OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 28 OCTOBER 1982 ( 1 )

Mr President,

Members of the Court,

1. The principal facts

Mr Malfitano, who lives in Italy, worked in Belgium in 1955 and 1956 as a miner. He was insured there in that capacity against sickness and invalidity. The court of reference, the Tribunal du Travail [Labour Tribunal], Charleroi, calculates the number of days of insurance completed during that period as 233.

Admittedly, that number appears to be not wholly uncontested, but it is not disputed that the total number of days of insurance amounts to less than one year. The Koninklijke Besluit [Royal Decree] of 21 December 1963 provides that an insurance year is to be equivalent to 312 days. After 1956 Mr Malfitano worked in Germany and later returned to Italy, where according to the information supplied by the Institut National d'Assurance Maladie-Invalidité [National Sickness and Invalidity Insurance Institution (hereinafter referred to as“the Belgian Institution”)] he was declared unfit for work on 1 January 1975. In 1971 Mr Malfitano applied to the Belgian Institution for an invalidity pension, which was refused by the institution in 1977. The institution based its refusal on Article 48 (1) of Regulation No 1408/71, stating that the duration of the insurance periods completed in Belgium was less than one year, so that under the applicable Belgian law there was no entitlement to a pension.

As a result of the action which was brought challenging that decision before the Tribunal du Travail, Charleroi, the following question was referred to the Court of Justice for a preliminary ruling:

“In view of the fact that Belgian legislation relating to compulsory insurance against sickness and invalidity does not make residence a sufficient condition for the grant of benefits or for qualification for that purpose, does Article 48 (1) of Regulation No 1408/71 mean that, where a period of insurance or residence in Belgium amounts to less than one year but entitlement to benefits is acquired by completion of the required qualifying period, the competent institution is bound to grant benefits in respect of the said period of insurance or residence?”

2. Article 48 (1) of Regulation No 1408/71

The relevant provision in Regulation No 1408/71 is as follows:

“1. Notwithstanding the provisions of Article 46 (2), if the total length of the periods of insurance or residence completed under the legislation of a Member State does not amount to one year and if under that legislation no right to benefit is acquired by virtue only of those periods, the institution of that State shall not be bound to award benefits in respect of such periods.”

The words “or residence” were included in the provision at the request of the Representatives to the Community of the United Kingdom, Ireland and Denmark (Official Journal 1972, L 73, p. 104). The origin of the addition lay in the fact that Denmark, and to a lesser extent the United Kingdom, used the criterion of residence. The concept of “periods of residence” is defined in Article 1 (s) (a). That is already sufficient to enable the conclusion to be drawn, in view of the fact that the Belgian legislation applies criteria other than “periods of residence”, that such a condition is not relevant in this case and whether or not it is met is of no significance as far as the interpretation of Article 48(1) is concerned.

A superficial reading of the provision in question might give the impression that if the insured period is less than one year then, as a rule, no entitlement to benefits can arise. Since Article 48 was based on consideration of administrative convenience such an interpretation is plausible in itself, as Mr Advocate General Reischl indicated in his opinion in Borella (Case 49/75 [1975] ECR 1461): Nevertheless; as Mr Reischl remarked even then, that interpretation is manifestly wrong. The wording of Article 48'(1) makes it quite clear that it merely creates an exception to Article 46 (2), that is to say, an exception to the rule of apportionment in Regulation No 1408/71. It is apparent from the second condition referred to in Article 48 (1)', moreover, that the exception applies only if there is no entitlement to benefits under the national legislation. If there is such entitlement, for instance because the period of less than a year is in fact sufficient to constitute a qualifying period, then Article 48 (1) is not applicable. That construction of Article 48 (1) was clearly adopted by the Court of Justice in paragraph 5 of the aforementioned decision. Moreover, the judgment in Case 55/81 (Vermaut [1982] ECR 649) confirmed that interpretationof the provision in question. In view of the fact that that interpretation of the provision is now firmly established the question which has been referred to the Court by the Tribunal du Travail; Charleroi, for a preliminary ruling must likewise be answered in the affirmative. However, the answer ought to be directed more clearly towards the specific point at issue than was the answer suggested by the Commission:

3. The relevant facts of the case

It is apparent from the wording of the question submitted by the Tribunal du Travail that it proceeded on the assumption in fact that under Belgian law there was an entitlement to benefits because the compulsory qualifying period was completed. However, it appears from the observations of the Belgian Institution that it challenged that assumption. In any case, the institution denies that there may still be an' entitlement to benefits under Belgian legislation when the person concerned has ceased to be insured in Belgium for a considerable time prior to the date when the' risk materialized. The argument advanced by the institution in support of that contention raises a point of Community law.

According to pages 4 and 6 of its observations the institution is endeavouring to show inter aita that, on the basis of the Belgian legislation in force in 1955 and 1956, it is now no longer possible in the circumstances of Mr Malfitano's case for any entitlement to arise under the 1963 Law. For the relevance of that argument, it relies on the French wording of Article 48 (1) which states “... si... aucun droit n'est acquis...” and not “... si... aucun droit n'a été' acquis...”. In the course of the oral procedure the Belgian Institution elucidated its viewpoint, with reference also to the written and oral observations submitted on behalf of Mr Malfitano. According to the institution, there is no longer any entitlement to' benefit in Belgium under the Law of 9' August 1963 in cases such as the present, since the person concerned was no longer insured in Belgium at the time at which he was declared unfit for work. As was correctly pointed out by Counsel for Mr Malfitano at the hearing, that view is not really compatible with the wording of Article 48 (1) of Regulation No 1408/71, however, as that provision must be construed in the light of Article 51 of the EEC Treaty. I think that is also what is implied in paragraphs 14 and 15 of the judgment of the Court in Vermaut (Case 55/81) and in the wording of Article 46(2) of Regulation No 1408/71. That provision lays clear obligations on each of the Member States to provide apportioned benefits under “the legislation^... to which the worker has been subject” (the emphasis is mine). The exception provided for in Article 48 (1) is therefore to be construed in a similar way when it speaks of “legislation”. Since that seems ultimately to be the point at issue in this dispute the Court's ruling should provide unambiguous directions as to the interpretation to be given to Article 48 (1).

4. Conclusion

I therefore suggest that the question which has been referred to the Court by the Tribunal du Travail, Charleroi, should be answered as follows:

“Article 48 (1) of Regulation No 1408/71 is to be interpreted as meaning that if a period of insurance or residence in the territory of a Member State is less than one year, but under national law entitlement to benefit has arisen by virtue of the shorter period — even though in the past — the competent institution is bound to grant benefits for that period.”

( 1 ) Translated from the Dutch