C-79/81
ECLI:EU:C:1982:106
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JUDGMENT OF 23. 3. 1982 — CASE 79/81
to unemployment benefit depends on unemployment benefit on the ground his fitness for work and such fitness that he is in receipt in another for work has been accepted by the Member State of an aggregated and competent authorities of the said apportioned invalidity pension deter- Member State, those authorities may mined in accordance with Community not refuse the worker in question rules.
In Case 79/81
REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour du Travail [Labour Court], Mons, for a preliminary ruling in the action pending before that court between
MARGHERITA BACCINI
and
OFFICE NATIONAL DE L'EMPLOI [National Employment Office]
on the interpretation of Regulation N o 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community and Regulation N o 574/72 fixing the procedure for implementing Regulation No 1408/71 and, in the alternative, on the validity of Regulation No 1408/71 having regard to Article 51 of the Treaty,
THE COURT
composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart. A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judge*.
Advocate General: P. VerLoren van Themaat Registrar: P. Heim
gives the following
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JUDGMENT
Facts and Issues
The facts of the case, the course of the the Italian institution granted Mrs procedure and the submissions and Baccini an apportioned Iulian invalidity arguments of the parties may be pension the amount of which was summarized as follows: calculated after the Italian and Belgian insurance periods had been aggregated. That pension was paid as from 1 August I — F a c t s and w r i t t e n p r o c e d u r e 1974.
Mrs Baccini, an Italian national, worked On 25 April 1975 a report of a medical in Italy and then in Belgium. As from examination carried out in Belgium 5 July 1973 she received an invalidity declared that Mrs Baccini's degree of allowance in Belgium. incapacity was less than 66%. Consequently Mrs Baccini was held to be On 6 September 1974 the competent fit to resume work in Belgium as from Belgian institution, the Institut d'Assu- 28 April 1975. She was subsequently rances Maladie-Invalidité [National admitted once again to the invalidity Sickness and Invalidity Insurance scheme. Institution, hereinafter referred to as "the Belgian institution"] sent to the By a letter dated 23 June 1977 the Istituto Nazionale delle Previdenza Belgian institution informed Mrs Baccini Sociale [National Social Welfare that by virtue of Article 70 (2) of the Institution, hereinafter referred to as Belgian Law of 9 August 1963 the "the Italian institution"] the coordinating Belgian invalidity allowance would be forms with a view to determining Mrs reduced by the amount of the Italian Baccini's pension rights in Italy in invalidity pension. accordance with the provisions of Chapter 3 of Title IV of Regulation No On 23 June 1977 the Belgian institution 574/72 of the Council fixing the informed the Italian institution that Mrs procedure for implementing Regulation Baccini's incapacity for work was not No 1408/71 on the application of social permanent and that the Belgian auth- security schemes to employed persons orities had determined that it would end and their families moving within the on 31 October 1977. Community. As, according to the Belgian doctor, her After receiving the forms and having degree of incapacity had once more regard to the terms of Article 40 (3) of become less than 66% Mrs Baccini was Regulation No 1408/71 (which has now held to be fit to resume work as from 1 become paragraph (4) following the September 1977. The Belgian institution amendment of that regulation by Regu- advised the Italian institution of this by lation No 2595/77 of 21 November 1977 letter of 17 October 1977. — Official Journal L 302) which states that: On 18 April 1978 Italy's consular agent "A decision taken by an institution of a at La Louvière informed the Directorate- Member State concerning the degree of General of the Italian institution in invalidity of a claimant shall be binding Rome that Mrs Baccini was no longer on the institution of any other Member suffering from invalidity for the purposes State . . . " of Belgian legislation and asked whether
JUDGMENT OF 23. 3. 1982 — CASE 79/81
"the apportioned Italian pension" had to for work if the degree of that incapacity be paid back. is 5 0 % or more."
