OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 2 MARCH 1977 (*1)

Mr President,

Members of the Court

Under Belgian law, workers may, subject to their paying the appropriate contributions, acquire the right under the general scheme of retirement insurance for employed persons to assimilate periods spent in study to periods of employment. Those concerned may avail themselves of this right, under Article 3 (4) of the Royal Decree of 24 October 1967, with effect from 1 January of the year in which they attain the age of 20. Under Article 7 of the Royal Decree of 21 December 1967 (amended by the Royal Decree of 3 December 1970), however, the basic condition for such assimilation is proof that the claimant immediately after study took up an occupation falling within the terms of the Royal Decree No 50 of 24 October 1967 on retirement insurance for employed persons. In the event of assimilation each year of study is taken into account on the basis of the first occupation pursued after study. For the payment of contributions the requirement is that for years of study begun before 1 September 1954 lump-sum payments are made. For years of study begun after 31 August 1954 the contribution is calculated according to the employed person's share of the contribution for pensions insurance under the scheme to which the claimant was subject by reason of the abovementioned first occupation. The rate of contribution is that in force at the beginning of the year of study and it is based on the pay during the first twelve months of the first occupation after studies.

The applicant in the main action, who was born on 12 April 1931 and is of Belgian nationality, sought to avail himself of these provisions.

His career took the following form. He studied engineering in Belgium from 1950 to 1954 and in France from 1954 to 31 August 1956.

Thereafter he did his military service in Belgium. From 3 February 1958 to 31 August 1960 he was gainfully employed in France. From 1 September 1960 to 31 August 1963 he resided in the United States to study there. Then he worked again in France from January 1964 to 30 November 1965. Since 1971, after working in the USA from 1966 to 1970, he has been working in Belgium as an engineer.

His claim to assimilation of the periods of study from 1 January 1951 to 31 August 1956 and from 1 September 1960 to 31 August 1963 was however rejected by the competent Belgian insurance institution, the Office national des pensions pour travailleurs salariés in Brussels, on the ground that after completing his studies he did not immediately pursue an occupation in Belgium to which the Belgian legislation on retirement insurance for employed persons was applicable.

The plaintiff appealed against the rejection of his claim to the Labour Court, Charleroi on the ground that he must be considered an employed person ‘moving within the Community’ within the meaning of Regulation No 1408/71 and that consequently Article 9 (2) of that regulation, which reads as follows, was applicable:

‘Where, under the legislation of a Member State, admission to voluntary or optional insurance is conditional upon completion of insurance periods, any such periods completed under the legislation of another Member State shall be taken into account, to the extent required, as if they were completed under the legislation of the first State.’

From this it follows that the periods of insurance completed in France immediately after his studies, that is to say, the periods from 3 February 1958 to 31 August 1965 and from 1 January 1964 to 30 November 1965 in respect of which contributions to the French social security insurance were paid, should be taken into account as periods of insurance completed in Belgium.

On the question of the applicability of rules from Community law, the interpretation of which did not appear to be wholly clear to the Labour Court, that court stayed proceedings and referred two questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty. These are:

1.Is the condition laid down by Article 7 (1) (i) of the Belgian Royal Decree of 21 December 1967 on the general regulation of the retirement and survival pensions scheme for employed persons and consisting in the obligation on the part of an employed person who wishes to regularize his periods of study to prove that he exercised, immediately after such periods, a professional or trade activity such as to bring into application the Belgian Royal Decree No 50 of 24 October 1967, concerning the same pensions, affected by Article 9 (2) of European Economic Community Regulation No 1408/71, as being a clause under which admission to voluntary or optional continued insurance is made conditional upon the obligation to complete an insurance period, or by any other provision of a European regulation?

2.If question No 1 is answered in the negative, can the employed person of Belgian nationality claim either equality of treatment under Article 3 (1) of Regulation No 1408/71, or to have taken into consideration the insurance period completed in France as though it had been completed under Belgian legislation under Article 45 (1) of the same regulation, that is, for the acquisition, retention or recovery of the right to benefits of old-age and death insurance (pensions), or under any other provision of Community law?

My observations on these questions are as follows.

I must first point out that the interpretation of the regulations on social security for migrant workers in the case-law of the Court has proceeded on the basis that the principle of freedom of movement is of primary importance. It is obvious however that the condition applicable under Belgian law for the assimilation of periods of study, requiring that the claimant shall immediately after completing his studies have been subject to Belgian social insurance, is an obstacle to freedom of movement. It compels anyone who does not want to renounce entitlement to insurance in respect of his period of study, to take up an occupation in Belgium immediately after such period, in other words, to renounce the right to take work in another Member State and that is certainly a matter of freedom of movement. This must be borne in mind in looking at the question whether the deduction cannot be made from Community law that gainful and insurable employment in another Member State immediately after completion of studies is sufficient to allow the buying in for insurance of periods of study. Moreover, contrary to the view of the representative of the Commission, it is not possible to distinguish periods of study completed within the Community from other periods completed outside it. For it is obvious that acceptance of the restrictive Belgian condition in relation to periods of study completed outside the Community substantially limits the operation of the principle of freedom of movement since anyone who has completed periods of study in a third State would suffer a restriction on his freedom to decide whether to take up an occupation in Belgium or in another Member State.

