C-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

María 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

1 — Language of the Case: French.

JUDGMENT

Facts and Issues

The facts, the procedure and the obser­ (Moniteur Beige of 18 January 1964, vations submitted pursuant to Article 20 Pasinomie 1963, III, p. 1615), and in of the Protocol on the Statute of the view of her age, the person concerned Court of Justice of the EEC may be should have completed 450 working summarized as follows: days or days treated as such within the 27 months prior to her claim, that is from 3 September 1971 to 2 December I — Facts and procedure 1973.

period from 2 July 1972 to 4 August The person concerned then instituted 1973. proceedings before the Tribunal de Article 67 of Regulation (EEC) No Travail (Labour Tribunal), Liege, 1408/71 determines the effect of the which, in its judgment of 23 September 1975, ordered the National aggregation of periods in regard to the acquisition of the right to Employment Office to pay her unemployment benefits as from 3 unemployment benefits: December 1973. 1. The competent institution of a However, following an appeal that Member Sute whose legislation judgment was annulled by a judgment makes the acquisition, retention or of 29 June 1976 of the Cour de Travail recovery of the right to benefits (Labour Court), Liege, which confirmed subject to the completion of the decision refusing the benefits. That insurance periods shall take into court held that, notwithstanding the account, to the extent necessary, provisions of Article 1 (r) and (s) of periods of insurance or employment Regulation (EEC) No 1408/71, Article completed under the legislation of 67 (1) of that regulation lays down that, any other Member Sute, as though in order to be taken into account in they were periods completed under Belgium for the purposes of the legislation which it administers, unemployment insurance, periods of provided, however, that the periods employment or insurance completed in of employment would have been Italy would have to be considered as counted as insurance periods had insurance periods if they had been they been completed under that completed under Belgian legislation. legislation. When the matter was brought before 2. The competent institution of a the court of last instance, the Belgian Member Sute whose legislation Cour de Cassation, that court, by a makes the acquisition, retention or judgment of 19 September 1977, stayed recovery of the right to benefits the proceedings and decided to submit subject to the completion of periods to the Court of Justice of the European of employment shall take into Communities the following preliminary account, to the extent necessary, question : periods of insurance or employment completed under the legislation of "Must the provision contained in Article any other Member Sute, as though 67 (1) of Regulation (EEC) No they were periods of employment 1408/71 of the Council of 14 June completed under the legislation 1971, pursuant to which a Member which it administers. Sute shall take into account a period of employment completed under the The National Employment Office, the legislation of another Member Sute only if that period of employment competent Belgian institution, refused would have been counted as an to effect this aggregation on the ground that, according to Belgian legislation insurance period had it been completed (Article 5 of the Royal Decree of 28 under the legislation of the first Member Sute, be taken to mean that November 1969, Moniteur Beige 5 December 1969, Pasinomie 1969 p. that condition applies even if the period 1849) working days completed as a of employment is counted as an domestic servant cannot be taken into insurance period in the other Member State?" consideration for the purposes of Articles 118 and 120 of the said Royal It should be noted that the Cour de Decree of 20 December 1963. Cassation in its judgment making the

II — Summary of the obser­ Accordingly the provisions of Article 67 vations submitted pursuant (1) taken in conjunction with these of to Article 20 of the Article 1 (r) of Regulation No 1408/71 Protocol on the Statute of require the Belgian institution to accept the Court of Justice of the validity of the periods of insurance the European Economic completed in Italy for the purpose of Community the acquisition of the right to unemployment benefits. The appellant in the main action observes that Article 67 of Reguladon The Court of Justice has already (EEC) No 1408/71 permits account to delivered a ruling to this effect in the be taken in connexion with the judgment delivered on 6 June 1972 in acquisition, retention or recovery of the Case 2/72 Murru ([1972] ECR 333). right to unemployment benefits, of both periods of insurance (paragraph (1)) and In conclusion, the appellant in the main periods of employment (paragraph (2)) action considers that the institution of a

The Commission, after recalling that renders the acquisition of the right Article 67 (1) of Regulation (EEC) No conditional on the completion of periods 1408/71 corresponds, with the of insurance and, on the other, that the exception of certain purely formal period in dispute completed in Italy by modifications, to the provisions of way of domestic service is considered in Article 33 (2) and (3) of the previous Italy as a period of insurance. Regulation No 3, claims that the sufficient number of foreign periods The Commission relies upon the necessary for the purposes of aggre­ judgment of the Court of Justice in the gation in the State whose legislation is Murru case and claims that, in order to applicable is established with regard to determine whether a period of unemployment as follows: employment is to be considered as a period of insurance within the meaning (a) If the legislation applicable requires of Article 1 (r) and of Article 67 (1). the completion of periods of "reference must be made to the insurance Article 67 (1) provides two legislation under which such period was possibilities. completed". First, it permits aggregation of periods of insurance within the In those circumstances the condition meaning of Article 1 (r), that is to laid down by Article 67 (1) in fine does say defined or recognized as such in not apply. another Member State.

(b) If, on the other hand, the legislation "The provision contained in Article 67 applicable requires the completion (1) of Regulation (EEC) No 1408/71 of of periods of employment Article 67 14 June 1971 of the Council of the (2) permits the aggregation of European Communities, pursuant to periods of insurance or employment which a Member Sute shall take into without repeating, with regard to account a period of employment periods of employment, the completed under the legislation of condition imposed by Article 67 (1) another Member Sute only if that in fine. period of employment would have been counted as an insurance period had it The Commission observes that the Cour been completed under the legislation of de Cassation, in its judgment making the first Member Sute, is not applicable the reference, presupposes on the one if that period of employment is counted hand, that the relevant legislation (in in the other Member Sute as a period the present case Belgian legislation) of insurance."

JUDGMENT OF IS. 3. 1978 — CASE 126/77

III — Oral procedure Mr J.-C. Séché, submitted its oral obser­ vations.

At the hearing on 9 March 1978 the The Advocate General delivered his Commission of the European opinion at the hearing on the same day. Communities, represented by its agent,

Decision

1 By 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).

6 In 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.

7 In 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.

8 On the other hand, that condition does not apply to the aggregation of insurance periods within the meaning of Article 1 (r) of the regulation.

9 Furthermore, 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 aggre­ gation set out in Article 67 (1), reference must be made to the legislation under which such period was completed.

10 It 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

A period of employment completed under the legislation of a Member State other than that in which the competent institution b 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.

Sørensen Mackenzie Stuart Touffait

Delivered in open court in Luxembourg on 15 March 1978.

A. Van Houtte M. Sørensen

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 9 MARCH 1978 <apnote>1</apnote>