Having become fit for work again in Mrs Baccini instituted proceedings Belgium Mrs Baccini thus regained against that decision before the Tribunal her right under Belgian legislation to du Travail [Labour Tribunal], Charleroi, receive unemployment benefit. The first and then brought proceedings by way of paragraph of Article 141 of the Royal appeal before the Cour du Travail Decree of 20 December 1963 on [Labour Court], Mons, which, by employment (amended on 11 September judgment of 3 April 1981, decided to 1969) provides that: submit the following questions to the Court of Justice:
"A worker in receipt of benefits under a Belgian invalidity insurance scheme shall 1. Must Article 51 of the Treaty of not be entitled to unemployment benefit Rome and Regulations Nos 1408/71 for unfitness for work." and 574/72 be interpreted as meaning that it is in accordance with the aims of the Treaty for a migrant worker to In fact Mrs Baccini received Belgian be prohibited from receiving both unemployment benefit from 28 April to unemployment benefit in a Member 4 June 1975 and again as from State of the Community (in which he 1 September 1977. fulfils the conditions of that State's legislation as to the state of incapacity denied by the authorities of that However the Italian invalidity pension State) and an apportioned invalidity continued to be paid to Mrs Baccini and pension (type B legislation) payable the Belgian institution advised the Office by another Member State for National de l'Emploi [National Employ incapacity for work accepted by the ment Office] of this. The director of the authorities of that State, when both regional office of the Office National de social security benefits do not cover l'Emploi at La Louviėre acted on that the same injur)·, the amount of the information by decision dated 8 invalidity benefit is much lower than December 1978. He withdrew Mrs the unemployment allowance and two Baccini's entitlement to unemployment medical authorities of the competent benefit and directed that she should institutions have adopted different repay the sums which he considered she attitudes as to the claimant's state of had thus improperly received. He did so incapacity? in reliance on the third paragraph of Article 141 of the Royal Decree of 20 December 1963 on employment and 2. If a worker is in receipt of an redundancy, as amended on 11 allowance for incapacity for work September 1969, which states that: under the legislation of Member State A (tvpe A legislation) and invalidity benefits (type B legislation) payable "A worker in receipt of benefit under a by an institution in Member State B foreign sickness and invalidity insurance pursuant to Community regulations, scheme owing to incapacity for work or and that worker then ceases to be occupational disease shall not be entitled accepted as unfit for work by the to unemployment benefit for unfitness competent authority in State A, ceases
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to draw benefit under the invalidity Upon hearing the repon of the Judge- insurance legislation of that State's Rapponeur and the views of the competent institution but signs on for Advocate General the Coun decided to unemployment benefit with State A's undenake measures of inquiry in competent institution whilst neverthe- accordance with Article 21 of the Statute less still drawing State B's invalidity and Anicie 45 of the Rules of Procedure. pension (the attitude of the competent authority in State B remaining unchanged), is the competent institution of State A justified on the By a letter dated 6 October 1981 the basis of the aims of Article 51 of the Registrar of the Coun asked the Belgian Treaty in claiming that there is Government to produce the correspon- incompatibility between two benefits dence between the Belgian and Italian of a different kind (unemployment institutions so as to establish accurately: benefit and invalidity pension) and in reiving on national rules on over- lapping to reduce the unemployment benefit to nothing? If the answer is in The degree of invalidity determined by the affirmative is not that situation the Belgian institution and notified to the itself the result of the enjoyment of Italian institution; the invalidity pension under Regu- lation No 1408/71 so that the regu- lation does not provide the security required by Article 51 of the Treaty The date of that notification; and is contrar)· to the objectives of the Treaty?
The date on which the Belgian authoritv recognized Mrs Baccini as being again fit for work and therefore withdrew the The judgment making the reference for a Belgian invalidity allowance; preliminar}' ruling was received at the Court Registry on 10 April 1981.