Reference to Article 45 (1) of Regulation No 1408/71 is of little assistance for solving the problem before us. As we know this reads:

‘An institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of insurance periods shall take into account, to the extent necessary, insurance periods completed under the legislation of any Member State as though they had been completed under the legislation which it administers.’

Here, as is clear from the wording, the point at issue is the aggregation of insurance periods with reference to the acquisition, retention or recovery of the right to benefits, but the question whether a specific period may be regarded as an insurance period is not dealt with.

Since there are no special coordinating provisions in Community law for a case like the present, possibly Article 9 (2) of Regulation No 1408/71 which I have already quoted could have a bearing on the issue.

On this two questions may properly be asked:

1.Is the assimilation of periods of study under Belgian law a matter of voluntary insurance or at least something closely akin to it?

2.Does Article 9 apply only to voluntary insurance in respect of periods after compulsory insurance or does it cover periods before as well?

As to the first question it is noteworthy that Regulation No 1408/71 contains no definition of the concept of ‘voluntary insurance’. Accordingly on the basis of the ordinary meaning of this concept, so far as it can be deduced from legal writings and national legislations, one of its features could be the freedom to opt for insurance in respect of periods not covered by compulsory insurance. The Commission has covered this point in its reference to a definition to be found on page 328 of ‘Securité Social’ by Dupeyroux and in its reference to Article 1 of the Belgian Law on voluntary insurance of 12 February 1963. I must say that a case such as the present at least comes close to this. On the one hand the assimilation of periods of study is dependent upon their being bought in and the person concerned is left free to decide whether to buy them in. On the other hand there is clearly no compulsory retirement insurance for students, because in Belgium students do not come under social insurance at all and in France, according to the Commission's statements, they are insured only for sickness and maternity. As against this I would not accept as valid the objection of the defendant in the main action that under Belgian law the assimilation of periods of study leads to their being put on a par with insurance periods, when there is a special provision for voluntary insurance which, as regards conditions and consequences, especially entitlement to benefits and payment of contributions, has nothing to do with the assimilation of periods of study. If we approach it from the aspect of the voluntary decision to buy in periods of insurance — and this is all-important — then we must assimilate to this the inclusion in the calculation of periods of study. A broad interpretation of the concept of ‘voluntary insurance’, which covers both kinds of Belgian insurance, must moreover be favoured because Article 9 of Regulation No 1408/71 may only be applied in a way which helps to extend as far as possible recognition of the principle of freedom of movement for workers.

As regards the second question the essential point is that Article 9 does not specify whether in the matter of voluntary insurance, as against compulsory insurance, account must be taken of past or future periods. All that can be deduced from Article 9 is that claimants at the time of making their claim must already have been workers subject to social insurance in the relevant State. As to this, reference must be made to Article 9 (1). Again the reference to the provisions concerning aggregation are of interest as is also what can be gathered from the rules applicable to workers from other Member States, as set out in the French Law on voluntary insurance of 10 July 1965 (Annex V to Regulation No 1408/71).

On the other hand if it may be inferred from Article 1 (a) (iii) of Regulation No 1408/71 that a worker is ‘any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Regulation, under a social security scheme of a Member State for employed persons … if such person has previously been compulsorily insured for the same contingency under a scheme for employed persons of the same Member State’, then the Commission is perfectly correct in saying that it is not the intention of this provision to narrow the concept of ‘voluntary insurance’; its purpose is rather to define workers as persons covered by compulsory insurance. Nor is anything decisive to be gained from a comparison with the provisions of Article 13 (2) (d) dealing with periods of service in the armed forces for the interpretation of Article 9 because the fact that it mentions insurance periods before entry into such service and also after release therefrom, does not lead to the conclusion that under Article 9, which is silent on the point, periods before compulsory insurance are not taken into account.

So, having regard to the basic concepts, which I mentioned at the outset, governing the interpretation of the regulation, I would think that Article 9 completely covers the case of voluntary buying in of insurance periods.

Accordingly it appears in all that the Commission's view is correct: that the deduction can be drawn from Article 9 of Regulation No 1408/71 that the requirements of Belgian law are complied with if a first occupation covered by compulsory insurance is taken up after study in another Member State. This can indeed give rise to certain difficulties of application for the Belgian insurance institution because, as the Commission has pointed out, it has to take into account the necessary contributions having regard to French law and the French earnings of the claimant. There should however be no insuperable difficulties, certainly none such as to justify disregarding the principle of freedom of movement.

I suggest therefore that the questions asked by the Labour Court, Charleroi, should be answered as follows:

National rules which allow periods of study to be assimilated to periods of employment by payment of voluntary contributions must be regarded as provisions concerning voluntary insurance within the meaning of Article 9, to which Article 9 (2) is applicable.

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(*1) Translated from the German.