Opinion of the Advocate General — ECLI:EU:C:1997:148
Date: 1997-03-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgmen t 
1. Social security for migrant workers — Invalidity allowance — Conditions for the grant of 
benefits — Legislation of a Member State prescribing a reference period for determining the 
minimum insurance requirement — Obligation to extend the reference period by periods of 
unemployment spent under the legislation of another Member State — None — Legislation of 
the other Member State allowing, unlike that of the first Member State, an extension where 
periods of unemployment have been spent on national territory 
(EC Treaty, Arts 48 to 51; Council ReguLtions Nos 1408/71, Art. 9a, and 574/72, 
Art. 15(l)(f)(ii)) 
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SUMMARY — CASE C-322/95 
2. Social security for migrant workers — Equal treatment — Legislation of a Member State tak­
ing into account, for the acquisition of entitlement to invalidity allowance, only periods of 
insurance against unemployment completed on national territory — Legislation having the 
effect of pUcing workers having worked in several Member States at a disadvantage — Not 
permitted — LegisUtion of a Member State not taking into account, for the purpose of cal-
adating the minimum insurance requirement, periods of insurance against unemployment 
completed under the legisUtion of another Member State, over and above those taken into 
account under its own legisUtion — Permissible 
(EC Treaty, Arts 48 to 51) 
1. Articles 48 to 51 of the Treaty, Article 9a 
of Regulation N o 1408/71 on the applica­
tion of social security schemes to 
employed persons, to self-employed per­
sons and to members of their families 
moving within the Community, and 
Article 15(l)(f)(ii) of Regulation No 
574/72 laying down the procedure for 
implementing Regulation (EEC) N o 
1408/71 must be interpreted as not 
requiring a Member State to extend the 
reference period laid down by its legisla­
tion for determining the minimum insur­
ance requirement for the grant of an 
invalidity benefit, by a period equivalent 
to periods of unemployment spent by the 
person concerned under the legislation of 
another Member State which, unlike that 
of the first Member State, allows such an 
extension where the periods of unem­
ployment are spent on national territory. 
2. Articles 48 to 51 of the Treaty preclude 
national legislation which takes into 
account for the purposes of acquisition of 
entitlement to invalidity allowance only 
such periods of insurance against unem­
ployment that were completed on 
national territory, to the exclusion of 
similar periods completed in the territory 
of other Member States. Such a require­
ment, which establishes a difference in 
treatment between workers who have not 
exercised their right to freedom of move­
ment and migrant workers, to the detri­
ment of the latter, must, in the absence of 
objective justification, be held to be dis­
criminatory and thus in breach of the 
fundamental rules of the Treaty which are 
designed to ensure freedom of movement 
for workers. 
However, Articles 48 to 51 of the Treaty 
do not preclude the legislation of a Mem­
ber State from refusing to take into 
account, for the purposes of calculating 
whether the minimum insurance require­
ment attaching to the grant of an invalid­
ity benefit is satisfied, periods of insur­
ance against unemployment completed 
during a given period preceding the con­
tingency insured against under the legisla­
tion of another Member State, over and 
above those which are taken into account 
by the legislation of the first Member 
State during that same period. 
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