The terms of the letter by which the In accordance with Anicie 20 of the Belgian institution notified the Italian Protocol on the Statute of the Court of institution that the period of Mrs Justice of the European Economic Baccini's incapacity for work had come Community written obsenations were to an end. lodged by Mrs Baccini, represented by D. Rossini, a member of the Associazioni Christiane lavoratori italiani. Brussels, Social and Legal Department for The Italian Government was requested Migrant Workers; the Office National to inform the Coun of the reasons why de l'Emploi, represented by its Director- the Italian institution considered that it General, Mr André; the Italian had to grant Mrs Baccini a permanent Government, represented by Arnaldo invalidity pension. Squillante, acting as Agent, and Ennio Viola, Advocate, and by the Commission of the European Communities, rep- resented by its Legal Adviser, Jean The Belgian and Italian Governments Amphoux, and Francis Herbert of the were requested to submit their obser- Brussels Bar, both acting as Agents. vations by 15 November 1981.
JUDGMENT OF 23. 3. 1982 — CASE 79/81
The Belgian Government sent the order to determine an unemployed documents requested on 11 November person's incapacity for work, it is 1981. The Italian Government did not necessary to have regard to the furnish the information requested. Mrs legislation of the State to which the Baccini's representative undertook to worker was subject at the time when the provide a partial answer to the questions risk materialized or to the legislation of put by the Court. On the advice of the the State which is responsible for paying Judge-Rapporteur and the Advocate the invalidity benefit the grant of which General the President of the Court annuls the worker's right to unemploy- decided to accept the documents ment benefit due under the legislation of submitted by Mrs Baccini. the first State.
The answers to the questions put by the She claims that it is necessary to resolve Court have been incorporated in the that legal problem because the Belgian foregoing account of the facts and institution withdrew her unemployment written procedure. benefit not for the reason that she received an Italian pension but because that pension had been awarded to her The documents contained in the file on for a degree of incapacity for work the case which were submitted to the which exceeded 50%. Court following those additional measures of inquiry also show that the Italian invalidity pension was withdrawn, In her opinion, by analogy with Anicie with effect from 1 February 1981, by a 39 (1) of Regulation No 1408/71, decision of the Italian authorities of according to which incapacity for work 22 Mav 1981. It should also be noted followed by invalidity must be deter- that Regulation N o 2793/81 of 17 mined by the institution of the Member September 1981 (Official Journal L 275) State whose legislation was applicable at terminated the concordance between the time when incapacity for work Italian and Belgian legislation on followed by invalidity occurred, her conditions relating to the degree of degree of incapacity for work should be invalidity. determined under Belgian legislation because it was in Belgium that she fell ill, was recognized as suffering from In accordance with Article 54 of the invalidity and then as being again fit for Rules of Procedure the date for the work and that she signed on for opening of the oral procedure was fixed unemployment benefit. The fact that the for the date by which the questions put Italian authorities considered Mrs by the Court were to be answered. Baccini's invalidity to be permanent simply proves that those authorities considered themselves bound by the concordance of the criteria of invalidity II — Summary of the written provided for by Article 40 (4) of Regu- o b s e r v a t i o n s submitted to lation N o 1408/71 only as regards the Court positive effects (grant of the pension) and not as regards negative effects (withdrawal of the pension). Mrs Baccini, the appellant in the main action, considers that the legal problems Mrs Baccini considers moreover that by as set out in the judgment making the virtue of its structure and nature the reference raise the question whether, in Italian invalidity pension may be
BACCINI v ONEM
assimilated to an anticipatory retirement Community, Regulation No 1408/71 of pension and thus overlaps with the the Council. If the Belgian and Italian Belgian unemployment benefit within the periods of insurance had not been limits set by the first paragraph of Article aggregated, and thus if the Community 141 and Articles 145 and 146 of the regulations had not been applied, she Royal Decree of 20 December 1963. would not have received the apportioned invalidity pension payable by Italy and would have continued to receive Belgian unemployment benefit which is greater She observes that if the application of the than the amount of the Italian invalidity provision at issue, the third paragraph of pension. Article 141 of the Royal Decree of 20 December 1963, is made possible by the very terms of Regulation No 1408/71, which provides in Article 12 (2) that: Mrs Baccini proposes that the questions submitted to the Court should be answered as follows: "The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of over- "Any provision contained in Regulations lapping with other social security benefits Nos 1408/71 or 574/72 of the Council or other income may be invoked even whose application has the effect of though the right to such benefits was reducing to nothing the benefits acquired acquired under the legislation of another by a migrant worker under the Member State or such income arises in legislation of the State to which he was the territory of another Member State", subject when the relevant risk mater- ialized is incompatible with the Treaty."
