C-92/81

1. INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ [National Sickness and Invalidity Insurance Institution], w h o s e offices are at 211 Avenue de Tervuren, Brussels, respondent in cassation,

2. UNION NATIONALE DES MUTUALITÉS SOCIALISTES [National Union of Socialist Mutual Associations] w h o s e offices are at 32-38 Rue Saint-Jean, Brussels, respondent in cassation,

on the interpretation of Regulation N o 3 o f the Council of the E E C of 25 September 1958 concerning social security for migrant workers and Regulation N o 4 of the Council o f the EEC of 3 December 1958 on im- plementing procedures and supplementary provisions in respect of Regu- lation N o 3 ,

T H E C O U R T (Second Chamber)

composed of: O . D u e , President o f Chamber, A. Chloros and F. Grévisse, Judges, Advocate General : P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

At her request the medical officer of her Subsequently Mrs Caracciolo was found insurance institution authorized her to by the Conseil Médical de l'Invalidité stay in Italy from 15 November to 14 [Medical Invalidity Committee] to be December 1965. incapable of work within the meaning of the Belgian legislation (Article 56 (1) of the Law of 9 August 1963). When summoned subsequently by her insurance institution to undergo a medical examination on 30 December 1965 she failed to appear and informed Her application of 31 January 1966 for that institution that she had been an invalidity pension was, however, declared fully recovered on 5 January rejected by a decision of the Belgian 1966 by the Italian sickness insurance insurance institution of 12 May 1969 on body responsible for such matters under the ground that she had not, in her the Belgo-Italian Administrative Ar- capacity as an insured person under rangement of 1950. At the same time Belgian law, invoked or exhausted her she asked the Belgian insurance in- entitlement to sickness, insurance cash stitution to send her Form E 37 to benefits. enable her to draw sickness benefit in Italy pursuant to Article 22 (3) of Regu- lation No 4. She has received no Mrs Caracciolo's complaint to the allowances since then. Tribunal du Travail [Labour Tribunal], Brussels, seeking to have the above- mentioned decision of the Belgian Mrs Caracciolo then challenged the insurance institution overturned and to validity of the notification sent to her of be granted an invalidity pension under

JUDGMENT OF !C. 6. 1982 — CASE 92/81

The Cour du Travail decided that since Mrs Caracciolo ceased, to be eligible for sickness and invalidity insurance benefits "1. Where a worker in receipt of from 6 January 1966 her situation was sickness and invalidity insurance no longer one of those covered by the benefits in cash in a Member State Administrative Arrangement of 20 • of the European Community, who October 1950. The provisions of that has been authorized to stay in instrument which govern in particular the another Member State in order to procedure for declaring persons unfit for receive treatment there, has re- work remain in force as between Italy mained in that other State after the and Belgium by virtue of Article 6 (1) expiry of the prescribed period and and (2) of Regulation No 4. As a result on conditions which are irregular Mrs Caracciolo remained subject solely under the legislation of the State of to Belgian law, according to which the origin and under an administrative insured person is obliged to notify the arrangement concluded between the medical officer of the Belgian insurance two States which has remained institution of any fresh incapacity for applicable under Regulations Nos 3 work. After submitting her application to and 4 concerning social security for the Italian institution, however, the migrant workers, must Article 83 of appellant did not make use of the Regulation No 4 be interpreted to procedure provided for by Belgian mean that that provision determines legislation. The Cour du Travail also not only the date on which a held that in any case Article 70 (1) of the declaration or an appeal shall be Law of 9 August 1963 which establishes deemed to have· been made to the the principle of territoriality prohibits the authority, institution or agency grant of sickness benefit: competent to take cognizance thereof but also the validity of the claim when it is addressed to an authority, institution or agency of a Member State other than that of the "Where the claimant is not in fact on Sute whose authority, institution Belgian territory at the time when he or agency is competent to take claims the benefits or if health benefits cognizance thereof? were provided outside the national territory."

