C-287/92

MAITLAND TOOSEY

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 18 November 1993 *

Mr President, 4. Mrs Toosey there applied for severe dis­ Members of the Court, ablement allowance ('SDA') but her applica­ tion was rejected by the local authorities on the formal ground that the United Kingdom authorities were not competent as well as on A — Introduction the substantive ground that she did not sat­ isfy the requirement of ten years' past resi­ dence over the previous 20-year period.

1. The present request for a preliminary rul­ ing by the Social Security Commissioner raises questions regarding the competent State for the payment of invalidity benefit and the possibility of taking into account periods of residence completed in another Member State in support of a claim. 5. Mrs Toosey, however, takes the view that the United Kingdom authorities are compe­ tent by reason of Community law. Further­ 2. Mrs Toosey, the appellant in the main more, she argues, periods of residence com­ proceedings, is a British national whose first pleted in another Member State must employment was in the United Kingdom in likewise be taken into account under Com­ 1964 and 1965. She ended that employment munity law. when she married and became a mother. In 1973 she moved with her family to Belgium for the purposes of her husband's work. Mrs Toosey there resumed employment in 1974 and continued working until 1982.

3. In 1982 she was obliged to cease working 6. The Social Security Commissioner mak­ on health grounds. She suffers from spastic ing the reference seeks to establish whether hemiplegia which confines her to a wheel­ Article 71(1)(b)(ii) of Regulation No chair. In 1983 the family moved to France, 1408/71 applies to someone in MrsToosey's again for reasons connected with position (Question 1). If it does so apply, the Mr Toosey's work, before returning to the question then arises as to whether the com­ United Kingdom in 1985. petent institution is that of the State of employment (Article 39(1) of Regulation No 1408/71) or that of the State of residence * Original language: German. (Article 39(5) in conjunction with Article

9. Article 39, which is entitled 'Award of Benefits', contains a provision for determin­ ing the competent institution. Under that B — Opinion provision, competence is in principle vested in the institution of the Member State whose 'legislation was applicable at the time when incapacity for work followed by invalidity 4 occurred'. If there is entitlement, that insti­ 8. As a British national who has been tution alone will be competent within the employed in more than one Member State, meaning of the regulation (Article 39(2]. Mrs Toosey is undoubtedly a person who Only if there is no entitlement against that comes within the scope of Regulation No institution (even when account is taken of 1408/711 (Article 2). Title III, Chapter 2, the completion of other periods creating contains rules on the payment of benefits in entitlement in another Member State (Article the case of invalidity; in that connection, a 38], can there be any question of another distinction is drawn between cases in which institution being the competent institution the amount of benefit is independent of the (Article 39(3)). Both principal and alternative duration of periods of insurance (Articles 37, competent institutions will be institutions of 38 and 39) and cases in which the amount of a (former) State of employment.

1 — Consolidated version of Regulation (EEC) No 1408/71 of 2 — See Article 37(2). the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed per­ 3 — Introduced with retroactive effect from 29 November sons and to members of their families moving within the 1984 by Regulation No 2195/91 (OJ 1991 L 206, p. 2). Community (OJ 1992 C 325, p. 1). 4 — My emphasis.

10. Article 39(5), in the version of the regu 71(1)(b)(ii) since she returned as an lation applicable to this dispute, contains a employed person, other than a frontier derogating rule which provides that the insti worker, to the territory of the State in which tution of the State of residence is compe she resided. 5 tent. Mrs Toosey is relying on that article. Article 39(5) refers to Article 71(1)(a)(ii) and to the first sentence of Article 71(1)(b)(ii). Article 71 is itself a special provision in the chapter on unemployment benefits and con

11. According to the general rules contained tive, however, is a separate matter. 7In any in Article 13(2)(a), the competent State is the event, it has not been suggested that State of employment. The personal scope of Mrs Toosey resided in the United Kingdom Article 71 is thus restricted a priori to per during her period of employment in Bel sons who during their period of employment gium. resided in another State, irrespective of the form which such residence may have taken. The first reference (Article 71(1)(a)(ii)) deals with frontier workers as defined in Article 1(b) of the regulation. There is no 13. The above interpretation of Article 71 of doubt that Mrs Toosey does not come within the regulation is supported by the case-law. that category of workers. 6 However, she In its judgment in Di Paolo, 8 the Court argues that she is an employed person within ruled that Article 71(1)(b)(ii) was to be given the meaning of the first sentence of Article a narrow interpretation. In its judgment in

She did tions in the reference are relevant only to the previous legal not thereafter return to the State of employment as she did position. not reside there during the last few weeks of the employ ment relationship because she was on leave. In Case 6 — Neither as a genuine frontier worker nor otherwise, which C-102/91 Knock v Bundesanstalt fur Arbeit [1992] ECR I- the applicability of Article 71(1)(b)(ii) would in certain cir 4341, the applicant returned for a number of months at a cumstances have made possible (judgment in Case time to her State of residence after spending the academic 1/85 Mietile v Bundesanstalt fur Arbeit [1986] ECR 1837). In year as a foreign-language assistant in the United Kingdom. Case 76/76 Di Paolo v Office National de l'Emploi [1977] ECR 315, the Court took the view that the fact that the 8 — Cited above in footnote 6. employed person left her family in the State in question con 9 — Case 128/83 Caisse Primaire d'Assurance Maladie de Rouen stituted evidence that she retained her residence there. v Guyot [1984] ECR 3507.

