Opinion of the Advocate General — ECLI:EU:C:2001:631
Date: 2001-11-22
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: Austria

Summary of the Judgment 
1. Social security for migrant workers — Community rules — Persons covered — 
National of a Member State claiming, following an accident at work which occurred 
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SUMMARY — CASE C-290/00 
in another Member State before accession of the relevant State to the European Union, 
an occupational disability pension — Included 
(Council Regulation No 1408/71, Art. 94(2) and (3)) 
2. Social security for migrant workers — Equal treatment — Conditions governing 
acquisition of a right to an occupational disability pension resulting from an accident at 
work — National measure providing for an exception to the requirement of a 
qualifying period only in the event that the victim, at the time of the accident, had been 
insured under the legislation of the State concerned — Not permissible 
(EC Treaty, Art. 48(2) (now, after amendment, Art. 39(2) EC); Council Regulation 
No 1408/71, Art. 94(3)) 
3. Social security for migrant workers — Equal treatment — National measure setting a 
reference period for acquisition of the right to a pension — Possibility of extending the 
reference period — Exclusion of that possibility when the facts or circumstances 
giving entitlement, such as the payment of accident benefits, occur in another Member 
State — Not permissible — Invalidity of Article 9(a) of Regulation No 1408/71 
(EC Treaty, Arts 48(2) and 51 (now, after amendment, Arts 39(2) and 42 EC); Council 
Regulation No 1408/71, Art. 9(a)) 
1. The situation of a person who is a 
national of a Member State, who, 
before the accession of that State to 
the European Union, was employed in 
another Member State where he was 
the victim of an accident at work, and 
who, after the accession of his home 
State, applies to the authorities in that 
State for an occupational disability 
pension as a result of that accident 
falls within the scope of application of 
Regulation No 1408/71, as amended 
and updated by Regulation No 118/97. 
It follows from Article 94(2) of the 
Regulation that a Member State is not 
entitled to refuse to take into account 
periods of insurance completed in the 
territory of another Member State, for 
the purposes of establishment of a 
retirement pension, for the sole reason 
that they were completed before the 
entry into force of the Regulation in its 
regard. There is no doubt that an 
accident at work which occurred on 
the territory of a Member State before 
the entry into force of Regulation 
No 1408/71 in another Member State 
under whose legislation occupational 
disability benefits as a result of that 
accident are claimed, constitutes a 
'contingency' within the meaning of 
Article 94(3) of that regulation. 
(see paras 23, 25-26, 
operative part 1) 
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DUCHON 
2. Article 94(3) of Regulation No 1408/71, 
as amended and updated by Regulation 
No 118/97, read in conjunction with 
Article 48(2) of the Treaty (now, after 
amendment, Article 39(2) EC), must be 
interpreted as precluding a national 
measure which provides an exception 
to the requirement of a qualifying 
period as a condition for the acquisi­
tion of the right to an occupational 
disability pension where that disability 
is the result of an accident at work — 
which occurred, in the case in point, 
before the date of entry into force of 
that regulation in the Member State 
concerned — only in the event that the 
victim had been insured compulsorily 
or privately at the time of the accident 
under the legislation of that State, to 
the exclusion of the legislation of all 
other Member States. 
(see para. 36, operative part 2 ) 
3. Articles 48(2) and 51 of the Treaty 
(now, after amendment, Articles 39(2) 
and 42 EC) must be interpreted as 
meaning that they preclude a national 
provision which takes into account, for 
the purposes of prolongation of the 
reference period during which the 
qualifying period for the acquisition 
of the right to a pension must have 
been completed, only those periods 
during which the insured person 
received an occupational disability 
pension under a national accident 
insurance scheme, without providing 
for the possibility of a prolongation of 
that period where a benefit of such a 
kind was paid under the legislation of 
another Member State. Even if, for­
mally, legislation of that type applies 
without distinction as to nationality to 
all Community workers, who may 
accordingly, under the conditions 
which it lays down, benefit from the 
prolongation of the reference period, 
such legislation, in so far as it makes no 
provision for the possibility of prolon­
gation of the reference period where 
events or circumstances, such as the 
payment of accident benefits, cor­
responding to those which enable the 
period to be prolonged occur in 
another Member State, is liable to have 
a much greater adverse effect on 
migrant workers, since they above all, 
particularly in the case of invalidity, 
tend to return to their countries of 
origin. 
For the same reasons, Article 9a of 
Regulation 1408/71, as amended and 
updated by Regulation No 118/97, 
must be declared invalid in so far as it 
expressly excludes the possibility to 
take account, for the purposes of the 
extension of the reference period under 
the law of a Member State, periods in 
the course of which industrial accident 
allowances have been paid under the 
law of another Member State. 
(see paras 38-40, 3-4) 
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