although under the legislation of the II — Written o b s e r v a t i o n s s u b - Sute of the competent authority the mitted to the Court pur- claimant's residence in the other suant to Article 20 of the Sute was irregular? P r o t o c o l on the Statute of the Court of Justice of the EEC 3. Likewise, do the provisions of Article 10 (1) of Regulation No 3 concerning social security for 1. The appellant in the main action, migrant workers preclude the appli- Mrs Caracciolo, maintains that on a cation by the insurance institution of literal interpreution of Article 83 of the Member Sute of origin of the Regulation N o 4 and the judgment of principle of the territoriality of the Court of Justice in Case 108/75 benefits laid down by national legis- (Bahamo v INAMI), the first question lation, in this case by Article 70 (1) mun be answered in the affirmative. of the Belgian Law of 9 August 1963?" As to the second question, the appellant observes that Article 83 of Regulation No 4 makes no exception for cases The order of 6 April 1981 referring the where the insured person is residing matter to the Court of Justice was under irregular conditions in a Member lodged at the Court Registry on 16 April Sute other than the Sute of the 1981. competent authority. Hence if the irregular absence is not for fraudulent motives and is simply the result of a lack Pursuant to Anicie 20 of the Protocol on of acquainunce with all the provisions the Statute of the Court of Justice of the applicable, as is the case here, it would EEC written observations were submitted be contrary to the spirit of the Com- on 29 June 1981 by the appellant in munity regulations on social security for cassation, Mrs Caracciolo, represented migrant workers if the person concerned by A. Bayart, Advocate at the Belgian were deprived of the benefit of Article 83 Cour de Cassation; on 3 July 1981 by of that regulation. the Institut National d'Assurance Maladie-Invalidité, represented by A. Houtekier, likewise Advocate at the For the third question it is also suggested Cour de Cassation; and on 24 June 1981 that the reply be in the affirmative, by by the Commission of the European analogy with the argument set out in Communities, represented by Jean relation to the reply to be given to the Amphoux, acting as Agent, and G. second question. Vandersanden, ofthe Brussels Bar. 2. The Institut National d'Assurance By order of the Court of 26 October Maladie-Invalidité, the respondent in the 1981 the case was assigned to the Second main action, sets out in its written Chamber. observations an analysis of Article 83 of Regulation N o 4 and Article 10 (1) of Regulation No 3. Upon hearing the report of the Judge- Rapporteur and the views of the The Belgian institution contends that Advocate General, the Court (Second Article 83 is not concerned with the Chamber) decided to open the oral question whether the application is in procedure without any preparatory due form but solely with the date to be enquiry. uken into consideration as the date of

submission of claims. The reply to the C acciolo's residence in Italy was first question should therefore be in the irregular inasmuch as her stay there was negative. not authorized by her Belgian insurance institution. In the Commission's view the crux of the question is therefore whether The institution claims further that Mrs a claim for payment of sickness benefit Caracciolo's situation is not covered by in cash, or an appeal against a decision any provision in the Community regu- refusing such a claim, is admissible in the lations owing to the fact that the transfer circumstances of the present case. of her residence to Italy was irregular.

In January 1966 she was paid primary disablement benefit and, in the view of Thr Commission submits that Article 19 the Belgian insurance institution, she (2) makes continued eligibility for ought to have made a fresh claim for benetits, in kind or in cash, subject to payment of such allowances in respect of an authorization from the competent any further incapacity for work institution. By analogy with the Court's occurring after the decision terminating ruling in Pierik (Case 117/77, judgment the original incapacity. The Belgian of 16 March 1978, [1978] ECR 825), institution therefore suggests that the the Commission concludes that the replv to the third question should be in competent authority's power to refuse the negative. authorization is restricted by the purpose of the Community regulations itself which is to ensure that a worker may

CAMERA v INAMI

Therefore, in the Commission's opinion, "The reply to the questions which have it follows that in so far as checks on the been put by the Court of Cassation beneficiary's incapacity for work may be depends solely in fact on the interpret- carried out under the provisions adopted ation of Article 19 (2) and (6) of Regu- either at Community level or under the lation No 3. Those provisions guarantee bilateral agreement, there is no longer continuance of the right to receive any justification for requiring author- sickness benefits in cash for workers who ization; this conflicts with the principle are in the territory of a Member State laid down in Article 51 (b) of the EEC other than the competent State provided Treaty. To interpret Article 19 (2) of that the conditions other than those Regulation No 3 as requiring continued concerning the presence of the claimant eligibility for cash benefits to be subject in the territory of the latter Member to authorization from the competent Sute are met and that he submits himself institution would prejudice the funda- to the checks which are provided for in mental aim of the Treaty embodied in such a case. the social security system, which is to establish the most favourable conditions possible for achieving freedom of movement and employment for workers within the Community. The fact that a claimant has extended his stay beyond the period authorized by the competent institution cannot affect the validity of a claim to have his incapacity As to the third question, which concerns for work confirmed or a complaint the interpretation of Article 10 (1) of seeking to have a decision declaring him Regulation No 3, the Commission is of fit for work revoked." the opinion that it is not applicable in the present case because the article concerns solely pensions and death benefits, whereas the difficulty raised in the present case concerns entitlement to sickness benefits in cash. I l l — Oral procedure

1 By an order dated 6 April 1981, which was received at the Court on 16 April 1981, the Belgian Cour de Cassation [Court of Cassation] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Regulation No 3 of the Council of the EEC of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and Regulation No 4 of the Council of the EEC of 3 December 1958 on implementing procedures and supplementary provisions in respect of Regulation No 3 (Journal Officiel 1958, p. 597). Those questions arose in the course of an appeal in cassation against a judgment of the Cour du Travail [Labour Court], Brussels, upholding the decision of the Tribunal du Travail [Labour Tribunal], Brussels, rejecting Mrs Caracciolo's claim for payment of an invalidity pension by the Institut National d'Assurance Maladie-Invalidité [National Sickness and Invalidity Insurance Institution] (hereinafter referred to as "the Belgian institution").

