C-76/82

JUDGMENT OF 9. 12. 1982 — CASE 76/82

In C a s e 7 6 / 8 2

R E F E R E N C E to the C o u r t u n d e r Article 177 of the E E C T r e a t y by the T r i b u n a l du Travail [ L a b o u r T r i b u n a l ] , C h a r l e r o i , for a preliminary ruling in t h e action p e n d i n g before t h a t c o u r t between

SALVATORE MALFITANO, residing at Licata, Italy,

and

INSTITUT N A T I O N A L D·ASSURANCE M A L A D I E - I N V A L I D I T É , Brussels,

Facts and Issues

I — Facts and written procedure in all, at the rate of six working days per week, that is to say, a period more than six months but less than one year. Salvatore Malfitano, the plaintiff in the main action, worked in Belgium in 1955 After 1956 Mr Malfitano was employed and 1956. The insurance periods relating in various posu in the Federal Republic to that employment amount to 233 days of Germany and then in Italy where he

MALFITANO v INAMI

finally gave up work altogether on 31 plementation of Article 66 (1) of the December 1974. basic Law of 9 August 1963.

JUDGMENT OF 9: 12. 1982 — CASE 76/82

behalf of the Commission of the from the general sickness and invalidity European Communities. insurance scheme, Article 48 of Regu- lation No 1408/71 cannot have the effect of depriving him of the benefit of Upon hearing the repon of the Judge- a proportional invalidity pension from Rapporteur and the views of the the Belgian Institution. Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the The applicant proposes that the case to the Third Chamber. following reply should be given to the preliminary question submitted to the Court by the Tribunal du Travail, Charleroi: II — Summary of the obser- vations submitted to the "Article 48 (1) of Regulation Nò Court 1408/71 is not applicable where the migrant worker has completed on the territory of one Member Sute the (A) — Mr Malfitano states that refer- minimum period of insurance laid down ence to the length of periods of residence by the legislation of that State for the is not justified under Belgian law. acquisition of the right to a benefit." Belgian benefits, be they for invalidity or old age, are granted in accordance with insurance periods actually completed or (B) — The Belgian Institution recalls periods treated as such and not in that the reference to periods of residence accordance with periods of residence. stems from an amendment-to Regulation. Article 48 (1) applies only when the two No 1408/71 made following the conditions referred to therein are accession to the Community of new satisfied, namely where (a) the total Member States including Denmark and, length of the insurance periods to a lesser extent, the United Kingdom, completed under the legislation of a where the right to certain benefits is Member State amounts to less than one acquired by any resident on the territory year and (b) no right to benefits is of that State irrespective of any acquired by virtue only of those periods employment or payment of contributions under the provisions of the legislation of to the insurance scheme. that State.

Belgium and does not refer to rights applied by that institution so provides — acquired by way of aggregation. mentioned in Article 48 (1) of that regu- lation, namely a period of less than one year, only where a right to those benefits exists by virtue of national law alone." As regards the question whether the qualifying period completed at the time by the worker in Belgium does not preclude the application of Article 48 (1), it should be remembered that under (C) — The Commission recalls the clear Belgian law it is at the time when the and precise interpretation of Article risk insured against materializes that an 48 (1) which was given by the Court in examination has to be carried out as to its judgment of 20 November 1975 in whether the conditions determining the Case 49/75 Camilla Borelia v Lan- acquisition of the right are satisfied. In desversichemngsanstalt Schwaben [1975] particular, in the six months preceding ECR 1461. At paragraph 5 of that the materialization of the risk, the judgment the Court declared that: worker must have completed an "Under the actual terms of Article 48 (1) insurance period during which he can the latter only applies where two prove at least 120 working days or days conditions are fulfilled, that is, first, that treated as such and he must not have lost 'the toul length of insurance periods . . . the sums of being compulsorily insured does not amount to one year' and, within the meaning of Belgian legislation secondly, under the legislation of that for more than one month at the time of Member State 'no right to benefits is the beginning of the incapacity. acquired by virtue only of those periods'. It follows that this article cannot be applied where the right to benefits of a migrant worker . . . already arises solely from the provisions of the legislation of The Belgian Institution notes the the Member State in question." insurance periods completed by Mr Malfitano in Belgium and concludes that whilst Mr Malfitano did indeed complete the qualifying period required at the beginning of the period when he was It is undisputed, and the court making subject to Belgian legislation, even before the reference emphasized that point in its leaving Belgium he was unable to observations and in the preliminary preserve his acquired rights. question, that under Belgian law residence does not constitute a condition for the acquisition of a right to benefits or for qualification for that purpose. The Belgian Institution proposes that the following reply should be given to the preliminary question: In the context of Article 48(1) the concept of periods of residence refers only to those periods the completion of "With the exception of the situation which is a condition for the grant of mentioned in Anicie 38 (3) of Regu- benefits or enables qualification for that lation No 1408/71, the competent purpose to be acquired. In so far as a institution is obliged to grant benefits by period of residence cannot perform that virtue of an insurance period — or function under Belgian law, there is period of residence if the legislation therefore no need to take account of

