C-322/95

2. I will suggest that the Court should rule against such periods being taken into account in the case submitted to it but, before doing so, I will first define the legal — that person must have paid, or have had and factual context of the case. credited in his favour, at least 260 weekly contributions (five years of pensionable service); * Original language: French. 1 — Article 9a of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to mem­ bers of their families moving within the Community (OJ, 2 — See Article 4 of Law N o 222 of 12 June 1984 concerning English Special Edition 1971 (II), p. 416), as introduced with revision of the rules on invalidity pension (GURI N o 165 of retrospective effect by Council Regulation (EEC) N o 16 June 1984), which refers to the conditions laid down b y 2332/89 of 18 July 1989 (OJ 1989 L 224, p. 1); Article Article 9(2) of Royal Decree-Law N o 636 of 14 April 1939, 15(l)(f) of Council Regulation (EEC) N o 574/72 of 21 which became Law N o 1272 of 6 July 1939 [which was March 1972 laying down the procedure for implementing replaced by Article 2 of Law N o 218 of 4 April 1952 ( G U R I Regulation N o 1408/71 (OJ, English Special Edition 1972 (I), N o 89 of 15 April 1952, ordinary supplement)], as amended p. 159). by Law N o 222, cited above.

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O P I N I O N OF MR LÉGER — CASE C-322/95

— finally, at least 156 weekly contributions last preceding the onset of the invalidity, (three years of pensionable service) must and have been paid or credited during a refer- ence period of five years preceding his application for benefit.

3 — Sozialgesetzbuch (hereinafter 'SGB'), Book VI [BGBI. I l l 860, as amended by the Gesetz zur Reform der gesetzlichen Rentenversicherung (Law on the Reform of Statutory Old- 4 — Paragraph 43, SGB. Age Insurance) of 28 December 1989 (BGBl. IS.2261)]. 5 — Paragraph 58, SGB.

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IURLARO v INPS

8. Under the Italian scheme those periods denza Sociale ('the INPS') for the Italian are regarded as contribution periods for the invalidity pension. 7 purposes of entitlement to social security benefits.

12. That application was refused for failure to comply with one of the conditions laid 9. Under the German scheme the periods in down by the Italian legislation concerning question constitute grounds for extending the contributions. The INPS took the view that reference period for calculating the minimum no contribution had been paid during the insurance requirement. five years preceding the application, that ref- erence period extending from 18 October 1984 to 18 October 1989.

Factual and procedural context

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OPINION OF MR LÉGER — CASE C-322/95

recognition of his entitlement to invalidity Community provisions on social security for allowance had been fulfilled. workers moving within the Community, laid down by Regulation N o 1408/71, and Regu- lation N o 574/72 which lays down the detailed rules for its application.

15. The national court considers that the scope of each of the Community provisions cited needs to be clarified, since Article 9a of Regulation N o 1408/71 seems to imply a condition that the legislation of both coun- Relevant Community legislation tries must provide for the neutralization of specified periods, 'excluding a situation such as that in the present case, where that possi- bility is provided for in only one of the two Member States'. 8

the conditions for granting social security 22. The Court of Justice has therefore inces- benefits ...'. 9 santly pointed out that 'the regulations did not set up a common scheme of social secu- rity, but allowed different schemes to exist, creating different claims on different institu- tions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by Community law'. n 20. Nevertheless, divergences arising from the diversity of the schemes in force can con- stitute an obstacle to the principle of free- dom of movement for workers. Workers might hesitate to exercise that fundamental right if they were not assured that it would not entail harmful consequences for them as 23. That coordination, which is thus aimed regards their social security cover. That is at eliminating the negative effects which why Article 51 of the EC Treaty provides for national legislation might produce when a the adoption of 'such measures in the field of worker crosses a frontier, is centred on four social security as are necessary to provide basic principles. Those principles, as freedom of movement for [migrant] work- expressed in general terms below, are also ers'. reaffirmed for nearly all the risks governed by Regulation N o 1408/71:

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O P I N I O N O F MR LÉGER — CASE C-322/95

— the principle of the conservation of concerned, two types of legislation exist in acquired rights; 14 the Member States: those under which the amount of benefits is independent of the duration of periods of insurance (Articles 37 to 39), and those under which the amount of the invalidity benefit depends on the dura- — the principle of the retention of rights in tion of insurance periods (Article 40). Con- the course of acquisition, also referred to sidering the nature of the Italian legislation as the principle of the aggregation of on the matter, it can be seen at the outset insurance periods. , 5 that only the provisions of Article 40 are applicable to the situation of the applicant in the main proceedings.

