C-150/82

JUDGMENT OF 12. 1. 1983 — CASE 150/82

In Case 150/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Social Security Commissioner for a preliminary ruling in the proceedings pending before him between

LUIGI COPPOLA

and

INSURANCE OFFICER,

Facts and issues

The facts of the case, the course of I —• Facts and procedure the procedure and the observations submitted in accordance with Article 20 of the Protocol on the Statute of the 1. Mr Luigi Coppola, an Italian Court of Justice of the EEC may be national, was insured in Italy from 1952 summarized as follows: to 1958 as a general worker. From

COPPOLA v INSURANCE OFFICER

In order to satisfy the first condition, the claimant must actually have made contri- The Insurance Officer considered that butions to a specified extent. It is not in Mr Coppola did not satisfy the medical doubt that Mr Coppola satisfied that conditions as to the degree of invalidity condition at all relevant times. — which are different from those laid down by Italian law — for the award of an invalidity pension under United Kingdom law. He decided that Mr In order to satisfy the second condition, Coppola was not entitled to a United the claimant must have paid or have been Kingdom invalidity pension. Following credited with a sufficiency of contri- an appeal by Mr Coppola to the local butions during a period prior to the tribunal, that decision was upheld after a application for benefit, known at that further medical report. Mr Coppola time as a "contribution year". In this made a further appeal to the Social case, the relevant contribution year was Security Commissioner. the period from 4 June 1973 to 2 June

JUDGMENT OF 12. 1. 1983 — CASE 150/82

1974. During that contribution year, Mr days. In the second case, the result Coppola had paid or been credited with would be the payment of United a number of United Kingdom contri- Kingdom invalidity benefit at a lower butions lower than the minimum for rate after aggregation and apportionment entitlement to sickness benefit. in accordance with Article 46 of Regu- lation No 1408/71.

COPPOLA v INSURANCE OFFICER

mentioned in (iii) or is an contingency against which he is institution from which the insured under the same scheme claimant is entitled or would be with that institution he or entitled to benefits if he or a members of his family would by member of his family were virtue of his contributions in residing in the territory of that such Member State alone Member State within the satisfy the contribution contri- meaning of Article 1 (o) (ii) of butions for such benefit; or the said regulation; or (iii) in such other circumstances as (v) only in such other circum- may be indicated by the stances as may be indicated by European Court of Justice. the Court.

3. If the answer to question 1 is in the terms of (iii) or (iv) thereof, whether a claimant for contributory sickness 4. The decision making the reference benefit is to be treated for the was received at the Court Registry on purpose of the said Article 1 (o) (i) 13 May 1982. as insured with an institution: In accordance with Article 20 of the (i) only if on the occurrence of the Protocol on the Statute of the Court of contingency of sickness at that Justice of the EEC, written observations time his contributions in the were submitted by the Insurance Officer, Member State of the institution represented by Miss Ann V. "Windsor, are such that by virtue of those Senior Legal Assistant in the Department contributions alone he satisfies of Health and Social Security, by the the contribution conditions for Council of the European Communities, sickness benefit either at the full represented by John Carbery, Adviser in rate or at some reduced rate; or the Legal Department of the Council, and by the Commission of the European (ii) if alternatively on the Communities, represented by John occurrence at that time or at Forman, a member of its Legal some later time of any other Department.

JUDGMENT OF 12. 1. 1983 — CASE 150/82

1. Observations of the Insurance Officer With regard more particularly to the first question, the Insurance Officer is of the opinion that the only definition of "competent institution" which is relevant The Insurance Officer emphasizes, by for the purposes of Article 18 of Regu- way of a preliminary observation, that lation No 1408/71 is the definition in each of the various provisions relating Article 1 (o) (i). The question whether a to aggregation of insurance periods person is "insured" within the meaning contained in Articles 18, 38, 45, 64 and of that provision depends on whether or 72 of Regulation No 1408/71 must be not he was liable to pay contributions to looked at in the context of the specific the social security scheme administered benefit to which it relates. Since the by the institution in question immediately definition of the "competent institution" before the contingency concerned arose in Article 1 (o) of Regulation No or during such contingency. It would be 1408/71 does not exclude the possibility reasonable to extend the meaning of "the that more than one institution, and institution with which the person consequently more than one Member concerned is insured" so as to include State, may be competent at any given the institution to which he was last liable time, it is therefore imperative to have to pay contributions in respect of such regard to the objective criteria as risk. determined by the regulation. Whilst in the case of long-term benefits two or more Member States will normally be responsible concurrently for the payment Under United Kingdom legislation, a of a benefit, short-term benefits should person is regarded as being "insured" so be claimed in only one Member State. By long as he is covered for a contingency contrast with the provisions of Chapter 3 based on contributions previously paid as of Title III (old-age and death an employed person. However, in the (pensions)) which apply by analogy to context of Article 1 (o) (i), "insured" Chapter 2 (invalidity), it is implicit from must be construed as having the same the structure of the provisions in Chapter scope as the concept of a person's being 1 (sickness and maternity benefits) that "subject to the legislation of a single

