C-35/74

2. Social security for migrant workers — Invalidity, old age and death — Benefits — Recoverable advance — Limitation — Application of national law (Council Regulation No 4, Article 34 (3))

1. Application by analogy of Articles 27 2. As Article 34 (3) is integrated with the and 28 of Regulation No 3 to the provisions of national social security cases referred to under Article 26 (1) laws and supplements them, any means that apportionment of benefits limitation or time limit which may may not be made unless it has been apply must, in the present state of the necessary, in order to give rise to law, be dictated by national social entitlement, to aggregate beforehand security law. the periods completed under different legislations.

In Case 35/74

Reference to the Court of Justice under Article 177 of the EEC Treaty by the Labour Court (Tribunal du Travail) of Mons for a preliminary ruling in the action pending before that court between

1 — Language of the Case: French.

JUDGMENT OF 12. 11. 1974 — CASE 35/74

THE COURT

composed of: R. Lecourt, President, C. Ó Dálaigh and A. J. Mackenzie Stuart (Rapporteur), Presidents of Chambers, A. M. Donner, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and M. Sørensen, Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

working; he was at that time subject to Under Belgian social security law the Belgian legislation and was insured with period of limitation is two years and the the Alliance Nationale des Mutualités action for recovery was met by the Chrétiennes, from whom he was in objection that it was time barred. The receipt of benefit until 31 December Institut National d'Assurance Maladie 1959. Invalidité thereupon made an application on 2 May 1973 to intervene before the On 1 January 1960, Mr Rzepa was granted a Belgian pension under the Labour Court of Mons, in which it special scheme for mineworkers. questions whether national law applies to the present case since the advances in It was only when application was made question were paid under Community for an invalidity pension under the law and not under Belgian legislation. special scheme for mineworkers that Mr Rzepa's case was brought to the notice By judgment of 2 May 1974 the Labour of the German organization, the Bundes- Court of Mons decided to stay knappschaft of Aachen. proceedings and referred the following questions to the Court for a preliminary Having been apprised of the German ruling: benefit payment, the Alliance Nationale des Mutualités Chrétiennes, from whom 1. What is the period of limitation for Mr Rzepa had, under Belgian legislation, actions under the law of the been in receipt of benefit for this same Community? period, took the view that it had paid 2. When does the period begin to run? Mr Rzepa in error the sum representing the proportion of benefit duly paid by 3. In what circumstances may the period the German organization. be interrupted?

JUDGMENT OF 12. 11. 1974 — CASE 35/74

established by the Court on the In his view, the term 'recoverable applicability of Articles 27 and 28 of advance' cannot be applied to a benefit Regulation No 3 and, particularly, the which was paid in respect of existing judgments in Cases 100/63 (Van der rights solely on the basis of periods Veen, [1964] E.C_R_ 565) and 140/73 of insurance completed under the (Mancuso, [1973] E.C_R_ 1449), to legislation of a Member State and when demonstrate that apportionment of the person concerned has not been benefits may only take place if, in order informed that the benefit is a provisional to give rise to entitlement, it has been

behalf. relevant Belgian legislation. Once the Finally, Mr Rzepa submits that the entitlement was acquired, without it Court should reply as follows to the being necessary to aggregate the periods questions referred by the Belgian Labour completed under different legislations, Court: there was no need to apportion the Where, at the time when first payment is benefits due after 1 January 1959. made, the person drawing benefit is not With regard to this question, the expressly informed that the benefits Commission concludes that the Belgian granted to him are of a provisional insurer ought not to have recalculated nature and liable, therefore, to be the benefit and that consequently, from reduced, and where the organization 1 January 1959 to 31 October 1959, the making the payment fails to ask the said insurer did not pay the insured competent institution of the other State recoverable advances under Article in good time to hold on its behalf all 34 (3) but benefits to which he was arrears up to an amount corresponding entitled by virtue of Belgian legislation to the recoverable advances, the and of Regulation No 3, as interpreted consequential overpayments create no by the Court. right to repayment.