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IURLAROvINPS

not met, was a proper one having regard to larly by making arrangements to secure for the need to comply with the principle that migrant workers: insurance periods are to be aggregated. Only then will I examine the question as formu- lated, concerning the 'exportation', for the purposes of determining the reference period in Italy, of the 'neutralization' under German law of periods of unemployment for which 'aggregation, for the purpose of acquiring benefit is paid. and retaining the right to benefit and of cal- culating the amount of benefit, of all periods taken into account under the laws of the sev- eral countries'.

Argument

30. That principle is taken up by Article 9(2) of Regulation N o 1408/71, which equates insurance periods completed under the legis- The question whether the INPS properly lation of any Member State with those com- refused to grant the applicant an invalidity pleted under the legislation of the State in allowance which benefit is sought.

In the words of this Court, 'the object of 28. I think it is necessary to dwell for a that provision is to guarantee that periods of moment on the question whether in this case insurance completed in different Member the principle that insurance periods are to be States are treated as equivalent so that the aggregated was properly applied, since mere persons concerned can satisfy the condition reading of the documents produced during of a minimum length of insurance periods the written procedure could give rise to where national legislation makes admission doubts on the matter. to a voluntary or optional continued insur- ance scheme subject to such a condition'. 1 7

32. The principle thus excludes the possibil- ity that, whenever a worker begins a new insurance period in a Member State, he is regarded there as a newly-insured person. The institution of the Member State in which an invalidity benefit is applied for is required 36. In principle, therefore, under Italian leg- to take into account, in so far as may be nec- islation, Mr Iurlaro may claim to have com- essary, periods completed by the migrant plied with the condition the non-fulfilment worker in any other Member State as if they of which had been raised in objection to his were periods completed under the legislation application. That objection appears, in the which it administers, '... without discrimi- final analysis, to be motivated solely by the nation as against other workers by reason of consideration that the condition in question the exercise of his right to freedom of move- was fulfilled under the legislation of a Mem- ment'. 19 ber State other than Italy.

33. In this case, Mr Iurlaro's application for recognition of his entitlement to an invalid- ity pension was rejected on the ground that 37. On the basis of those considerations he did not fulfil the condition, laid down by alone, as set out in the order for reference, Italian legislation, that the required number the refusal by the INPS would appear to be of contributions (three years of pensionable contrary to the abovementioned principle service) have been paid on his account dur- that insurance periods are to be aggregated. ing the reference period (five years preceding the application).

In that judgment, the Court held that 'the circumstances, to discourage him from exer- requirements of freedom of movement' cising his right to freedom of movement'. 21 meant that, when calculating old-age pen- sion, periods of invalidity had to be treated as periods of active employment, even where the applicable national legislation provided for such assimilation only where the incapac- ity for work arose at a time when the worker 39. If regard is had solely to procedural was employed in the Member State in ques- documents lodged before the hearing, there- tion, and if, at the time the incapacity for fore, the question referred might not appear work arose, he was in reality employed in to be directly relevant. A proper application another Member State. of Articles 48(2) and 51 of the Treaty would suffice; the Italian legislation would encroach upon the freedom of movement for migrant workers if it provided that only periods of insurance against unemployment completed on national territory could be regarded as It held that relevant contribution periods for the pur- poses of social advantages, to the exclusion of similar periods completed on the territory of other Member States.

'... it would be contrary to Articles 48 to 51 of the Treaty if, as a consequence of the exer- cise of their right to freedom of movement, migrant workers were to lose the advantages in the field of social security guaranteed to 40. It would have to be concluded that them by the laws of a single Member State; Community law precluded the application of such a consequence might discourage Com- national legislation, such as that administered munity workers from exercising their right by the INPS, which did not assimilate peri- to freedom of movement and would there- ods of unemployment insurance completed fore constitute an obstacle to that freedom'. in another Member State to those completed on its territory, for the purposes of calculat- ing the minimum insurance requirement attached to the grant of the invalidity allow- ance.