In reply to the third question, a person is In view of that answer, it is unnecessary therefore to be regarded as being insured to answer the second question. However, with an institution within the meaning if an answer to that question were of Article 1 (o) (i) of Regulation No necessary, the Insurance Officer 1408/71, in respect of a particular considers that where a worker has been benefit, if he last paid contributions employed in two or more Member States in respect of that benefit under the before becoming incapable of work, legislation administered by that he remains subject to the legislation of institution. the Member State where he was last employed and liable to pay contributions where that legislation so requires. As regards the fourth question, the Insurance Officer observes first of all that where a worker has been subject successively to legislation of type B in As regards the third question, the one Member State (in this case Italy) and Insurance Officer considers that if the to legislation to type A in another word "insured" is interpreted in the Member State (in this case the United context of Article 1 (o) (i) of Regulation Kingdom), Article 46 of Regulation No No 1408/71 as having the same scope as 1408/71 should normally be applied. the concept of a person's being subject to the legislation of a single Member State, the question whether a person is to be Where a United Kingdom institution is treated as "insured" in that sense is a competent because at the time of the question of fact. The question must be claim for a benefit the worker is

According to the Council, entitlement to sickness benefits and invalidity benefits are separate rights even if under United Kingdom law a worker must first receive sickness benefits for a given period of The only cases where entitlement to time before he can qualify for an United Kingdom invalidity benefit would invalidity pension. not be regarded as having been acquired by virtue of national legislation alone are those in respect of which it had been necessary to have recourse to Article 40 (3) of Regulation No 1408/71. An This case is different from the situation invalidity pension would in such a case referred to in the judgment of the Court become payable under Article 46 (2) of in Case 24/75 Petroni v ONPTS [1975] the regulation and Article 46 (3) would ECR 1149, according to which a worker be applicable. cannot be deprived of rights to benefit to which he is entitled purely under national law without having recourse to the Community provisions since, as appears from the documents of reference in this case, Mr Coppola has no right to The Insurance Officer therefore suggests United Kingdom sickness benefits under that the fourth question should be United Kingdom legislation alone. Since answered in the sense that Article 46 (3) Mr Coppola was last employed in Italy, of Regulation No 1408/71 could apply it is for the Italian institution to take only in cases where in order to acquire account of insurance periods or periods title to a benefit to which Article 46 of employment or of residence applies, it is necessary, within the completed under the legislation of any meaning of Article 51 (a) of the EEC other Member State in accordance with

The Commission emphasizes in the first place that the issues of sickness and invalidity benefits should be treated As regards the invalidity benefits, Article entirely separately, in the same way as is 40 would appear to be pertinent in this done in Regulation No 1408/71. case. In this context, Article 46 (3) provides that a beneficiaiy is not entitled to a benefit higher than the highest Article 18 (1) of Regulation No 1408/71 theoretical amount that would be relating to the aggregation of periods of payable by the competent institution if insurance, employment or residence, is to the worker had completed all his be found in the chapter dealing with insurance periods or periods of residence sickness benefits. under the law of that Member State. In appropriate cases, the benefit which a beneficiary may claim is reduced. There is nothing in paragraph (1) of that article which specifies which Member State is being required to comply with the instructions contained in the second half of that paragraph. Article 1 (o) of Although Article 46 (3) has been Regulation No 1408/71 contains a declared incompatible with Article 51 of detailed definition of the "competent the EEC Treaty to the extent to which it institution". That definition does not of causes a diminution of the rights which itself provide an answer to the question the person concerned could enjoy in a as to the identity of the Member State to Member State by virtue of the which Article 18 (1) refers. However, application of national legislation, that according to Article 13 (1) of Regulation article is still valid where it operates to No 1408/71, under Title II "Determi- reduce a benefit which is acquired by nation of the legislation applicable", a means of aggregation. In the present worker is subject to the legislation of a case, Mr Coppola is entitled to a United single Member State only, namely, Kingdom invalidity pension only by according to paragraph (2) of that reason of the operation of Community article, the legislation of the Member law. No factor therefore is disclosed in State in the territory of which the this case to indicate that Article 46 (3) is worker is employed. That provision of invalid otherwise than to the extent Article 13 must apply across the board stated by the Court in Cases 24/75 unless expressly displaced by some other Petroni (cited above) and 26/76 Strebl provision. [1977] E C R 2 1 1 .