17. Article 38 of the regulation, in the ver­ sion applicable at the time of the application 14. As Mrs Toosey accordingly does not for invalidity benefit in 1986, expressly pro­ come within the personal scope of Article vided that only periods of insurance com­ 71 of the regulation, she cannot rely on pleted under the legislation of another Mem­ Article 39(5) thereof. For that reason, the ber State could be considered for the general rule contained in Article 39(1) and acquisition of entitlement. (2) applies to her; under that rule, the com­ petent Belgian institution would be compe­ tent as the institution of the last State of employment. If for any reasons (which are not here evident) a claim against that institu­ tion should fail, the competent institution of the United Kingdom, as the institution of a previous State of employment, would 18. The United Kingdom takes the view that become relevant under Article 39(3) of the periods of residence completed in another regulation. Member State cannot be taken into account. In its opinion, benefits can be granted only subject to the conditions of the legislation of the Member State under which the minimum 15. Question 1 in the Social Security Com­ period of residence in the United Kingdom missioner's reference must accordingly be is required. The Commission, on the other answered in the negative. Questions 2, 3 and hand, considers that periods of residence 4 relate to the applicability of Article 39(5). completed in another Member State must be In view of the solution here proposed, it is taken into account. unnecessary to examine those questions.

20. For the purpose of enforcing claims under a non-contributory system, it is not normal to complete periods of insurance 22. The rules introduced by subsequent under that system. A restrictive interpreta­ amending regulations do not argue against tion of Article 38 would for that reason nor­ such a result: mally be bereft of practical relevance in the case of claims against a non-contributory system. The intervention of Regulation No 1408/71 would not render an applicant eligible. The objective of Article 51 of the EC Treaty and of Regulation No In my opinion, the amplification of Annex 1408/71 adopted to implement it, which is to VI, Part L, Nos 18 and 19, of the regulation place a migrant worker in the position he following in the wake of the introduction of 12 would have been in had he worked in only Article 13(2)(f) by Regulation No 13 one Member State, would not be attained if 2195/91 does not argue against recognition the social security system of another Mem­ of periods of residence. The extension of ber State failed to take account of factors Annex VI, Part L, resulting from the intro­ 4 arising in connection with the exercise of the duction of severe disablement allowance 1 freedom of movement of employed persons. casts light on the legal consequences of the recently introduced Article 13(2)(f).

26. In conclusion, it is necessary to reply to Question 6 in the reference by the Social Security Commissioner, which concerns the That extension of the regulation's scope does case in which the Belgian institution is com­ not, in my view, argue against a similar rec­ petent under Article 39(1). The Social Secu­ ognition of periods of residence completed rity Commissioner seeks to determine before the entry into force of that rule. whether the institution of the State of resi­ dence has any obligations of a formal or sub­ stantive nature. If one proceeds on the premiss that the institution of the State of 24. Furthermore, the entry into force of employment is under an obligation to pay, 15 amending Regulation No 1248/92 does not there can be no such obligation on the insti­ lead to any different result. That regulation tution of the State of residence. In the con­ expressly provides that with effect from text of invalidity payments there is no provi­ 1 June 1992 periods of residence completed sion for the apportionment of the obligation in other Member States are also to be taken to pay between the competent State and the into account for the purposes of Article 38. State of residence, as there may be, for The recitals in the preamble to that regula­ example, under the chapter on sickness and 16 tion expressly provide as follows: maternity, with subsequent reciprocal claims for reimbursement between institutions.

Member State. Article 35 of Regulation No prevent the Member States from imposing 574/72, however, contains a specific provi­ more stringent requirements with a view to sion regarding applications for invalidity facilitating the making of a claim by a person benefits. That article expressly provides that entitled. It is particularly in the case of inval­ a claim can be submitted to the institution of idity benefits that one might envisage a duty the State of residence. That institution will on the part of the authorities of the State of then be responsible for forwarding the claim residence to provide assistance, in view of to the competent institution. the fact that the pursuit of a claim in another Member State, which in any case involves expense, is incomparably more difficult for a 28. The procedural provisions cited above disabled person. However, no such express constitute minimum requirements with duty under Community law can be inferred which the institutions of the Member States from Regulation No 1408/71 or Regulation are obliged to comply. There is nothing to No 574/72.

C — Conclusion

29. In the light of the above arguments , I suggest the following answers to the questions referred:

(1) The first sentence of Article 71(l)(b)(ii) of Regulation No 1408/71 does not apply to a worker who , after the conclusion of his employment , transfers his residence to another Member State.

(2) The competent institution of a Member State is required to take account of periods of residence completed in another Member State by a person coming within the personal scope of Regulation No 1408/71 in the same way as peri­ ods of residence completed in the territory of the competent Member State.