then the strict application of the third paragraph of Article 141 has had the "If benefits of a different kind are effect of depriving her, as a migrant incompatible, the worker concerned must worker, of entitlement to unemployment in any event receive an amount by way benefit under Belgian legislation alone. of benefits at least equal to that due That result is contrary not only to under the legislation of the State on Articles 48 to 51 of the Treaty but also whose territory the risk entitling him to to Article 1 of the Protocol to the the benefits materialized." European Convention on Human Rights which provides that every natural person is entitled to the peaceful enjoyment of his possessions and therefore of his only The Office National de l'Emploi, the source of income. The protection of repondent in the main action, considers fundamental rights is an integral part of that, although the Court has no the general principles of law which the jurisdiction in proceedings for a preli- Court has the task to safeguard wherever minary ruling to decide whether rules of they are adversely affected by a rule of national and Community law are Community law. compatible, it should nevertheless be observed that the third paragraph of Article 141 of the Royal Decree of 20 December 1963 does not at all contradict Mrs Baccini emphasizes that she is in the the provisions of Community law. The position of which she complains because prohibition of the overlapping of of the effect of a measure adopted by the unemployment benefit with an invalidity
JUDGMENT OF 23. 3. 1982 — CASE 79/81
pension is one of the cases governed by Court of Justice but for the Italian State Article 12 (2) of Regulation No 1408/71. to specify the designation of the benefits which it awards and consequently to indicate whether the invalidity pension which it grants is a benefit awarded It adds that in distinguishing between under a sickness and invalidity insurance Belgian and foreign benefits the Belgian scheme or an anticipator}' old-age Royal Decree is very favourable to the pension. migrant worker: the payment of benefits under foreign sickness and invalidity insurance schemes entails withdrawal of Belgian unemployment benefit only in so The Commission analyses the various far as the degree of incapacity for work provisions applicable: the provisions of is recognized as being 50% or more Belgian law on unemployment and (third paragraph of Anicie 141) whereas invalidity benefits, the Italian legislation receipt of a benefit under the Belgian on invalidity pensions, the Community sickness and invalidity insurance scheme rules referred to in the judgment making constitutes an absolute bar to entitlement the reference and the provisions of to Belgian unemployment benefit (first Belgian and Community law for the paragraph of Article 141). prevention of overlapping benefits.
The Office National de l'Emploi believes that the legal issues raised by this case It stresses that the issues raised by this stem from the fact that the Italian auth- case are important in two respects : orities did not apply Article 40 (4) of Regulation No 1408/71 correctly.