45. As I have already mentioned, Commu- 42. In that case, the line of reasoning set out nity rules on social security envisage only above cannot apply. the coordination of existing national systems. They do not in any way introduce an inde- pendent system for migrant workers. In that respect it would not be permissible for a migrant worker like Mr Iurlaro to derive advantage from a system that proved to be discriminatory to the detriment of non- migrant workers. The objective is not to 43. Mr Iurlaro could benefit from the rule, allow the accumulation of the most favour- laid down by the Italian legislation, assimi- able conditions for acquisition of entitlement lating periods of unemployment to contribu- to benefit laid down by the various national tion periods only in respect of a period not laws to which a migrant worker is succes- exceeding six months. The requirement for sively subject, for the purpose of acquiring entitlement to a pension — evidence of three entitlement to pension. years' contributions during the reference period — would thus clearly not be fulfilled. The refusal of his claim by the INPS would therefore be justified.

46. That would, however, be the result if one were to disapply the rule on the maximum duration of coverage of periods of unem- 44. Although, as Community law stands, ployment which is laid down in the Italian Member States are free to enact rules favour- legislation. ing certain migrant workers, 22 Mr Iurlaro cannot, in the absence of such national pro- visions, be granted advantages additional to those which he would have been able to

48. I shall now, as invited by the Pretore di aforementioned legislation provides that the Roma, examine the question whether period during which the benefits have been Mr Iurlaro might, nevertheless, lay claim to granted under the legisUtion of that Member an invalidity pension by requiring the INPS State or periods devoted to the upbringing of to apply the rule, known only to German children in the territory of that Member legislation, that the period of insurance State shall give rise to prolongation of the ref- against unemployment completed by the erence period, periods during which invalid- person concerned in that other State is to be ity pensions or old-age pensions or sickness suspended for the purpose of extending the benefits, unemployment benefits or benefits reference period. for accidents at work (except for pensions) have been awarded under the legisUtion of another Member State and periods devoted to the upbringing of children in the territory of another Member State shall likewise give The question of the 'exportation' of the 'neu- rise to a prolongation of the aforesaid refer- tralization' which is provided for solely by ence period.' 23 the German legisUtion

49. O n that point, the national court asks 51. That provision thus imposes an obliga- whether it is relevant to apply two provi- tion, on the Member State in which prolon- sions of Community legislation, and requests gation of the reference period is allowed, also an interpretation for that purpose. As will be to take account, within that period, of peri- seen, neither of those provisions may be ods during which certain benefits were invoked in this case. awarded under the legislation of another Member State, without, it seems, requiring that those benefits should also have given rise to prolongation in that latter State.

53. What Article 9a ultimately constitutes is the application to the particular case of States whose legislation provides for the prolonga- ' 1 . In the cases referred to in Articles tion of the reference period of the principle, 18(1), 30 38, 3i 45(1) to (3), 32 64 « and 67(1) laid down in paragraph 2 of the preceding and (2) 34 of the Regulation, aggregation of article, that insurance periods are to be aggregated. 25 Since Italian legislation lays down no such rule in respect of the benefits 28 — Thus the Court of Justice held, concerning the conditions in question, 2 6 reliance on that provision for entitlement to an invalidity pension, that it was incom- patible with Community law for facts and circumstances serves no purpose in this case. 27 The most allowing prolongation of the reference period not to be taken into account by a Member State wnich provides for that can be said is that it would be different that prolongation if they occur in another Member State (Paraschi, cited above, paragraphs 24 and 25). 29 — The regulation in question is Regulation N o 1408/71. 30 — The provision concerning 'Aggregation of periods of insur- ance, employment or residence' in relation to sickness and 24 — Emphasis added. maternity benefits. 25 — In his Opinion in Case C-349/87 Paraschi v Landesver- 31 — This provision concerns the 'Consideration of periods of sicherungsanstalt Württemberg [1991] ECR 1-4501, Advo- insurance or of residence completed under the legislation to cate General Tesauro saw it as a 'declaratory provision which an employed person or a self-employed person was expounding the obligation of non-discrimination laid down subject for trie acquisition, retention or recovery of the by the Treaty' (point 15, second paragraph). right to benefits* for the purposes of granting invalidity benefits to workers subject to legislations under which the 26 — The INPS has referred to certain periods, which alone are amount of benefits is independent of the duration of periods capable of being regarded as neutral, and thus capable of of insurance. being taken into account for the prolongation of tne refer- ence period, provided for in Article 37 of Presidential 32 — Concerning the 'Consideration of periods of insurance or Decree No 818 of 26 April 1957 (p. 3 of the French transla- of residence completed under the legislation to which an tion of its observations). employed or self-employed person was subject, for the 27 — N o r does Mr Iurlaro dispute that assessment: 'in so far as acquisition, retention or recovery of the right to benefits' in relation to old age and death (pensions). Italian legislation docs not enact rules neutralizing periods of unemployment in respect of which benefit Ís paid, it does 33 — Concerning the 'Aggregation of periods of insurance or not appear that that provision can help to resolve the ques- residence' in relation to death grants. tion at issue in this case' (point DC, paragraph 3 of his 34 — Concerning the 'Aggregation of periods of insurance or observations). employment* in relation to unemployment.

