C-32/70

In Case 32/70

Reference to the Court under Article 177 of the EEC Treaty by the Commission de réclamation de Liège en matière d'Assurance Obligatoire contre la Maladie et l'Invalidité for a preliminary ruling in the action pending before that court between

Union Nationale des Mutualités Socialistes, Brussels,

and

Stéphanie Cacciatore, née La Marca, 1, Quai Sainte-Barbe, Liège,

1 — Language of the Case: French.

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure All these benefits were paid to her by virtue of the Belgian Law of 9 August 1963 1. From 27 August 1965 to 24 April 1967 (Pasinomie belge, Volume II, p. 1067) which Mrs Stéphanie Cacciatore, née La Marca, provides for three types of allowances for worked in the Federal Republic of Germany incapacity for work: and from 27 April 1967 to 6 May 1967 she worked in Belgium. She finished work on — a primary incapacity allowance for 12 that date because of illness and she received months from the beginning of the in­ from the Union Nationale des Mutualités capacity for work; Socialistes (hereinafter referred to as 'the UNMS'): — an extended incapacity allowance, as from the thirteenth month following the — for 12 months, the benefits in respect period of primary incapacity and for a of primary incapacity for work. In order period of two years ; to enable these benefits to be paid the — an invalidity allowance thereafter. Under Belgian institution had to apply the the Law of 27 June 1969 (Pasinomie aggregation provided for by Article 17 belge, May-June 1969, p. 698) the last of Regulation No 3 of the EEC; allowance replaces the extended in­ capacity allowance so that from the end — from the thirteenth month until 29 of the first year of illness the worker September 1969, benefits in respect of receives an invalidity allowance. extended incapacity amounting to Bf. 63 738. On 8 January 1969 Mrs Cacciatore asked

MUTUALITÉS SOCIALISTES ν LA MARCA

Rheinprovinz. Moreover on 22 June 1969, sufficient insurance periods?' the INAMI informed the UNMS that Mrs Cacciatore was entitled to the benefits 2. The order making the reference was re in respect of primary incapacity but could ceived at the Court Registry on 3 July 1970. not receive, the benefits in respect of ex The Commission of the European Com tended incapacity or invalidity. In support munities submitted written observations in of this conclusion it relied on Article 146 accordance with Article 20 of the Protocol of the Law of 9 August 1963 and Article on the Statute of the Court of Justice. 28 (2) of Regulation No 4 of the EEC. Upon hearing the report of the Judge- On 13 November 1969 the German authori Rapporteur and the views of the Advocate- ties informed the INAMI of their decision, General the Court decided not to hold a which was that Mrs Cacciatore could not preparatory inquiry. be recognized as an invalid under German The Commission and the INAMI, an law as she had insufficient insurance intervening party in the main action, periods. submitted their oral observations at the Since it could not therefore recover from hearing on 21 October 1970. the amounts which might be paid by the The Advocate-General delivered his opinion German authorities the extended incapacity on 11 November 1970. allowance which had been paid to Mrs Cacciatore, the INAMI asked the UNMS on 12 December 1969 to recover the money II — Observations submitted under from the insured directly and also notified Article 20 of the Protocol on Mrs Cacciatore that she had no right to the Statute of the Court of an invalidity pension from the Belgian Justice

Article 177 of the EEC Treaty: 'Are the provisions of Article 28 (2) of The INAMI maintains that since the Regulation No 4 applicable to a worker insurance periods completed by Mrs subject to Type A legislation in one Cacciatore in Belgium do not amount to Member State, who acquires in that State six months the provisions of Article 28 (2) (in the present case, Belgium) the right of Regulation No 4 do not allow her to to sickness and invalidity insurance receive invalidity benefits.

JUDGMENT OF 1. 12. 1970 — CASE 32/70

ences between the two systems. The main apply. This also means that if the conditions reason was the fact that the part of the set out in this article are not all satisfied benefits in respect of extended incapacity then the general rules as to aggregation and invalidity paid by the INAMI that in Article 51 of the EEC Treaty, imple was refunded by the Belgian State was mented in respect of invalidity by Articles different for the two periods. Moreover the 26, 27 and 28 of Regulation No 3, would extended incapacity scheme was regarded be applicable. In this case, since Mrs as coming under that relating to invalidity Cacciatore only worked in Belgium for so that the Law of 27 June 1969 which eight days, that is, a period which Belgian abolished as from that date the first period law regards as insufficient to give rise to a did not make any real change in substance. right to benefit, the precise question is The INAMI further observes that there are whether the first sentence of Article 28 (2) no grounds to interpret Article 146 of the of Regulation No 4 is applicable to her. Law of 9 August 1963 on which, in con This is not possible here because even by junction with Regulation No 4 (Article the aggregation of the period completed in 28 (2)), its refusal to grant the allowance Belgium with that completed in Germany in question is based. It is a provision of the total period would not be sufficient to domestic law and as such its interpretation give Mrs Cacciatore the right to benefits is hot within the jurisdiction of the Court in Germany. Consequently, as the compen of Justice. sation mentioned above does not apply it must follow that Article 28 (2) of Regu lation No 4 is not applicable in this case B — Written observations submitted by the and that the invalidity benefits payable to