First, the financial consequences of the contested decision of the Director of the Neither Article 40 (4) nor the rules of regional office of the Office National de concordance contained in Annex IV to l'Emploi at La Louvière: by virtue of that Regulation No 1408/71 make any decision Mrs Baccini is not only distinction between decisions producing disentitled to unemployment benefit but a positive effect (acquisition of a right to also to cash benefits under the Belgian a pension) and decisions producing a sickness and invalidity insurance scheme negative effect (withdrawal of the if she falls ill (she remains entitled to pension). Consequently the Italian benefits in kind under Italian legislation institution should have considered itself because she receives an Italian pension bound by each decision of the Belgian — Article 28 of Regulation No 1408/711 institution and in particular should have and to Belgian family allowances. She withdrawn the invalidity pension remains entitled only to the much smaller awarded to Mrs Baccini when the Italian family allowances (Article 77 ( 11 Belgian institution declared that she was (a) of Regulation No 1408/71). Thr fit to resume work. Commission also points out that Mr* Baccini is faced with repaying un- employment benefits considered to ha\r been improperly received when her onk The Office National de l'Emploi believes means of subsistence is the insignificant that it is not for the Belgian courts or the amount of the Italian invalidity pension
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Secondly, the large number of similar invalidity pension to be assimilated not disputes in Belgium which have been to the Belgian invalidity allowance but to decided differently: the Commission, more comparable benefits such as an which has entered into discussions with anticipatory old-age pension or a miner's the Belgian authorities in order to invalidity'pension which do not entail resolve such situations in a uniform withdrawal of unemployment benefits manner, considers that the solution to but simply reduce them (Anieles 146 and these problems really amounts to a 146 bis of the Rova! Decree of 20 question of interpreting national law December 1963). which does not fall within the jurisdiction of the Court in so far as it is for the Belgian authorities to take account of the real nature of the Italian invalidity pension. The Commission agrees that the question whether the third paragraph of Article 141 of the Belgian Royal Decree of 20 December 1963 is compatible with the Community regulations does not arise in so far as : Against that background the Commission points out that the Belgian and Italian concepts of invalidity are fundamentally different. The Italian legislation makes provision for the grant of pensions which presuppose that invalidity is permanent, although they do not ruie out all work, First, it constitutes a provision for the and their acquistion and amount depend prevention of overlapping benefits as on the length of insurance periods (type defined in Article 12 (2) of Regulation B legislation: see Section 2 of Chapter 2 No 1408/71. That must be the of Title III of Regulation No 1408/71). conclusion if Belgian unemployment The Belgian law, however, which is benefits and the Italian invalidity pension based on risk, makes provision for the may not in any event be considered to be payment of invalidity allowances the "benefits of the same kind in respect of amount of which is independent of the invalidity, old age, death or occupational length of insurance periods and which disease" within the meaning of Article 12 only require continuing invalidity of a (1) of Regulation No 1408/71 which degree of more than 66% in order to be permits benefits of the same kind to maintained (Section 1 of Chapter 2 of overlap; Title III of Regulation No 1408/71). Thus the Italian invalidity rules amount to an "anticipatory retirement pension" scheme whereas the Belgian rules are akin to a sickness benefit scheme. Secondly, it follows from the judgment in Case 37/77 Mura [1977] ECR 1699 that when rights are granted pursuant to the application of national law alone, that national law applies in its entirety, including its provisions against the over- According to the Commission, which lapping of benefits which expressly apply agrees with Mrs Baccini on this point, it to benefits granted under foreign would have been desirable for the Italian legislation.
JUDGMENT OF 23. J. 1982 — CASE 79/81
The Commission observes however that, aims of Article 51 of the Treaty, the having bound the Italian institutions questions put by the national court under Article 40 (4) of Regulation N o should be answered on the basis of the 1408/71 by determining the degree of objectives of the Treaty and secondary Mrs Baccini's invalidity, the Belgian Community law. institutions then rely on the grant of the apportioned Italian invalidity pension in order to deduce from this that, in accordance with the provisions of The first aim of the Community regu- Belgian law for the prevention of over- lations is to ensure that workers may lapping benefits and Article 12 (2) of indeed move freely. Regulation No 1408/71, Mrs Baccini may draw unemployment benefit in Belgium. The Commission considers that "the apparently absurd result of the As the Court stated many times, the aim application of the national provision of Article 51 of the Treaty and the regu- against the overlapping of benefits in its lations adopted for its implementation is entirety and exclusively is caused by the to prevent a migrant worker from losing fact that the effects of Article 40 (4) of the benefit of his periods of employment Regulation N o 1408/71 are more because he moves from one Member extensive than the draftsmen of that State to another so that he is no worse provision had imagined" in so far as that off than if he had worked all his life in regulation in no way contemplates the one Member State (judgment in Case coordination of benefits coming under 22/77 Greco [1977] ECR 1978 — different branches of social security. Opinion of Mr Advocate General Warner).
