Opinion of the Advocate General — ECLI:EU:C:2009:109
Date: 2009-02-19
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Freedom of movement for persons – Workers – Equal treatment – Social security for migrant workers – Invalidity benefits (Art. 39 EC; Council Regulation No 1408/71, Art. 40(3)(b)) Article 39 EC must be interpreted as precluding application by the competent authorities of a Member State of national legislation which, in accordance with Article 40(3)(b) of Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, makes acquisition of the right to invalidity benefits subject to the condition that a period of primary incapacity of one year has elapsed, where such application has the result that a migrant worker has paid into the social security scheme of that Member State contributions on which there is no return and is therefore at a disadvantage by comparison with a non-migrant worker. Application of such national legislation by the competent authorities is contrary to Community law, given that, firstly, it places a worker at a disadvantage in relation to those who are in the same situation of definitive incapacity to work but who have not exercised their right of freedom of movement and, secondly, it results in payment of social contributions on which there is no return. (see paras 46, 50, operative part)