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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gottardo (Free movement of persons) [2002] EUECJ C-55/00 (15 January 2002) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C5500.html Cite as: [2002] EUECJ C-55/00, [2002] EUECJ C-55/, [2002] ECR I-413 |
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JUDGMENT OF THE COURT
15 January 2002 (1)
(Reference for a preliminary ruling - Articles 12 EC and 39(2) EC - Old-age benefits - Social security convention concluded between the Italian Republic and the Swiss Confederation - Refusal to take account of periods of insurance completed by a French national in Switzerland)
In Case C-55/00,
REFERENCE to the Court under Article 234 EC by the Tribunale ordinario di Roma (Italy) for a preliminary ruling in the proceedings pending before that court between
Elide Gottardo
and
Istituto nazionale della previdenza sociale (INPS)
on the interpretation of Articles 12 EC and 39(2) EC,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, F. Macken and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón, M. Wathelet, V. Skouris, J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
- Mrs Gottardo, by R. Ciancaglini and M. Rossi, avvocatesse,
- the Istituto nazionale della previdenza sociale (INPS), by C. De Angelis and M. Di Lullo, avvocati,
- the Italian Government, by U. Leanza, acting as Agent, assisted by D. Del Gaizo, avvocato dello Stato,
- the Austrian Government, by C. Pesendorfer, acting as Agent,
- the Commission of the European Communities, by P. Hillenkamp, E. Traversa and N. Yerrel, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Gottardo, the Istituto nazionale della previdenza sociale (INPS), the Italian Government and the Commission at the hearing on 6 March 2001,
after hearing the Opinion of the Advocate General at the sitting on 5 April 2001,
gives the following
Community law
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.
2. ...
3. Save as provided in Annex III, the provisions of social security conventions which remain in force pursuant to Article 7(2)(c) and the provisions of conventions concluded pursuant to Article 8(1) shall apply to all persons to whom this Regulation applies.
For the purposes of this Regulation:
...
(j) legislation means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2) or those special non-contributory benefits covered by Article 4(2a).
...
(k) social security convention means any bilateral or multilateral instrument which binds or will bind two or more Member States exclusively, and any other multilateral instrument which binds or will bind at least two Member States and one or more other States in the field of social security, for all or part of the branches and schemes set out in Article 4(1) and (2), together with agreements, of whatever kind, concluded pursuant to the said instruments.
National legislation
This Convention shall apply:
(a) In Switzerland:
...
(b) In Italy:
(i) to legislation on invalidity insurance, old-age insurance and survivors' insurance, including the special schemes replacing the general scheme for specified categories of workers;
....
Where, solely on the basis of periods of insurance and periods treated as such completed in accordance with Italian legislation, an insured person is unable to enforce a right to an invalidity benefit, an old-age benefit or a death benefit under the terms of that legislation, periods completed under Swiss old-age insurance and survivors' insurance (periods of contribution and periods so treated) shall be aggregated with periods completed under Italian insurance in order to create entitlement to those benefits, in so far as those periods do not overlap.
In the case where an insured person is unable to enforce a right to benefits even in the light of the preceding subparagraph, periods of insurance completed in third countries linked to both Switzerland and Italy by social security conventions relating to old-age insurance, survivors' insurance and invalidity insurance shall also be aggregated.
The dispute in the main proceedings and the question submitted
[Is] a worker who is a citizen of a Member State with a record of payments of social security contributions to the competent institution of another Member State ... entitled to be awarded an old-age pension on the basis of aggregation of the contributions paid to the institution of a State outside the Union under the convention which the Member State has concluded with the latter and which it applies to its own citizens[?]
Findings of the Court
The principle of equal treatment provided for by the Treaty
The existence of objective justification
Costs
40. The costs incurred by the Italian and Austrian Governments and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the question referred to it by the Tribunale ordinario di Roma by order of 1 February 2000, hereby rules:
The competent social security authorities of one Member State are required, pursuant to their Community obligations under Article 39 EC, to take account, for purposes of acquiring the right to old-age benefits, of periods of insurance completed in a non-member country by a national of a second Member State in circumstances where, under identical conditions of contribution, those competent authorities will take into account such periods where they have been completed by nationals of the first Member State pursuant to a bilateral international convention concluded between that Member State and the non-member country.
Rodríguez Iglesias
Gulmann
Sevón
Cunha RodriguesTimmermans
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Delivered in open court in Luxembourg on 15 January 2002.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: Italian.