In the Commission's view Mrs Baccini's The second fundamental principle of the fitness to resume work in Belgium and, Community rules was affirmed in as the case may be, her entitlement to particular in the judgments in Case draw unemployment benefit in that 24/75 Petroni [1975] ECR 1149 and country cannot be contested on the Case 34/69 Duffy [1969] ECR 597. It is ground that the Italian invalidity pension that the rights which workers have in a continues to be paid to her. Under Member State from the application of Italian legislation the degree of invalidity national legislation alone must not be is determined once and for all on the diminished by the effect of provisions of date of acquisition of the right to the Community law. Consequently a migrant pension and is not re-assessed. worker may not be entirely deprived of a national benefit, acquired without the aid of Community law, by the effect of a provision of national law against the The Commission considers that in so far overlapping of' benefits which was as, on the one hand, the Court has never applied as the result of the grant of an been asked to consider the question of apportioned pension in another Member the effects of a national provision against State. overlapping where it applies to benefits of a different kind and, on the other hand, it has nevertheless held that the scope of such a provision may be limited The principle of restricting the effect of by the regard which should be had to the provisions of national law against the
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overlapping of benefits was repeated in Article 12 (2) confirms in Community the Brouwer-Kaune judgment in Case law the rule against overlapping 181/78 [1979] ECR 2111. contained in the third paragraph of Article 141 of the Belgian Royal Decree of 20 December 1963. In the Commission's view a third fundamental principle is that a migrant worker may not suffer a disadvantage However, the Italian Government because of a system which, in the considers that Article 12 (2) of Regu- absence of a common social security lation No 1408/71 is not compatible scheme, exists merely to coordinate with the aims of the Treaty as stated in national legislation which is not yet Articles 48 to 51 and reaffirmed by the harmonized (judgment in Case 50/73 Coun in a consistent line of decisions. Massonet [1975] ECR 1473). Article 12 (2) constitutes a hindrance to freedom of movement for workers or at any rate restricts their freedom to choose In view of the principles set forth above their place of work in so far as it the Commission proposes that the adversely affects rights which they have questions should be answered as follows: under national legislation alone and thus deprives them of benefits to which they would be entitled if they had spent their 1. So long as a migrant worker receives working life in one Member State. a social security benefit under national legislation alone Regulation No 1408/71 does not prevent the In the view of the Italian Government national legislation from being applied the non-conformity of Article 12 (2) with to him in its entirety, including the provisions of Articles 48 and 51 of national rules against the overlapping the Treaty cannot be cured by reason of of benefits. the fact that if Mrs Baccini is allowed to receive both the Italian invalidity pension and Belgian unemployment benefit her 2. However, Regulation No 1408/71 situation as a migrant worker will be and Article 51 of the EEC Treaty on more favourable than that of a national which it is based do not permit a worker and will cause discrimination national provision against the over- between workers in the same Member lapping of benefits to create a State. situation in which, owing to the total withdrawal of unemployment benefit to which a migrant worker was entitled under national legislation, that worker receives in the aggregate less than he would have in fact I l l — Oral procedure received if he had never worked anvwhere else than in that Member State. The parties to the main action, the Italian Government and the Commission presented oral argument at the sitting on According to the Italian Government, the 9 December 1981. prohibition of overlapping to which the Cour du Travail, Mons, refers comes within the scope of the first sentence of The Advocate General delivered his Article 12 (2) of Regulation No 1408/71 opinion at the sitting on 10 February of the Council. 1982.
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Decision
1 By judgment dated 3 April 1981 which was received at the Court on 10 April 1981 the Cour du Travail [Labour Court], Mons, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions concerning, on the one hand, the interpretation of Regulation N o 1408/71 of the Council of 14 June 1971 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) and Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation N o 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159) and, on the other hand, and secondarily, the validity of Regulation No 1408/71 in regard to the aims of the Treaty in general and the terms of Anicie 51 thereof in particular.
2 Those questions were raised in the context of a dispute between Mrs Baccini and the Office National de l'Emploi [National Employment Office] of Belgium.
3 Mrs Baccini, an Italian national, worked in Italy and then in Belgium. She received an invalidity allowance in Belgium as from 5 July 1973.