MUTUALITÉS CHRÉTIENNES v RZEPA

separate claims against separate legislation were not involved and the institutions, against whom the insured conclusion accordingly drawn that there has directly enforceable rights under was no limitation, it still ought not to be both national law alone and national possible for the insurance organization law supplemented if necessary by the to move against the insured. It is nearly system for aggregating insured periods 15 years since payment of the last of the provided for under Article 51 of the benefits which could be the subject of Treaty: judgment in De Moor (Case recovery, and the paramount need for 2/67, Rec. 1967, p. 256). legal certainty does not allow an Called upon, in Hessische Knappschaft organization to defer exercising its right (Case 44/65, Rec. 1965, p. 1200), to of action indefinitely. interpret Article 52 of Regulation No 3, The Commission believes that the the Court declared that Article 52 'in no questions which have been put to the way modifies the conditions governing Court could be answered as follows: the creation and the limits of 'The benefits of which, before extra-contractual liability, which remains Regulation No 3 came into force, the subject solely to national law'. worker was in receipt solely under the

If this before the Regulation came into force, were not the case, the period of especially, in paragraph (3), the question limitation to be applied to an action for of benefits which had not yet been paid recovery, the time from which it runs, when the Regulation came into force and the circumstances in which the and, in paragraph (4), the right of period can be interrupted would be persons entitled to a pension to apply governed by the legislative provisions of for their pension to be reviewed on the the Member State concerned.' basis of the Regulation. Article 53 (5) provides as follows: 'As regards rights arising from the implementation of paragraphs (3) and III — Oral procedure (4) of this Article, the provisions laid down in the legislation of Member Fresh considerations were drawn to the States, respecting the extinction and attention of the Court at the hearing on limitation of claims shall not apply to 22 October 1974. the persons concerned . .

JUDGMENT OF 12. 11. 1974 — CASE 35/74

as Mr Rzepa became entitled to Belgian of any clear requirements in the old invalidity allowances without the need Regulations, Nos 3 and 4, enables the to aggregate the German periods of conclusion to be drawn that, on the insurance, Belgium cannot apply Articles subject of recovery of overpayments, the 27 and 28 of Regulation No 3 or rules and periods of limitation of apportion its benefits.' In these national legislations alone apply. circumstances, however, the Belgian The expression 'national legislations' benefit is reduced by the amount of must be understood as meaning the foreign benefits by virtue of Article 95 of provisions of social legislation dealing the Royal Constitutional Decree of 22 with that branch of social security in September 1955, which deals with which the obligation to pay benefits overlapping pensions. arose and not the provisions of ordinary law. Subject to this, the defendant For Mr Rzepa, Maître Rossini stresses expresses himself to be in agreement that the benefits described by the Belgian with the arguments developed by the institution as 'recoverable advances' are, Commission. in reality, benefits granted under the The oral observations of the national Belgian scheme since entitlement depended wholly upon the periods of Commission were submitted by Mlle insurance completed in Belgium. The M.-J. Jonczy. provisions of Article 111 (2) of The Advocate-General presented his Regulation No 574/72 and the absence opinion at the hearing on 23 October.

Law

1 By judgment of 2 May 1974, registered at the Court of Justice on 24 May 1974, the Labour Court of Mons, under Article 177 of the Treaty, referred questions concerning the limitation of an action for repayment of advances made under Article 34 (3) of Regulation No 4 of the Council (Official Journal 1958, p. 597).

7 In asking these questions the national court can be referring only to an action for repayment of sums paid pursuant to Article 34 (3) of Regulation No 4 of the Council and not to those paid under the provisions of national law.

8 Article 34 (3) provides as follows: 'Before determining the benefit in accordance with Articles 26 to 28 of the Regulation, and in cases which might lead to delay, the scrutineer institution shall make a recoverable advance, calculated on the basis of the amount of benefit which would be payable under the national legislation applied by the said institution, taking account of the provisions of the Regulation'.

9 Application by analogy of Articles 27 and 28 of Regulation No 3 to the cases referred to under. Article 26 (1) means that apportionment of benefits may not be made unless it has been necessary, in order to give rise to entitlement, to aggregate beforehand the periods completed under different legislations.

10 It follows that Article 34 (3) is applicable only in cases where prior aggregation is an essential condition of entitlement.

11 This position cannot, arise in a case concerning an invalidity benefit in a Member State with a type A invalidity insurance scheme, which does not take the length of completed periods into account.

12 In any case, as the system embodied in Regulations Nos 3 and 4 rests on mere coordination of national legislation in the field of social security and does not affect the rules on limitation laid down by such legislations, it was not absolutely necessary that these Regulations should lay down rules either on limitation or on time limits.

THE COURT

in answer to the questions referred to it by the Labour Court of Mons by order of that court dated 2 May 1974, hereby rules:

As Article 34 (3) of Regulation No 4 is integrated with the provisions of national social security laws and supplements them, payments made on this dual basis do not arise only by virtue of Community law, from which it follows that any limitation or time limit which may apply must, in the present state of the law, be dictated by national social security law.

Lecourt Ó Dálaigh Mackenzie Stuart Donner Monaco

Mertens de Wilmars Pescatore Kutscher Sørensen

Delivered in open court in Luxembourg on 12 November 1974.