C-108/75
ECLI:EU:C:1976:38
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JUDGMENT OF 9. 3. 1976 — CASE 108/75
In Case 108/75
Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du travail of Brussels for a preliminary ruling in the action pending before that court between
GIOVANNI BALSAMO, residing at 21 Corso Don Minzoni, Asti (Italy) and
INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ, 211 Avenue de Tervuren, Woluwé Saint-Pierre,
on the interpretation of Article 28 (1) (f) and (g) of Regulation No 3 of the Council of 25 September 1958 (JO No 30 of 16. 12. 1958, p. 574), Article 30 (1) of Regulation No 4 of the Council of 3. 12. 1958 (JO No 30 of 16. 12. 1958, p. 611), Article 49 of Regulation No 1408/71 of the Council of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416) and Article 36 (1) of Regulation No 574/72 of the Council of 21 March 1972 (OJ English Special Edition 1972 (I), p. 173),
THE COURT
composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, M. Sørensen and Lord Mackenzie Stuart, Judges,
Advocate-General: G. Reischl
Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The judgment making the reference and I — Facts and procedure the written observations submitted under Article 20 of the Protocol on the Statute Mr Giovanni Balsamo of Italian of the Court of Justice of the EEC may nationality, after working as a miner in be summarized as follows: Belgium from 1946 to 1958, worked in
BALSAMO v INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ
Italy as an employed person until 31 According to Mr Balsamo, the defendant October 1968. in the main action could very well, after his claim had been sent on 10 June On 26 October 1968, that is, five days 1970, have determined the right to the before that date, he claimed an invalidity Belgian pension as from 1 November pension from the INPS (Istituto 1968, especially as the Conseil medical Nazionale della Previdenza Sociale) in his de l'invalidité which comes under the place of residence and on 10 June 1970 Institut national d'assurance maladie- the INPS, after granting him the invalidité, has acknowledged his in proportional part of the Italian pension, capacity to work for the period from 31 sent his file to the competent bodies in October 1968 to 31 March 1976, the date Belgium so that he should be granted the on which he will have a right to an proportional part of the Belgian pension old-age pension. applicable to miners and assimilated workers. The Tribunal du travail, considering that By a decision of 8 October 1974, the the proceedings raised a question of interpretation of Community law, by a Belgian institution dismissed this claim relying on the fact that Mr Balsamo had judgment of 6 October 1975, registered not, when he submitted his claim to the at the Court of Justice on 13 October INPS on 26 October 1968, ceased all 1975, asked the Court of Justice to give a work, a condition to which Article 56 (1) ruling on 'How, precisely, must Article of the Belgian Law of 9 August 1973 28 (1) (f) and (g) of Regulation No 3 and Article 49 of Regulation No 1408/71 of subjected the grant of benefits. the Council of the European Economic That provision is worded as follows: Community be interpreted so as to 'A worker who has ceased all work and establish whether the application of these articles requires that a fresh claim for a whose injuries and functional dis pension be submitted each time ac turbances are accepted as causing a cording to the procedure laid down in reduction in his earning capacity at a rate Article 30 (1) of Regulation No 4 and equal to or less than one third of what a Article 36 (1) of Regulation No 574/72 of person in the same circumstances of life the Council of the European Economic and having the same duties could earn by Community'. his work in the group of occupations which includes the occupation in which The Court, on hearing the report of the the person concerned was engaged at the Judge-Rapporteur and the views of the time when he became incapable of Advocate-General, decided that it was not working or in the various occupations in necessary to hold any preparatory which he has or could have been inquiry. engaged in consequence of his vocational Mr Balsamo, the Institut national training, shall be recognized as incapable d'assurance maladie-invalidité and the of working within the meaning of the Commission submitted their written present law.' observations.
Mr Balsamo appealed against that decision of rejection to the Tribunal du II — Observations submitted travail of Brussels. under Article 20 of the Protocol on the Statute of He claimed in particular that he had ceased all work on 31 October 1968, and the Court of Justice of the that he was seeking the payment of the EEC
proportion of the Belgian pension only Observations of Mr Balsamo as from 1 November 1968, that is to say, as from the time when the conditions Mr Balsamo considers that the Belgian laid down by the Law were fulfilled. institution should have granted him an
JUDGMENT OF 9. 3. 1976 — CASE 108/75
invalidity pension as from 1 November 'The application of Articles 28 (1) (f) and 1968, the date on which he had ceased (g) of Regulation No 3 and Article 49 of all work. If, in accordance with Article 28 Regulation No 1408/71 of the Council (1) (a) of Regulation No 3 he had to does not require a new claim to be made satisfy the basic conditions laid down by on each occasion in accordance with the the Belgian legislation in order to be procedures laid down in Article 30 (1) of entitled to an invalidity pension, that is, Regulation No 4 and Article 36 (1) of in particular, to cease working, it could Regulation No 574/72. not be required of him that he should satisfy this condition at the time of It is sufficient that the competent making his claim for a pension in Italy, institutions should give all necessary since the legislation of that Member State information with a view to fixing the does not make the lodging of a claim commencement of payment of benefits subordinate to that condition. In these as from the date on which the conditions circumstances to require that at the time for entitlement required by either system of ceasing work he should make a second are fulfilled.' and new claim, would be equivalent to requiring a formality which is prescribed Observations of the INAMI neither by the Italian law applicable under Article 30 (1) of Regulation No 4 The INAMI considers that the Belgian nor even by Belgian law, because Belgian institution, on receiving the claim for legislation on sickness and invalidity Belgian benefits, could not reject it on insurance does not in fact provide for the the basis of Article 56 (1) of the Law of 9 formality of making a claim for an August 1963, because according to the invalidity pension. As to the Italian wording of Article 28 (1) (a) of Regulation legislation, which is applicable under No 3 it had to consider the claim
Article 30 (1) of Regulation No 4, it does in accordance with Belgian legislation, not make the acceptance of a claim for a taking account of the situation existing at pension subject to ceasing all work. the time of the making of the claim. It is at the time when the matter is The INAMI maintains that under Article referred to it by the transmission of the 28 (1) (f) the insured person remains, in file, which is done by the institution of the present case, entitled to payment by the place of residence, that the Belgian the Italian insurance institution alone institution will check whether the person until the moment when, having ceased concerned is still working or has ceased work and being capable of being entitled all work on a particular date. If it appears to the Belgian invalidity benefits, he that the claimant has ceased all work, the made a new claim. Belgian institution must determine the right to a pension as from the date of A formal requirement such as making cessation of work. Furthermore, the the claim in accordance with the rules of provisions of Article 28 (1) (f) and (g) of the country of permanent residence Regulation No 3 and of Article 49 (2) of cannot adversely affect the fundamental Regulation No 1408/71 enable the condition of entitlement which is divergencies existing between the constituted by the fact of having to call Belgian and Italian legislation to be upon benefits when there is incapacity overcome since they authorize a new calculation of the benefits as and when for work, expressed by ceasing work, and only in that case. the conditions required by another legal system are satisfied. The defendant in the main action
Mr Balsamo suggests the following maintains that it would be the same answer to the question asked by the within the framework of Regulations Nos Tribunal du travail of Brussels: 1408/71 and 574/72 which replaced
BALSAMO v INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ
Regulations Nos 3 and 4. The insured institutions concerned. The action taken
person who on the date of his first claim by the Belgian authorities is therefore does not satisfy a fundamental condition erroneous: it applies 'to a situation of the Belgian legislation must, if he is to unconnected with Belgian law, rules laid satisfy that condition, make another down within the context of that law. claim for benefit.
In accordance with the Italian legislation, Observations of the Commission the right was acquired on the first day of the month which followed the claim made by the person concerned, that is, As regards Article 28 (1) (f) and (g), the on 1 November 1968. Until this time the Commission considers that this provision worker could, according to the Italian is not applicable to the situation in which Mr Balsamo finds himself. In fact legislation, carry on working. Certainly as from 1 November 1968 the worker that article refers to an automatic revision satisfied the basic conditions laid down of a benefit, paid solely under the by the Belgian law, since he fulfilled the legislation of the Member State where conditions of incapacity for work and of the right to benefit is acquired, when the ceasing to work. conditions required by either legislative system to which the worker was subject prove to be satisfied, whereas they were Although it must be accepted that a not at the time when the right was worker subject to the legislation of acquired under the first legislative another Member State, and not ben system. efiting from a sickness allowance, must satisfy the basic conditions laid down by the Belgian legislation for the payment That provision does not therefore refer to of primary incapacity allowances, it the Belgian benefit: at the time when the would be going too far to treat the right was acquired under the Italian worker as if he were claiming the legislation (1 November 1968) the primary incapacity allowances, when he conditions required by the Belgian is claiming an invalidity pension. The legislation to be entitled to invalidity conclusion must therefore be reached benefits had been fulfilled. Further, the that to the extent to which the Belgian automatic revision prescribed under (d) legislation does not prescribe formalities can apparently be made by the Italian for claiming an invalidity pension, the institution only in respect of the Italian latter is validly 'claimed' as soon as it is benefit, the only one already to have made in accordance with the procedures been paid. specified by the legislation of the country of permanent residence. Article 30 (1) of Regulation No 4 provides that the claim for benefit must be addressed 'to the institution of the The Commission proposes the following reply to the question raised by the place of permanent residence in ac Tribunal du travail of Brussels: cordance with the procedures specified by the legislation of the country of permanent residence'. It follows from 'When an invalidity pension is granted this that as soon as a claim is made in automatically under the legislation of a accordance with the procedure in force Member State without the beneficiary's in the country of permanent residence, having submitted a claim to the the procedures provided for by the competent institution, a claim made to legislation of other Member States are that institution through the institution of deemed to be fulfilled and the pension the worker's country of permanent claim is validly made to each of the residence in accordance with the
JUDGMENT OF 9. 3. 1976 — CASE 108/75
procedures specified by the legislation of During the hearing on 27 January 1976, the latter country and in accordance with Mr Balsamo represented by Mr Rossini, Article 30 (1) of Regulation No 4, takes Director of the Patronato ACLI effect as from the time when all the basic (Associazioni Cristiani Lavoratori conditions laid down by the legislation of Italiani), the Institut national d'assurance the first country for the grant of the maladie-invalidité, represented by Mr invalidity pension are met, even if these Masquelin, Advocate at the Cour d'appel conditions are not all satisfied at the time of Brussels and the Commission of the
of the making of the claim. European Communities, represented by its Agent, Miss Jonczy, developed the The observations concerning the above arguments set out during the written mentioned provisions of Regulation No procedure. 3 and Regulation No 4 apply equally to the corresponding provisions of The Advocate-General delivered his
Regulation No 1408/71 and Regulation opinion at the hearing on 17 February No 574/72.' 1976.
Law
1 By a judgment of 6 October 1975, received at the Court Registry on the 13th day of the same month, the Tribunal du travail of Brussels referred, pursuant to Article 177 of the EEC Treaty, to the Court a question concerning the interpretation of Article 28 (1) (f) and (g) of Regulation No 3 of the Council of 25 September 1958 (JO No 30 of 16. 12. 1958, p. 574), Article 30 (1) of Regulation No 4 of the Council of 3 December 1958 (JO No 30 of 16. 12. 1958, p. 611), Article 49 of Regulation No 1408/71 of the Council of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416) and Article 36 (1) of Regulation No 574/72 of the Council of 21 March 1972 (OJ English Special Edition 1972 (I), p. 173) 'so as to establish whether the application of these articles requires that a fresh claim for a pension be submitted each time according to the procedure laid down in Article 30 (1) of Regulation No 4 and Article 36 (1) of Regulation No 574/72'.
2 The main action concerns a worker of Italian nationality who worked as an employed person first in Belgium and then in Italy and who, in accordance with Article 30 (1) of Regulation No 4, which was in force at the time, made a claim for an invalidity pension from the Italian institution of his place of permanent residence although — as Italian legislation permits — he had not yet ceased work.
3 The answer to the question raised must enable the national court to decide the question whether, in order to be able to claim the proportional part of the
BALSAMO v INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ
pension which he receives because of his work in Belgium, the person concerned must, because of the fact that Belgian legislation makes the grant of an invalidity pension subject to the prior cessation of all work, make a second claim after he has ceased work.
(1) The interpretation of Article 28 (1) (f) and (g) of Regulation No 3 and of Article 30 (1) of Regulation No 4
4 According to paragraph (1) (f) of Article 28, which is applicable to invalidity benefits under Article 26 of the same regulation, if a person concerned does not at a given date satisfy the conditions required by all the legislative systems applicable to him, but satisfies the conditions of one of them without need of recourse to periods completed under one or more of the other legislative systems, the amount of the benefit shall be determined solely in accordance with the legislation under which the right is acquired and taking account only of the periods completed under that legislation.
5 In that case, in accordance with subparagraph (g) of the same paragraph, the benefits already paid shall be reviewed in accordance with the provisions of paragraph (1) (b), as and when the conditions required by one or more of the other legislative systems are satisfied, taking account of the aggregation of periods mentioned in Article 27 of Regulation No 3.
6 These provisions, subject to the compatibility of subparagraph (g) with Article 51 of the Treaty, refer exclusively to the possible alteration of a benefit granted in one Member State on the basis of national legislation alone in a case where the conditions for the grant of benefits laid down by the legislation of another Member State in which the person concerned has completed periods are satisfied later.
7 They do not therefore concern the calculation or the conditions for the grant of this second benefit and are irrelevant to the situation referred to by the national court.
8 According to Article 30 (1) of Regulation No 4, in order to receive benefits under Articles 26 to 28 of Regulation No 3, the worker shall be required to make his claim to the institution of the place of permanent residence in accordance with the procedure specified by the legislation of the country of permanent residence.
JUDGMENT OF 9. 3. 1976 — CASE 108/75
9 That provision was laid down with the aim of simplifying administration in order to exempt migrant workers, who have rights to assert in different Member States, from the requirement to lodge with the institutions in each of these States an application for the grant of the benefits which they may claim.
10 For the same purposes Articles 31 to 34 govern the manner in which the institution of the place of permanent residence deals with the file on the application, confirms the accuracy of the information provided by the person concerned, and then sends a form giving the information necessary for proving the rights of the said person concerned to the competent institutions of the other Member States in which insurance periods have been completed, the transmission of this form being equivalent to transmission of supporting documents.
11 It follows from these provisions that all the conditions of form concerning the making of an application, in respect of all the Member States in which periods of insurance or assimilated periods have been completed, are satisfied as soon as the application is properly made in accordance with the procedure laid down by the legislation of the country of permanent residence.
12 The institutions of the other Member States, which are subsequently vested with authority to deal with the case, therefore no longer have to decide on the question whether and in what manner they must be so vested, but have to decide only whether and at what time, in view of the information which has been given to them or that which they are authorized to call for by way of supplementary information, the worker fulfils the fundamental conditions necessary to be able to claim the advantage of the benefit in question.
13 The requirement of a prior cessation of work amounts to such a fundamental condition.
14 If, therefore, it appears from the form prescribed by Article 33, from the documents which accompany it or from information gathered by the institution of the Member State in which the worker concerned has
completed periods, that the latter satisfies this condition at the latest when that institution, given authority to deal with the matter by the transmission of the file, makes a decision, the said institution is in all respects in a position to apply, as from the date of cessation of work, the provisions of its national legislation which govern the right to benefit.
BALSAMO v INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ
15 It is necessary therefore to reply that when a migrant worker has made a claim for invalidity benefits to the institution of the place of his permanent residence and in accordance with the procedure specified by the legislation of the said place, he has no need to make a new claim in another Member State even if at the time of the making of his claim he did not yet satisfy all the fundamental conditions required by the legislation of the second State for the grant of the benefit.
(2) The interpretation of Article 49 of Regulation No 1408/71 and of Article 36 (1) of Regulation No 574/72
16 The considerations which apply for the purposes of the interpretation of Article 28 of Regulation No 3 apply in the same manner for the purposes of the interpretation of Article 49 of Regulation No 1408/71 which, too, refers in essence to the possible alteration of a benefit already granted on the basis of national legislation alone, as and when the conditions required by other legislations to which the person concerned has been subject, are satisfied.
17 The interpretation given to Article 30 of Regulation No 4 as regards the making of a new claim for a pension is equally valid in respect of Article 36 (1) of Regulation No 574/72.
18 In fact the substitution of the words 'in accordance with the procedure provided for by the legislation administered by that institution' for the words 'in accordance with the procedure specified by the legislation of the country of permanent residence' used in Article 30 of Regulation No 4 has no bearing on the necessity for making a new claim.
Costs
19 The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.
20 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
JUDGMENT OF 9. 3. 1976 — CASE 108/75
On those grounds,
THE COURT
in answer to the question referred to it by the Tribunal du travail of Brussels, in its judgment of 6 October 1975, hereby rules:
1. Article 28 (1) (f) and (g) of Regulation No 3, subject to the compatibility of subparagraph (g) with Article 51 of the Treaty, as well as Article 49 of Regulation No 1408/71, refer exclusively to a possible alteration of a benefit granted in one Member State on the basis of national legislation alone, in a case where the conditions for the grant of benefits obtained through the legislation of another Member State in which the person concerned has completed periods are satisfied later. These provisions do not therefore concern the calculation or the conditions for the grant of these later benefits.
2. When a migrant worker has made a claim for invalidity benefit to the institution of the place of his permanent residence and in accordance with the procedure specified by the legislation of the said place, as prescribed by Article 30 (1) of Regulation No 4, or specified by the legislation applied by that institution, as is prescribed by Article 36 (1) of Regulation No 574/72, there is no need to make a new claim in another Member State even if, at the time of the making of his claim he did not yet satisfy all the fundamental conditions required by the legislation of the second State for a grant of the benefit.
Lecourt Kutscher O'Keeffe
Donner Mertens de Wilmars Sørensen Mackenzie Stuart
Delivered in open court in Luxembourg on 9 March 1976.
A. Van Houtte R. Lecourt
Registrar President