(C) — · 76/82 · GlobalLawDB

(C) —The Commission recalls the clear and precise interpretation of Article 48 (1) which was given by the Court in its judgment of 20 November 1975 in Case 49/75 Camilla Bore lia v Landesversichemngsanstalt Schwaben [1975] ECR 1461. At paragraph 5 of that judgment the Court declared that: “Under the actual terms of Article 48 (1) the latter only applies where two conditions are fulfilled, that is, first, that ‘the total length of insurance periods ... does not amount to one year’ and, secondly, under the legislation of that Member State ‘no right to benefits is acquired by virtue only of those periods’. It follows that this article cannot be applied where the right to benefits of a migrant worker ... already arises solely from the provisions of the legislation of the Member State in question.”It is undisputed, and the court making the reference emphasized that point in its observations and in the preliminary question, that under Belgian law residence does not constitute a condition for the acquisition of a right to benefits or for qualification for that purpose.In the context of Article 48(1) the concept of periods of residence refers only to those periods the completion of which is a condition for the grant of benefits or enables qualification for that purpose to be acquired. In so far as a period of residence cannot perform that function under Belgian law, there is therefore no need to take account of it for the purpose of applying Article 48 (1).Moreover the wording of Article 48 (1) is perfectly clear. The Commission suggests that the following reply should be given to the question referred to the Court by the Tribunal du Travail:“For the purpose of applying Article 48 (1) of Regulation No 1408/71, account is to be taken of the length of residence in a Member Sute only where the legislation of that State makes entitlement to benefits subject to the completion of periods of residence. Where, under the legislation of a Member State which makes the right to benefits subject to the completion of insurance periods, such a right is acquired on the basis solely of the insurance periods completed under that legislation, the institution of that Member Sute is bound to grant benefits, even if the length of those periods is less than one year.”