2 The question arose in the course of a dispute between an Italian national, now living in Italy, and the Institut National d'Assurance Maladie-Invalidité [National Sickness and Invalidity Insurance Institution (hereinafter referred to as "the Belgian Institution")], the competent institution in Belgium for sickness and invalidity insurance. The plaintiff in the main action, who was declared unfit for work and is in receipt of allowances under the Italian scheme, claims an apportioned invalidity pension under the Belgian scheme. His application for such a pension was refused because the total duration of the periods during which Mr Malfitano was affiliated to the Belgian sickness and invalidity insurance scheme was less than one year, the period specified by Article 48 (1) of the above-mentioned regulation.

MALFITANO v INAMI

3 Mr Malfitano challenged the refusal to pay him a pension before the Tribunal du Travail, Charleroi. By an interlocutory judgment the tribunal declared that the above-mentioned article set two cumulative conditions for the acquisition of a right to benefits: one year's insurance or residence, and completion of the qualifying period laid down by the applicable legislation. It was in some doubt as to the meaning of the condition of residence imposed under the Belgian system and ordered the re-opening of the oral procedure to enable the Belgian Institution to present argument on that point.

4 Subsequendy, the Tribunal du Travail decided to stay the proceedings and refer to the Court for a preliminary ruling the following question :

JUDGMENT OF 9. 12. 1982 — CASE 76/82

7 The second pan of the question concerns the interpretation of the paragraph cited above in the case of a worker who, as in this case, has not completed one year's insurance or residence, but who nevertheless has completed the qualifying period required by national law for entitlement to benefits.

8 Anicie 48 ) provides that the competent institution of a Member State is not bou/ .. .o award invalidity benefits to a migrant worker when two conditions ire satisfied, the conditions being hat the total length of the periods oí insurance completed under the legislation of a Member State does not amount to one year, and that under that legislation no right to benefit is acquired by virtue only of those periods.

9 It is common ground that the total duration of the per >f insurance completed by Mr Malfitano under Belgian legislation is le n one year. Accordingly, it is for the Tribunal du Travail to a- in whether Mr Malfitano is entitled to benefits by virtue of the Belgian ¡. .slation: if he is, the competent institution is bound to award him benefits calculated in accordance with the regulation.

io As to that, the Belgian Institution has submitted that whether or not a worker is entitled to benefits by virtue of the Belgian legislation is a question which must be determined at the time at which the risk materialized. In particular, it argues that the worker must, within the six months preceding the materialization of the risk, have completed a period of insurance within which he can show that he worked, or is deemed to have worked, at least 120 days, and must not have ceased to be a person compulsorily insured within the meaning of the Belgian legislation for a period of more than one month prior to the date on which he became unfit for work. Mr Malfitano, it submits, did satisfy those conditions once, but ceased to satisfy them even prior to his departure from Belgium owing to the fact that there wa?a period during which he was not insured.

JUDGMENT OF ». 12. 1982 — CASE 76/82

15 Consequently, in order to establish whether a worker is entitled to benefits under the Belgian legislation within the meaning of Regulation N o 1408/71, the Tribunal du Travail must ascertain whether he has completed the qualifying period specified by that legislation.

Costs

16 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action before the national court, the decision as to costs is a matter for that court.

On those grounds,

T H E C O U R T (Third Chamber)

Delivered in open court in L u x e m b o u r g o n 9 D e c e m b e r 1982.

For the Registrar H. A. Rühi U . Everling

Principal Administrator President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED ON 28 OCTOBER 1982 *

Mr President, Admittedly, that number appears to be Members of the Court, not wholly uncontested, but it is not disputed that the total number of days of insurance amounts to less than one year. 1. T h e p r i n c i p a l facts The Koninklijke Besluit [Royal Decree] of 21 December 1963 provides that an Mr Malfitano, who lives in Italy, worked insurance year is to be equivalent to 312 in Belgium in 1955 and 1956 as a miner. days. After 1956 Mr Malfitano worked He was insured there in that capacity in Germany and later returned to Italy, against sickness and invalidity. The court where according to the information of reference, the Tribunal du Travail supplied by the Institut National [Labour Tribunal], Charleroi, calculates d'Assurance Maladie-Invalidité [National the number of days of insurance Sickness and Invalidity Insurance completed during that period as 233. Institution (hereinafter referred to as

I — Translated from the Dutch