance the matter to the discretion of the Court. (pensions), or under any other It merely observes that Mr Liégeois, provision of Community law? having been subject to payment for French social security, fulfils the The judgment making the reference was received at the Court on 28 September conditions required for his being allowed 1976. to assimilate his periods of study, if the Court considers that the insurance The Court on hearing the report of the periods completed under the legislation Judge-Rapporteur and the views of the of a Member State must be deemed to Advocate-General decided to open the have been completed under the oral procedure without any preparatory legislation of another Member State in inquiry. accordance with Articles 9 (2) and 45 (1) of Regulation No 1408/71.

periods of employment when that worker in the relevant Member State. Article 1 has immediately after his studies been (a) (iii) of Regulation No 1408/71, which compulsorily subject to the social lays down that 'worker' means any security legislation of another Member person who is voluntarily insured if such State of the Community. person has previously been compulsorily insured for the same contingency under Whilst under Belgian legislation students a scheme for employed persons of the are not bound to join the general social same Member State, does not run counter security system, they are so bound under to such an interpretation, for the sole French law. Under Belgian law periods of purpose of this provision is simply to military service are assimilated to periods show who is classed as a worker; no of employment as a worker for the provisions exist whereby periods purpose of applying the general pension completed before and after his becoming scheme, provided that the person subject to insurance shall be treated concerned was employed as a worker in differently. Belgium at the time of his call-up for military service or has been a worker for Consequently the Commission considers at least one year within the three years that the appropriate answer to the court's following the end of his military service. question is as follows:

LIÉGEOIS v OPTS

Law

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.

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

LIÉGEOIS v OPTS

that used for the admission of periods of study and where the rules of application also differ.

— 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

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.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen

Mackenzie Stuart O'Keeffe Bosco Touffait