The Queen v A National Insurance Commissioner, ex parte Christine Margaret Warry (41/77)

B —Observations of the Commission

The Commission, in its observations, points out that the United Kingdom legislation is of Type A, while that of the Federal Republic of Germany is of Type B. Accordingly Article 40 (1) of Regulation 1408/71 applies. Chapter 3 of the regulation, which is to be applied by analogy, states that an award in respect of a claim for benefit must be made having regard to all the legislations to which the worker has been subject. Regard needs therefore to be paid to the legislation of both the Federal Republic of Germany and the United Kingdom.Article 45 in its original form referred to ‘insurance periods’. As amended on the accession of the three new Member States and by Regulation (EEC) No 2864/72 of the Council, it refers also to ‘periods of residence’, which expression, under the provisions of Article 1 (s) (a) of Regulation (EEC) No 1408/71 means periods of residence as defined or recognized as such by the legislation under which they were completed or deemed to have been completed. These amendments were made to give effect to the Danish social security legislation.Three cases decided by the Court may be of assistance in answering the questions asked. In Case 2/72, Salvatore Murru ([1972] ECR 333), the Court held that in order to determine to what extent a period of unemployment is to be assimilated to a period of employment, regard must be had to the legislation under which the period was accomplished. In Case 33/75, Galati ([1975] ECR 1323), Mr Advocate General Reischl expressed the view that the term ‘insurance periods’ is clearly dependent on the legal system under which the periods were completed and the determining factor is whether that legal system recognizes them as insurance periods. The third case is D'Amico, referred to by the insurance officer.In the view of the Commission Article 51 of the Treaty does not prohibit a rule of national law which requires as a condition of entitlement to a social security benefit either formalities as to the manner and time of claiming the benefit or the existence of a factual situation as to previous entitlement to benefit. In D'Amico's case the compatibility of a condition that the claimant should have been unemployed in the Member State in question was not questioned and its compatibility with Regulation No 1408/71 was affirmed by the Court.For Article 45 of the regulation to relate to legislation containing conditions of the type cited it would be sufficient that the law of the Member State concerned recognized that the condition related to an insurance period or periods of residence for account to be taken of other such periods recognized as such by one or more other Member States. For Article 46 to apply, however, there must be entitlement to benefit, either without reference to Article 45 or by virtue of it.The Commission proposes that the questions referred by the High Court should be answered as follows:1. The provisions of Article 51 of the EEC Treaty do not preclude the legislation of a Member State from making the acquisition of a right to invalidity benefit conditional upon the person concerned having been entitled to sickness benefit under that legislation for a total of 168 days in the immediately preceding period, that condition being subject to, so far as material, (a) the completion of insurance periods, (b) the making of a claim therefor in a prescribed manner and within a prescribed time.2. The provisions of Article 45 and 46 of Regulation (EEC) No 1408/71 relate to such legislation where the law of that Member State recognizes such conditions as making benefit depend upon insurance periods or periods of residence and there are such periods completed under the legislation of other Member States to be taken into account.3. Article 45 of Regulation (EEC) No 1408/71 enables such a condition to be treated as satisfied to the extent to which the conditions are treated as conditions making the benefit depend upon insurance periods or periods of residence and such periods completed under the legislation of other Member States are taken into account.At the hearing on 27 September 1977 the insurance officer, represented by Mr Woolf, and the Commission of the European Communities, represented by its Agent, Mr Allen, presented oral submissions.The Advocate General delivered his opinion at the hearing on 18 October 1977.