56. Since neither of the two provisions referred to by the Pretore di Roma is appli- cable to this case, it is not possible to deduce from either of them an obligation on the part of the INPS to prolong the reference period, laid down by Italian legislation for calculat- ing the minimum insurance requirement for acquisition of entitlement to an invalidity (ii) extend such time-limit for the duration benefit, by means of the 'export' of the rule of periods of insurance or residence laid down by German legislation for the sus- completed wholly or partly within the pension of the period during which said time-limit under the legislation of Mr Iurlaro drew unemployment benefit in another Member State, where the peri- that latter State, where no such rule exists in ods of insurance or residence involved Italian law. under the legislation of the second Member State give rise only to the sus- pension of the time-limit within which the periods of insurance or residence must be completed.' 57. O n a more general note, I would men- tion once again the freedom enjoyed by the

55. Although that provision requires the 35 — The Court held in Joined Cases 116/80, 117/80, 119/80, 120/80 and 121/80 Rijksdienst voor Werknemerspensioenen competent institution of a Member State to v Celestre [1981] ECR 1737, paragraph 13, that: 'Regulation N o 574/72 ... contains in Articles 15 and 46 provisions gov- which application is made for a pension to erning the overlapping of periods of insurance completed extend the reference period for the grant of under the legislation of two or more Member States. Con- 5cquendy, it ts not permissible for the institution of a Mem- that pension if the person concerned has ber State to apply national rules for the aggregation and apportionment of periods of insurance which are less benefited from periods of insurance or resi- favourable to the worker than those contained in the regu- dence in another Member State where that lation'.

N e i t h e r Article 15(l)(f) of C o u n c i l Regulation ( E E C ) N o 574/72 of 21 M a r c h 1972 l a y i n g d o w n the p r o c e d u r e for i m p l e m e n t i n g R e g u l a t i o n ( E E C ) N o 1408/71 o n t h e application of social security schemes t o e m p l o y e d p e r s o n s , t o self-employed p e r s o n s and t o m e m b e r s of t h e i r families m o v i n g w i t h i n t h e C o m m u n i t y , n o r A r t i c l e 9a of C o u n c i l R e g u l a t i o n ( E E C ) N o 1 4 0 8 / 7 1 , as i n t r o d u c e d w i t h r e t r o s p e c - tive effect b y C o u n c i l R e g u l a t i o n ( E E C ) N o 2332/89 of 18 J u l y 1989, n o r Articles 48(2) a n d 51 of t h e E C T r e a t y p r e c l u d e the refusal b y a M e m b e r State (in this case t h e Italian R e p u b l i c ) t o t a k e i n t o account t h e p e r i o d d u r i n g w h i c h a w o r k e r w h o applies for t h e grant of a n invalidity p e n s i o n d r e w u n e m p l o y m e n t benefit in a n o t h e r M e m b e r State (in this case G e r m a n y ) as a g r o u n d for p r o l o n g i n g t h e refer- ence p e r i o d for t h e g r a n t of t h e pension applied for, w h e r e t h a t g r o u n d for p r o - l o n g a t i o n exists u n d e r t h e legislation of the s e c o n d M e m b e r State b u t n o t u n d e r its o w n legislation.

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