CAMERA v INAMI

under Belgian law, claimed or exhausted her entitlement to sickness insurance cash benefits, as provided for by the Belgian law of 9 August 1963.

3 The judgment of the Tribunal du Travail rejecting Mrs Caracciolo's claim was upheld on appeal by the Cour du Travail, Brussels, on the ground that she had been excluded from the benefit of sickness and invalidity insurance since 6 January 1966 and was therefore no longer in a situation covered by the Belgorltalian Administrative Arrangement of 20 October 1950, which remained in force by virtue of Article 6 ( 1 ) and (2) of Regulation No 4 and governed the procedure for declaring persons unfit for work. As a result, according to the Cour du Travail, the appellant was subject exclusively to Belgian legislation at the time when she submitted her application for an invalidity pension to the Italian institution. Again according to the Cour du Travail and pursuant to the Belgian legislation, her application for an invalidity pension was irregular owing to the fact that she had not informed her insurance institution in Belgium of her fresh incapacity and, in any event, did not qualify for the disablement allowance under Article 70 (1) of the' Belgian Law in question, which establishes the principle of territoriality in relation to health benefits.

« In her appeal in cassation, Mrs Caracciolo claimed in particular that by virtue of Article 83 of Regulation N o 4 the application for an invalidity pension which she submitted to the Italian institution and which included a declaration of incapacity was equivalent to a declaration made to the competent Belgian authority and that moreover the principle of territoriality had ceased to be applicable by reason of its incompatibility with the provisions of Article 10 (1) of Regulation No 3.

The first and second questions

b Article 83 of Regulation No 4, to which the first question submitted by the Cour de Cassation relates, provides that: "The date of submission of claims, declarations or appeals to an authority, institution or agency of another Member State shall be deemed to be the date of submission thereof to the competent authority, institution or agency."

7 It is clear from the wording of that provision that it concerns the submission of claims by migrant workers. Its objective is to simplify the administrative formalities which must be complied with by persons concerned in view ot the complexity of the administrative procedures existing in the various M-.mber States and to prevent persons concerned from being deprived of their i..;hts

CAMERA v INAMI

on purely formal grounds. Thus, by virtue of Article 83 of Regulation No 4, the submission of a claim to an authority, institution or agency of a Member State other than the State called upon to pay the benefit has the same effect as if that claim had been submitted direct to the competent authority of the latter State.

s On the other hand, that article cannot be regarded as having a scope which, in addition to covering procedural questions, also extends to the substantive rules applicable in the matter.

1 2 According to Article 10 (1) of Regulation No 3 "Pensions or death benefits payable under the legislation of one or more Member States shall not suffer reduction, modification, suspension . . . by reason of the fact that the beneficiary is permanently resident in the territory of a Member State other than that in which the institution liable for payment is situated."

i3 Under Article 26 (1) of Regulation No 3 that provision is to apply mutatis mutandis to invalidity benefits.

•4 As the Court has already stated in its case-law, inter alia in its judgment of 7 November 1973 in Case 51/73 Bestuur der Sociale Verzekeringsbank v B. Śmieja [1973] ECR 1213, the aim of the provision contained in Article 10 is to promote the free movement of workers by insulating those concerned from the harmful consequences which might result when they transfer their residence from one Member State to another. It is clear from that principle not only that the person concerned retains the right to receive pensions and benefits acquired under the legislation of one or more Member States even after taking up residence in another Member State, but also that he may not be prevented from acquiring such a right merely because he does not reside in the territory of the State in which the institution responsible for payment is situated.

1 3 Moreover, it is appropriate to add that so far as sickness benefits are concerned this question is covered by Article 19 (2) of Regulation No 3, which provides for the retention of the right to sickness benefits for wage- earners or assimilated workers who transfer their permanent residence from one Member State to another but which expressly requires "the author­ ization of the competent institution, which shall take due account of the

On those grounds,

T H E C O U R T (Second Chamber),

in answer to the questions referred to it by the Belgian Cour de Cassation by order of 6 April 1981, hereby rules:

1. Article 83 of Regulation No 4 of the Council of the EEC of 3 December 1958 must be interpreted as meaning that the submission of a claim to an authority, institution or agency of a Member State other than the State called upon to pay the benefit has the same effect as if that claim had been submitted direct to the competent authority of the latter Sute.

2. The fact that the residence of the person concerned in the State where she submitted her claim was irregular under the legislation of

OPINION OF MR VERLOREN VAN THEMAAT — CASE 92/81

Mr President, insurance institution, the Union Natio- Members of the Court, nale des Mutualités Socialistes [National Union of Socialist Mutual Associations], 1. Introduction to stay in Italy from 15 November to 14 December. However, she did not return from that stay. After failing to comply Mrs Caracciolo was declared unfit for with a summons to attend a medical work in Belgium on 12 July 1965. On 9 examination in Belgium, she was November of that year she was auth- examined by the competent Italian orized by the medical officer of her insurance institution under the terms of 1 — Translated from the Dutch.