JUDGMENT OF 15. 3. 1978 — CASE 126/77 FRANGIAMORE v OFFICE NATIONAL DE L'EMPLOI

In Case 126/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Belgian Cour de Cassation for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber) Composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Summary of the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

(a). If the legislation applicable requires the completion of periods of insurance Article 67 (1) provides two possibilities.

(b). If, on the other hand, the legislation applicable requires the completion of periods of employment Article 67 (2) permits the aggregation of periods of insurance or employment without repeating, with regard to periods of employment, the condition imposed by Article 67 (1) in fine.

III —. Oral procedure

1. By a judgment of 19 September 1977, which was received at the Court on 24 October 1977, the Belgian Cour de Cassation submitted to the Court of Justice under Article 177 of the EEC Treaty a question on the interpretation of Article 67 (1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2. Article 67 of Regulation No 1408/71, which concerns the position with regard to aggregation of periods for the acquisition of the right to unemployment benefits, states at paragraph (1):

3. Pursuant to Article 1 (r) of the regulation the words insurance periods mean contribution periods or periods of employment as defined or recognized as insurance periods by the legislation under which they were completed ….

4. The question submitted by the Belgian Cour de Cassation asks whether the condition laid down in Article 67 (1) in fine applies even if the relevant period of employment is counted as an insurance period under the legislation of the Member Sute in which it was completed.

5. The extent of the right conferred by Article 67 (1) on a migrant worker to require the competent institution of a Member State to aggregate periods of insurance or employment which he has completed under the legislation of another Member Sute varies in accordance with the nature of the periods in question.

6. In fact that provision permits the aggregation, on the one hand, of insurance periods within the meaning of Article 1 (r) and, on the other hand, of ordinary periods of employment defined or recognized as such in a Member State other than that in which the competent institution is established.

7. In the latter case the wording of Article 67 (1) indicates that periods of employment shall be aggregated only if they would have been counted as insurance periods had they been completed under the legislation of the competent State.

8. On the other hand, that condition does not apply to the aggregation of insurance periods within the meaning of Article 1 (r) of the regulation.

9. Furthermore, it is clear from Article 1 (r) of the regulation that, in order to ascertain whether a period of employment may be assimilated to a period of insurance for the purposes of the application of the rule concerning aggregation set out in Article 67 (1), reference must be made to the legislation under which such period was completed.

10. It is thus apparent from the foregoing considerations that a period of employment completed under the legislation of a Member State other than that in which the competent institution is established, and defined or recognized as an insurance period under that legislation, is not subject to the condition laid down in Article 67 (1) in fine of Regulation No 1408/71.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

12. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

On those grounds, THE COURT (Second Chamber) in answer to the question submitted to it by the Belgian Cour de Cassation by judgment of 19 September 1977, hereby rules: