C-173/78
ECLI:EU:C:1979:134
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JUDGMENT OF THE COURT OF 29 MAY 1979 1
Alberto Villano v Nordwestliche Eisen- und Stahl-Berufsgenossenschaft; Pasquale Barion v Tiefbau-Berufsgemossensclaaft (preliminary ruling requested by the Bundessozialgericht)
"Successive accidents at work"
Joined Cases 173 and 174/78
Social security for migrant workers — Accidents at work and occupational diseases — Assessment of degree of incapacity — Taking into consideration of accidents or diseases occurring subsequently under the legislation of another Member-State — Requirement — None
(Regulation No 3 of the Council, Art. 30 (1); Regulation No 1408/71 of the Council, Art. 61 (5))
Article 30 (1) of Regulation No 3 and if they had occurred under the legislation Article 61 (5) of Regulation No 1408/71 of the first Member State but do not merely require the competent institution require it to take into consideration also of a Member State to take into accidents or diseases which have consideration accidents or diseases which occurred subsequently under the have occurred previously under the legislation of another Member State. legislation of another Member State, as
In Joined Cases 173/78 and 174/78
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht (Federal Social Court) for a preliminary ruling in the actions pending before that court between
Alberto Villano , Lumezzane Pieve (Brescia)
1 — Language of the Case: German.
JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78
and
NORWESTLICHE EISEN- und STAHL-BERUFSGENOSSENSCHAFT (North-West Iron and Steel Employers Association for Social Insurance), Hanover (Case 173/78)
and
PASQUALE BARION, Matterello di Trento
and
TIEFBAU-BERUFSGENOSSENSCHAFT (Mine Engineering Employers Association for Social Insurance), Munich (Case 174/78),
on the interpretation of Article 30 (1) of Regulation No 3 of the Council of the European Economic Community of social security for migrant workers (Journal Officiel 1958, p. 561) and Article 61 (5) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).
THE COURT
composed of: J. Mertens de Wilmars, President of the First Chamber, Acting as President, Lord Mackenzie Stuart (President of the Second Chamber), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the following
VILLANO v NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT
JUDGMENT
Facts and Issues
The facts, the procedure and the written salary ("Vollrente") if a worker is observations submitted pursuant to completely disabled as a result of Article 20 of the Protocol on the Statute sustaining an accident at work and, if his of the Court of Justice of the EEC may capacity for work is reduced by at least be summarized as follows: 20% as a result of such an accident, for the granting of a proportional pension or partial pension ("Teilrente") corre sponding to the degree of incapacity. I — Facts and procedure According to the first sentence of Article 581 (3) the injured person whose 1. Article 30 (1) of Regulation No 3 of capacity for work has been reduced as a the Council of the EEC on social result of more than one accident at work security for migrant workers (Journal shall receive an invalidity pension in Officiel 1958, p. 561) and Article 61 (5) respect of each such accident, including of Regulation (EEC) No 1408/71 on the any which occurred previously, provided application of social security schemes to that the reduced capacity for work employed persons and their families caused by the individual accidents at moving within the Community (Official work amounts in the aggregate to not Journal, English Special Edition 1971 less than 20%. According to the second (II), p. 416) both lay down the rule that sentence of Article 581 (3) the effects of where the legislation of a Member State an accident at work are however only to expressly or by implication provides that be taken into consideration if they accidents at work or occupational caused a reduction in capacity for work diseases which have occurred or have af at least 10%. Under Article 548 of the been confirmed previously shall be taken RVO only accidents insured against into consideration in order to assess the under the RVO may be treated as degree of incapacity, the competent accidents at work within the meaning of institution of that State shall also take Article 581 (3) of the RVO. into consideration accidents at work or occupational diseases which have occurred or have been confirmed pre 3. In Case 173/78 the plaintiff in the main action, Mr Villano, an Italian viously under the legislation of another Member State, as if they had occurred or national resident in Italy, sustained an had been confirmed under the legislation accident at work on 6 September 1969 in which it administers. the Federal Republic of Germany. As a result of that accident the defendant in the main action paid the plaintiff as from 9 March 1970 a provisional pension 2. In the Federal Republic of Germany equivalent to 20% of the pension at the Article 581 (3) of the Reichsversiche full rate. That pension was discontinued rungsordnung (National Social Insurance at the end of November 1970 on the Regulations) (hereinafter referred to as ground that his degree of incapacity was "the RVO") (as amended by the UVNG less than the minimum of 20% pre of 30 April 1963 (BGBI. I, p. 241)) scribed by German law in order to sub provides for the granting of an invalidity stantiate a claim to receive an invalidity pension of two-thirds of the annual pension.
JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78
On 11 December 1970 the plaintiff In November 1955 that pension was sustained another accident at work in discontinued on the ground that, since Italy. The competent Italian social his condition had improved, the degree insurance institution, the Istituto of incapacity was then only 15%. Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (hereinafter referred On 5 April 1976 the plaintiff in the main action sustained another accident at to as "the INAIL"), granted him for that accident as from 13 February 1971 a work in Italy. The INAIL determined the pension calculated on the basis of a degree of incapacity at 14% and granted degree of incapacity for work of 17%. him an invalidity pension calculated accordingly. On 22 June 1972 the plaintiff applied to On 14 February 1973 the plaintiff in the the defendant for the regrant of a main action applied to the defendant for pension for the effects of the accident on the regrant of a pension for the effects of
6 September 1969. The defendant by its the accident of 14 September 1942. In decision of 28 August 1973 refused this the expert opinion of 31 July 1973, application on the grounds that the which was obtained at the request of the incapacity had not worsened substan defendant in the main action, the tially and that the plaintiffs capacity for reduced capacity for work caused by the work had not appreciably diminished. In accident on 14 September 1942 was an expert opinion of 9 July the reduction estimated at 15%. By its decision of 17 in the plaintiffs capacity for work was estimated at 0%. May 1974 the defendant refused the application for a regrant of the pension Since Mr Villano's action (before the by the plaintiff on the ground that the Socialgericht [Social Court] Hannover) reduction in capacity for work due to the and appeal (to the Landessozialgericht accidents at work sustained by the [District Social Court] Niedersachsen) plaintiff under German legislation was were unsuccessful he appealed upon a less than the requisite minimum of 20% point of law to the Bundessozialgericht under Article 581 (3) of the RVO. [Federal Social Court]. In support of his The Sozialgericht München before appeal his main submission was that which the plaintiff had taken action there would be a breach of the principle against the defendant's decision held that of freedom of movement for workers the latter, by refusing to take into enshrined in Article 51 of the Treaty if consideration the accident at work which the competent German institutions could occurred subsequently in Italy in order disregard accidents at work which to determine whether the degree of the occurred in the territory of the plaintiff's incapacity was in the aggregate Community simply because they did not at least equal to 20%, had failed to take occur within the immediate field of account of the provisions contained in application of the RVO. Article 61 (5) of Regulation (EEC) No 1408/71 of the Council and Article 72 of
4. In Case 174/78 the plaintiff in the Regulation (EEC) No 574/72 of the main action, Mr Barion, an Italian Council. In fact the Sozialgericht national resident in Italy, sustained an considered that those provisions were to accident at work in 1942 in territory be interpreted as meaning that the which at the time was part of the chronology of the various accidents was German Reich and is now part of the irrelevant when providing compensation Federal Republic of Germany. As a result for those accidents.
Therefore the of that accident the defendant in the Sozialgericht by its judgment of 10 main action granted him a pension March 1975 ordered the defendant to equivalent to 25% of the full pension. grant the plaintiff as from 1 February
VILLANO v NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT
1973 a pension calculated on the basis of 174/78 by the Commission of the a degree of invalidity of 15%. European Communities, represented by N. Koch, acting as Agent, and in Case On appeal by the defendant the 174/78 only by the plaintiff in the main Bayerisches Landessozialgericht by its action, represented by H. Niesel, of the judgment of 28 October 1975 annulled Munich Bar, and by the Italian the judgment of the Sozialgericht Government, represented by A. Maresca, München. The plaintiff appealed on a acting as Agent, assisted by F. Favara, point of law to the Bundessozialgericht. Avvocato dello Stato [State Advocate General].
5. The Bundessozialgericht before By order of 14 February 1979 the Court which the two cases were brought decided to join the two cases for the referred, by separate orders, the purpose of the oral procedure and of the following question to the Court for a pre final judgment. liminary ruling: After hearing the report of the Judge- "Does the defendant German social Rapporteur and the views of the Advocate General the Court decided to insurance institution according to Article 30 (1) of Regulation No 3 of the open the oral procedure without any Council of the European Economic preparatory inquiry. Community concerning social security for migrant workers and according to Article 61 (5) of Regulation (EEC) No 1408/71 of the Council of the European Communities on the application of social II — Written observations
security schemes to employed persons and their families moving within the For the plaintiff in the main action in Community have to take into Case 174/78 the fundamental question is consideration an accident at work whether an accident sustained in another sustained by the plaintiff which occurred Member State may be considered to be subsequently in Italy as if it had occurred an accident at work, within the meaning under German legislation, if the granting of German law. The answer to this of a pension to the plaintiff arising out of question must be in the affirmative in the a previous accident at work which light of Articles 48 to 51 of the EEC occurred under German legislation Treaty and the general principles laid depends upon the percentage of the down in Article 3 (equality of treatment) reduction in capacity for work caused by and Article 10 (waiving of residence both accidents at work amounting at clauses) of Regulation No 1408/71. least to the figure 20 (First sentence of Article 581 (3) of the Reichsversicherungs Article 61 (5) of Regulation No 1408/71 ordnung (National Social Insurance does not provide the solution to the Regulations))?" problem since that provision is only concerned with the assessment of the The two orders making a reference were degree of incapacity for work, whereas received at the Registry of the Court on the question which has arisen in the case 14 August 1978. in point is that of the entitlement to benefits to be provided under German In accordance with Article 20 of the insurance schemes for accidents at work. Protocol on the Statute of the Court of In this connexion there is a gap in the Justice of the EEC written observations Community provisions. That gap must be were submitted in Cases 173/78 and filled having regard to the objectives
JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78
which the EEC rules and the EEC Villano case the effects of the first Treaty seek to attain. Application by accident have been estimated at nil. analogy of Article 60 of Regulation No 1408/71 relating to aggravation of an occupational disease for which the The Italian Government states that benefit has been awarded is conceivable for this purpose since the legal situation Italian legislation, for the purpose of in the instant case is comparable to that assessing the total degree or incapacity which is present in the case of aggra for work (Article 80 et seq. of Decree No vation of an occupational disease.
An 1124 of 30 June 1965 of the President of analogy can also be drawn between the the Republic), expressly provides for accidents at work which were sustained present case and the taking into consideration of insurance periods previously to be taken into consideration. In the event, however, it does not look provided for by Article 45 of Regulation No 1408/71. as if the plaintiff Mr Barion can prevail upon the competent Italian institution to include in its assessment the previous
accident because that accident occurred at a date prior to 1 January 1959; the If the accident at work sustained in Italy Community provisions (the above- were not taken into consideration the mentioned Articles 30 (1) and 61 (5)) plaintiff would suffer from having been a seem to have supplemented and amended migrant worker. Taking the accident at the Italian national legislation but only work in Italy into consideration would within the limits as to time laid down by not lead to unjustified overlapping of Article 53 (1) of Regulation (EEC) No 3 benefits since the plaintiff is only asking of 1958. the defendant to compensate him for the degree of incapacity for work caused within the field of application of German
law. The rule laid down by Article 30 (1) of Regulation No 3 and Article 61 (5) of Regulation No 1408/71 is addressed solely to the competent institution of the Member State the legislation whereof has The Italian Government points out in the to be applied after the last of several first place that it is apparent from the accidents. It follows that, since in the order making the reference that Mr case in point the above-mentioned rule is Barion, the plaintiff in the main action in not intended to apply to the German Case 174/78, has suffered a twofold institution, the German court must apply reduction of his capacity for work, 15% its national legislation alone, by virtue of as a result of the accident in 1942 which which the later accident is treated as an falls within German legislation and 14% aggravation of the first accident. by reason of the accident in 1966 which is governed by Italian legislation.
It may therefore be considered that the effects of the first accident are greater than the The Italian Government, relying on the 10% required under Article 581 of the fact that the Community provision RVO and it may also be assumed that referred to above is "incomplete", Mr Barion has suffered in the aggregate submits that that provision is applicable a 29% reduction of his capacity for at the request of a worker who has work. This fact means that the Barion sustained an accident and who can opt case (Case 174/78) differs from the either for an assessment of the degree of Villano, case (Case 173/78) since in the incapacity for work in the aggregate or
VILLANO v NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT
for separate compensation for each has taken place. Moreover, several accident sustained in accordance with Community provisions relating to social the legislation of the Member States insurance point this way (for example, under which the various accidents Article 60 (1) (b) and (c) and (2) (b) of occurred. In any case Article 30 (1) of Regulation No 1408/71). Regulation No 3 and Article 61 (5) of Regulation No 1408/71 do not in fact automatically abolish or reduce the rights On the basis of the foregoing the Italian vested in employed persons as a result of Government suggests that the question accidents which have occurred or have
be answered in the following way: been confirmed previously under the legislation of other Member States. "Articles 30 (1) of Regulation No 3 of 1958 and 61 (5) of Regulation No 1408/71 must be interpreted as meaning The Community provisions contained in that the provisions contained in those the beforementioned Articles 30 (1) and two articles have in view solely the 61 (5) also appear for another reason to competent institution of the Member be incomplete. They protect the interests State under the legislation of which the of workers who have sustained accidents last accident (in chronological order) occurred or was confirmed, that it
by guaranteeing them that the degree of incapacity shall be assessed in the applies at the request of the worker who has sustained the accident and who can aggregate. However, nothing has been laid down concerning reimbursements decide that it be dealt with in the way between the competent institutions and indicated in Article 60 (1) (b) of Regu there is neither express waiver of any lation No 1408/71, and that, in any case, reimbursement nor a rule for lump sum it does not in fact automatically abolish compensation of all possible reim or reduce the rights vested in employed bursements. persons as a result of accidents sustained previously which occurred or were confirmed under the legislation of other Member States and that it is valid only if it is supplemented by the principle of It does not seem to be either fair or apportioning the cost of the benefits reasonable to impose upon the institution between the competent institutions of the several Member States under the competent to deal with the last accident (in chronological order) the economic legislation of which the various accidents occurred or were confirmed." burden of pensions which also provide compensation for degrees of incapacity caused by previous accidents which occurred under the legislation of other According to the Commission, which Member States, that is to say during submits the same legal argument in both periods of "employment" completed in cases, it must be borne in mind that the the above-mentioned Member States. aim of the Community legislature when Financial responsibility for each accident it adopted Article 30 (1) of Regulation at work must be borne by the economic No 3 and Article 61 (5) of Regulation system within the confines of which the No 1408/71 was to enact rules intended occupation producing resources and to make the institution competent to deal wealth has been carried on and in which with the last case giving rise to social the payment (and perhaps the retention) insurance take into consideration of contributions to social insurance funds previous accidents and diseases.
That
JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78
institution is best qualified to assess consideration accidents and occu accurately the aggregate incapacity in the pational diseases which have event of a succession of accidents at occurred previously in order to work or occupational diseases. determine the overall degree of incapactiy; it may not therefore This interpretation is confirmed by a determine that degree of incapacity declaration of the Council concerning by taking into consideration only the Article 61 (5) of Regulation No 1408/71 second accident at work or the which was made when the said regu second occupational disease." lation was adopted and is repeated in the minutes of the Council of 14 June 1971. The text of that declaration, which the In conclusion, the Commission suggests Commission produced in an additional that the question referred be answered as follows: written statement of its observations, reads as follows: "The social insurance institution of a "The Council confirms that: Member State which is competent to deal with an accident at work is obliged, — Article 61 (5) does not fall within the in order to assess the degree of rules against overlapping provided incapacity in accordance with Article 30 for in Article 12 (1) but is concerned (1) of Regulation No 3 and Article 61 with the assessment of incapacity; (5) of Regulation No 1408/71, to take — the object of that provision is to into consideration any accident at work ensure that accidents at work and which the insured person sustained pre occupational diseases which have viously in another Member State as if it occurred previously under the had occurred under the legislation of the legislation of a first Member State first Member State, where that are taken into consideration as if they legislation provides, expressly or by had occurred under the legislation of implication, that accidents at work which the second Member State, in which occurred or were confirmed previously must be taken into consideration." the institution must assess the degree of incapacity as a result of another accident or of another occupational disease. The institution of the second III — Oral Procedure State cannot reassess the situation concerning the first accident but must At the hearing on 27 March 1979 the accept the decision taken in the first Commission, represented by N. Koch, State; acting as Agent, presented oral argument. — moreover, this provision makes it obligatory for the institution of the The Advocate General delivered his second Member State to take into opinion at the hearing on 3 May 1979.
