Official Journal of the European Union

(Case C-3/08)

(Reference for a preliminary ruling - Social security schemes - Invalidity benefits - Regulation (EEC) No 1408/71 - Article 40(3) - Different benefit schemes in the Member States - Disadvantages for migrant workers - Contributions on which there is no return)

2009/C 282/11

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Ketty Leyman

Defendant: Institut national d’assurance maladie-invalidité (INAMI)

Re:

Reference for a preliminary ruling — Tribunal du travail de Nivelles (Belgium) — Lawfulness, in the light of Article 18 EC, of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 149, p. 2) as amended — Invalidity allowance — Obstacle to the exercise of free movement as a result of the existence of different indemnification schemes

Operative part of the judgment

Article 39 EC must be interpreted as precluding application by the competent authorities of a Member State of national legislation which, in accordance with Article 40(3)(b) 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, makes acquisition of the right to invalidity benefits subject to the condition that a period of primary incapacity of one year has elapsed, where such application has the result that a migrant worker has paid into the social security scheme of that Member State contributions on which there is no return and is therefore at a disadvantage by comparison with a non-migrant worker.

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(1) OJ C 79, 29.3.2008.