* In accordance with the provisions of Regulation Nos 1408/71 and 574/72 of the Council the Institut National d'Assurance Maladie-Invalidité of Belgium [hereinafter referred to as "the Belgian institution"] informed the Istituto Nazionale della Previdenza Sociale [hereinafter called "the Italian institution"] of Italy of Mrs Baccini's invalidity. According to paragraph (3) (which has since become paragraph (4)) of Article 40 of Regulation No 1408/71, "a decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislations of these States on conditions relating to the degree of invalidity is acknowledged in Annex IV". Before Council Regulation No 2793/81 (Official Journal L 275, p. 1), which amended Regulation No 1408/71, came into effect on 18 September 1981, Annex IV accepted the concordance between the Belgian and Italian legislation on conditions relating to the degree of invalidity.
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s In view of the information which it had received from the Belgian institution on Mrs Baccini's condition and which was binding upon it by virtue of the provisions of Regulation No 1408/71 cited above and Annex IV thereto, the Italian institution awarded her as from 1 August 1974 an invalidity pension which, having regard to the fact that Mrs Baccini had worked in Italy and Belgium, was aggregated and apportioned in accordance with the procedure laid down by Regulation Nos 1408/71 and 574/72.
6 The medical officer of the competent Belgian institution subsequently found that Mrs Baccini's unfitness for work had come to an end and the Belgian invalidity benefits ceased to be paid to her. The first paragraph of Article 141 of the Belgian Royal Decree of 20 December 1963 on employment and redundancy, as amended on 11 September 1969, provides that "a worker in receipt of benefits under a Belgian sickness and invalidity insurance scheme shall not be entitled to unemployment benefit for unfitness for work" and Mrs Baccini, who was no longer in receipt of a Belgian invalidity benefit, was granted Belgian unemployment benefit which she drew from 28 April 1975 to 4 June 1975 and then again from 1 September 1977.
7 As amended, the third paragraph of Anicie 141 of the Belgian Royal Decree of 20 December 1963 provides that "a worker in receipt of benefits under a foreign sickness and invalidity insurance scheme for incapacity for work not caused bv an accident at work or by occupational disease shall not be entitled to unemployment benefit for unfitness for work if the degree of that incapacity is 5 0 % or more". On the basis of those provisions on 8 December 1978 the director of the regional office of the Office National de l'Emploi at La Louviėre, relying on the fact that Mrs Baccini was receiving an invalidity pension which the Italian institution had granted to her, refused her Belgian unemployment benefit from 28 April to 4 June 1975 and then from 1 September 1977 and required her to repay the benefits which she had received during those periods.
* Mrs Baccini instituted proceedings against that decision before the Tribunal du Travail [Labour Tribunal], Charleroi, and then brought proceedings by way of appeal before the Cour du Travail, Mons, which asks in substance:
First, whether Article 51 of the EEC Treaty and Regulations Nos 1408/71 and 574/72 must be interpreted in such a way that it is in accordance with
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the aims of the Treaty to refuse a migrant worker unemployment benefit pursuant to rules of national law against the overlapping of benefits in a State in which he is no longer recognized as unfit for work on the ground that he is in receipt of an apportioned invalidity pension from another Member State which has been determined with regard to the Community regulations;
Secondly, if the answer to that question is affirmative, whether that situation is "not itself the result of the enjoyment of the invalidity pension under Regulation No 1408/71 so that the regulation does not provide the security specified by Article 51 of the Treaty and is contrary to the objectives of the Treaty".
9 Both the wording of the first question put by the Mons court and the grounds of its judgment indicate that the grant of unemployment benefit to the migrant worker whose case is before that court depends on her fitness for work and that her fitness for work is accepted by the authorities of the State from which the benefit is claimed.
io Simply because Mrs Baccini receives an invalidity pension fixed in the manner prescribed by Regulations Nos 1408/71 and 574/72 from another Member State the competent authorities of the State required to pay unemployment benefit to her refused to do so on the basis of a provision of their own national legislation.
n Therefore the answer to the first question raised by the Cour du Travail, Mons, turns on whether, having regard to the aims of the Treaty, the grant to a migrant worker by a Member State, other than that in which he works, of an invalidity pension awarded and calculated on the basis and under the conditions prescribed by the Community regulations in question may have the effect of withdrawing from that worker the right to a different kind of benefit which the legislaiton of the State of employment alone would give him if he had not benefited from application of the Community regulations.