VILLANO v NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT
Decision
1 By separate orders of 28 June 1978, which were received at the Court Registry on 14 August 1978, the Bundessozialgericht submitted, pursuant to Article 177 of the EEC Treaty, the following preliminary question to the Court of Justice:
"Does the defendant German social insurance institution according to Article 30 (1) of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant workers and according to Article 61 (5) of Regulation (EEC) No 1408/71 of the Council of the European Communities on the application of social security schemes to employed persons and their families moving within the Community have to take into consideration an accident at work sustained by the plaintiff which occurred subsequently in Italy as if it had occurred under German legislation, if the granting of a pension to the plaintiff arising out of a previous accident at work which occurred under German legislation depends upon the percentage of the reduction in capacity for work caused by both accidents at work amounting at least to the figure 20 (First sentence of Article 581 (3) of the Reichsversicherungsordnung (National Social Insurance Regulations))?"
2 This question was raised in the context of two actions between, first, the Nordwestliche Eisen- und Stahl-Berufsgenossenschaft (Case 173/78) and, secondly, the Tiefbau-Berufsgenossenschaft, of Munich (Case 174/78) and workers of Italian nationality, the plaintiffs in the main actions, who both suffered accidents at work on the territory of the Federal Republic of Germany. After suffering further accidents at work, this time in Italy, both workers requested the insurance institutions, the defendants in the main actions, to take the said accidents into consideration for the purposes of establishing whether the conditions prescribed by German legislation for the award of a pension in respect of accidents have been fulfilled.
3 Article 30 (1) of Regulation No 3 and Article 61 (5) of Regulation No 1408/71 both provide that where the legislation of a Member State expressly or by implication provides that accidents at work or occupational diseases which have occurred or which have been confirmed previously shall be taken into consideration in order to assess the degree of incapacity, the competent institution of that State shall also take into consideration accidents at work or occupational diseases which have occurred or have been confirmed pre-
JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78
viously under the legislation of another Member State, as if they had occurred or had been confirmed under the legislation which it administers. Accordingly, those two provisions merely require the competent institution to take into consideration accidents or diseases which have occurred previously under the legislation of another Member State and not those which have occurred subsequently.
4 The plaintiffs in the main actions nevertheless maintain that it is necessary to extend by analogy the rule laid down in the said provisions to accidents or diseases occurring subsequently under the legislation of another Member State, having regard to the objectives of Articles 48 to 51 of the EEC Treaty and to the general principles on which Regulations Nos 3 and 1408/71 are based. According to the plaintiffs in the main actions the competent institutions are obliged to take into consideration not only accidents or diseases which have occurred previously under the legislation of another Member State, as is laid down in the provisions in question, but also those which occur subsequently.
5 It is however impossible to accept that argument.
6 The provisions in question, when they require the institution which is competent in the most recent instance to take into consideration accidents or diseases which have occurred previously under the legislation of another Member State as if they had occurred or been confirmed under the legislation which the said institution administers, are concerned to ensure that an employed person who has suffered one or more accidents or diseases in another Member State obtains treatment equal to that provided for a worker who is in the same position and who has not left the Member State in question. Those provisions thus give sufficient effect to the basic principles set out in Articles 48 to 51 of the EEC Treaty.
7 The answer to the question submitted must therefore be that Article 30 (1) of Regulation No 3 and Article 61 (5) of Regulation No 1408/71 do not require the competent institution of a Member State to take into consideration accidents or diseases which have occurred subsequently under the legislation of another Member State, as if they had occurred under the legislation of the first Member State.
VILLANO v NORDWESTUCHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT
Costs
8 The costs incurred by the Italian Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.
9 As these proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the proceedings pending before the national court, costs are a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Bundessozialgericht, by separate orders of 28 June 1978, hereby rules:
Article 30 (1) of Regulation No 3 and Article 61 (5) of Regulation No 1408/71 do not require the competent institution of a Member State to take into consideration accidents or diseases which have occurred sub sequently under the legislation of another Member State, as if they had occurred under the legislation of the first Member State.
Mertens de Wilmars Mackenzie Stuart Pescatore
Sørensen O'Keeffe Bosco Touffait
Delivered in open court in Luxembourg on 29 May 1979.
A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber
Acting as President