Such an examination period, however small, the abovementioned appears to the Commission to be admissible article provides that these periods shall be in the present case. It bases its argument taken into account by the 'other Member on the decided cases of the Court relating States' in order to determine the amount to subparagraph (a) of the second paragraph for accounting purposes. The fraction of of Article 177 of the Treaty. the amount for accounting purposes which The Commission recalls the provisions makes up the amount actually to be paid of the Law of 9 August 1963 establishing does not always include these periods in three kinds of allowance for incapacity for

MUTUALITÉS SOCIALISTES ν LA MARCIA

allowance and the extended incapacity are concerned. In this regard it recalls allowance and observes that in this case that at Strasbourg, in the Council of Mrs Cacciatore received the 'primary Europe, Community regulations were never incapacity' allowance under Article 17 of regarded as international conventions and Regulation No 3 but may not receive the it does not accept that this article, which extended incapacity allowance. There is a constitutes an exception to the general rule, 'strange' (étrange) distinction between the can be applicable outside international two periods, that of primary incapacity conventions stricto sensu. In addition this and that of extended incapacity, which article provides for different treatment for seems to be because the Belgian institution national workers and for those covered by links the extended incapacity allowance to international conventions. Since the case invalidity allowances and not to sickness in point does in fact involve a worker allowances by virtue of Article 146 of the from another Member State the application Law of 9 August 1963 which is as follows: to her of the abovementioned Article 146(2) 'The provisions of this law shall not would be contrary to Regulations Nos 3 prejudice the provisions of international and 4 of the Council implementing Article social security conventions in force in 51 of the EEC Treaty the aim of which is Belgium. For the purposes of the to guarantee to all nationals of Member application of the provisions of these States equality of treatment under the conventions the extended incapacity different national laws and the benefit allowance shall be regarded as an in­ of social security payments whatever their validity allowance.' place of work or place of permanent The Commission takes the view that the residence. fact that the article refers to the application The Commission concludes that a negative of international conventions means that it answer must be given to the question does not apply where Community regula- referred by the Belgian court.

3 Regulation No 4 provides implementing procedures and supplementary provisions in respect of Regulation No 3 concerning social security for migrant workers.

4 According to the terms of the heading of Chapter 2 in which it appears, Article 28 (2) of Regulation No 4 is concerned with the implementation of the provisions of Articles 26 to 28 of Regulation No 3 which were issued in application of Article 51 of the Treaty.

5 It is therefore in this context and taking account of the principles contained in these provisions that Article 28 (2) must be interpreted.

6 Apart from the instance given in Article 25, Article 26 of Regulation No 3 extends to incapacitated migrant workers the benefit of aggregation of insurance periods and assimilated periods provided by Article 51 of the Treaty and by Articles 27 and 28 of the said regulation for the acquisition, maintenance or recovery of pensions for old-age and death.

7 Article 28 (2) of Regulation No 4 lays down the detailed rules of application of Articles 26 to 28 of Regulation No 3 in the particular case in which the insurance periods and assimilated periods, completed under the legislation of one Member State, do not together total six months.

8 The aim of the provision is, by preventing the institutions paying the benefits from having to incur expenses of calculation and transmission greater than the benefits themselves, to simplify the application of the aggregation mechanism in particular in view of the very small proportionate amounts payable in respect of those periods.

13 Therefore the provisions of Article 28 (2) of Regulation No 4 are not applicable to a worker subject to Type A legislation in one Member State who acquires in that State (in the present case, Belgium) the right to sickness and invalidity insurance benefits by relying on insurance periods completed in another Member State in accordance with the provisions of Articles 16 and 17 of Regulation No 3, and who subsequently becomes incapacitated before completing six months' work in the State in which he is subject to Type A legislation, when no benefits can be granted by the other Member State (in this case the Federal Republic of Germany) for lack of sufficient insurance periods.

Costs

14 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable.

15 As these proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Commission de réclamation de Liège, the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur;

Lecourt Donner Trabucchi

Monaco Mertens de Wilmars

Delivered in open court in Luxembourg on 1 December 1970.

A. Van Houtte R. Lecourt

Registrar President