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1: Article 48 to 51 of the Treaty seek to ensure that workers may move freely within the Community. Regulations Nos 1408/71 and 574/72, adopted pursuant to Article 51 of the Treaty, give practical effect to the principles enunciated in that article in the field of social security.
1 3 Although according to the case-law of the Court restrictions may be placed on migrant workers as a counterpart to the social security advantages which they derive under the Community regulations and which they could not obtain without them, the aim of Articles 48 to 51 of the Treaty would not be achieved if the effect of the application of those regulations were to withdraw or reduce the social security advantages which a worker enjoys under the legislation of a Member State alone.
M It would be contrary to the objectives of Articles 48 to 51 of the Treaty if provisions designed to facilitate the movement of migrant workers in reality made it more difficult for them by depriving them of advantages which they could have enjoyed if it were not for those articles of the Treaty and the provisions adopted by the Council to implement them.
is It is true that Article 12 (2) of Regulation No 1408/71 provides that: "The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the territory of another Member State". However, having regard to the objectives of Articles 48 to 51 which have just been mentioned, the provisions of that paragraph may not be construed as applying to the provisions of the national legislation of a Member State which, for the purpose of granting unemployment benefit the amount of which depends upon a claimant's fitness for work, do not take account of the actual physical condition of the worker on the date on which he becomes unemployed but take as evidence that a migrant worker is not fit for work the fact that he has previously been granted an invalidity pension in another Member State pursuant to rules of Community law and on the basis of information provided by the first Member State.
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i6 As a result of the foregoing the answer to the first question raised by the Cour du Travail, Mons, must be that Anicie 51 of the Treatv and Regu- lations Nos 1408/71 and 574/72 of the Council must be interpreted as meaning that where, under the national legislation of a Member State, the right of a migrant worker to unemployment benefit depends on his fitness for work and such fitness for work has been accepted by the competent authorities of the said Member State, those authorities may not refuse the worker in question unemployment benefit on the ground that he is in receipt in another Member State of an aggregated and apportioned invalidity pension determined in accordance with Community rules.
r In view of the answer which has just been given to the first question asked bv the Cour du Travail, Mons, there is no need to answer the second question raised by that court which concerns the validity of Regulation No 1408/71 in regard to the objectives of the Treaty and appears to have been put in the alternative.
Costs
is The costs incurred by the Italian Government, the Belgian Government and the Commission which have submitted observations to the Court are not recoverable.
is 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.
On those grounds,
THE COURT
in answer to the questions referred to it by the Cour du Travail, Mons, bv judgment of 3 April 1981, hereby rules:
Article 51 of the EEC Treaty, Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed
BACO NI v ONEM
persons and their families moving within the Community and Regulation No 574/72 fixing the procedures for implementing that regulation must be interpreted as meaning that where, under the national legislation of a Member State, the right of a migrant worker to unemployment benefit depends on his fitness to work and such fitness for work has been accepted by the competent authorities of the said Member State, those authorities may not refuse the worker in question unemployment benefit on the ground that he is in receipt in another Member State of an aggregated and apportioned invalidity pension determined in accordance with Community rules.
Mertens de Wilmars Bosco Touffaii Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Everling Chloros Grévisse
Delivered in open court in Luxembourg on 23 March 1982.
P. Heim J. Mertens de Wilmars Registrar President
OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED O N 10 FEBRUARY 1982 '
Mr President, social security schemes prescribed by Members of the Court, Article 51 of the EEC Treaty to help workers move freely and which are now I. Introduction mainly contained in Regulation No 1408/71 (codified version, Official The case of Ivlrs Baccini shows that the Journal 1980, C 138, p. 1) do not always measures to coordinate or link national lead to the desired result in national
1 — Translated írom ihr Dutch