residence, the competent institution is (Section 2). Section 2 also covers the bound to take account of such periods case of a worker subject to both types of completed in other Member States in legislation. The latter section appears to order to ensure that a claimant acquires be applicable in a case such as this one. a right to benefit. Consequently, the provisions of Article 40 and those of Chapter 3 of Title III on aggregation and apportionment are That interpretation is supported by the applicable to the facts of the case. provisions of Article 16 (3) of Regulation No 574/72 which deals with the pro- cedures to be followed in the case of a In view of the different treatment of claim for sickness benefit, and which sickness and invalidity benefits under refers to the existence of a "competent Regulation No 1408/71, Article 18 is State" and "periods of insurance pre- not relevant to consideration of the viously completed under the legislation Community provisions on invalidity of any other Member State". Those benefit. It is rather the provisions of provisions reinforce the view that, in the Article 40 (3) of Regulation No 1408/71 case of a claim for sickness benefit, the which are to be applied in such a case. legislation should be that of the last Member State in which the worker was employed and that the only periods to Accordingly, the reply to the fourth be taken into account are those "pre- question should be that the interpretation viously", and not those subsequently, of the provisions of Regulation No completed. 1408/71 with regard to invalidity benefits does not depend on the in- terpretation of the provisions on sickness According to the Commission, the benefits. It is the appropriate provisions answer to the first three questions must of Chapter 2 and, by reference, therefore be that, where a claimant for Chapter 3, and not Chapter 1 of Title sickness benefit in a particular Member III of Regulation No 1408/71, which State is employed in that Member State, are relevant to the consideration of it is the competent institution in that invalidity benefits. Member State which is required, to the extent necessary, to take account of periods of insurance previously completed in another Member State; Article 18 (1) of Regulation No 1408/71 Ill — Oral procedure is not addressed to that other Member State.

4 In accordance with Community legislation, the application for Italian invalidity benefit was passed to the United Kingdom authorities to enable them to consider whether Mr Coppola was entitled to United Kingdom invalidity benefit. However, the Insurance Officer considered that Mr Coppola did not satisfy the medical conditions as to the degree of incapacity for work laid down by United Kingdom legislation for the award of sickness or invalidity benefits. He therefore refused to grant him a United Kingdom invalidity pension. Following an appeal by Mr Coppola, that decision was upheld by the local tribunal after a further medical report.

JUDGMENT OF 12. 1. 1983 — CASE 150/82

5 The case was brought before the Social Security Commissioner who took the view that he had to consider not only whether Mr Coppola was entitled to invalidity benefit but also whether he was entitled to sickness benefit. Since consideration of Mr Coppola's entitlement to United Kingdom sickness and invalidity benefits raised certain questions of Community law, the Social Security Commissioner stayed the proceedings and referred a number of questions to the Court for a preliminary ruling concerning the relevant provisions of Regulation No 1408/71 of the Council.

Sickness benefit

6 As regards sickness benefit, the Social Security Commissioner found that with respect to one or possibly two periods during which Mr Coppola was in hospital or convalescent, as shown by his file, namely from 30 March to 15 May 1975 and from 22 to 26 June 1976, the medical conditions regarding incapacity for work were satisfied. But Mr Coppola did not satisfy, merely by his contributions to the United Kingdom social security scheme during the period to be taken into account for that purpose, the contribution conditions laid down by United Kingdom legislation. The Social Security Commissioner nevertheless raised the question whether the contributions paid by Mr Coppola to the Italian social security scheme after his return to Italy might be taken into account by virtue of the provisions of Regulation No 1408/71 of the Council.

io That definition must be applied within the framework of Article 18 (1), in the light of the general rule contained in Article 13 of Regulation No 1408/71, with regard to determination of the applicable legislation. Article 13 (1) establishes the principle that "A worker to whom this regulation applies shall be subject to the legislation of a single Member State only". Article 13 (2) (a) provides that "a worker employed in the territory of one Member State shall be subject to the legislation of the State even if he resides in the territory of another Member State".

1 1 By virtue of that provision, and in the absence of contrary provisions referring to the particular type of benefit in question, only the legislation of the State in whose territory the worker is employed is therefore applicable. Although that provision does not expressly mention the case of a worker who is not employed when he seeks sickness benefit, it is appropriate to interpret it as meaning that, where necessary, it refers to the legislation of the State in whose territory the worker was last employed.

JUDGMENT OF 12. 1. 1983 — CASE 150/82

Invalidity benefit

H The fourth question seeks essentially to determine whether a Member State may, pursuant to Article 46 (3) of Regulation N o 1408/71, validly reduce invalidity benefit due under its legislation following a period of incapacity for work during which the worker was granted benefit for that same incapacity, including benefit from another Member State, which is to be taken into consideration in accordance with Article 40 (3) of that regulation.

COPPOLA v INSURANCE OFFICER

is When asking that question, the Social Security Commissioner has in mind the judgment of the Court of 21 October 1975 in Case 24/75, Patroni [1975] ECR 1149, according to which Article 46 (3) of Regulation No 1408/71 is incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on the overlapping of two benefits acquired in different Member States by a reduction in the amount of a benefit acquired under national legislation alone.

JUDGMENT OF 12. 1. 1983 — CASE 150/82

18 It is therefore necessary to reply that invalidity benefit due under the legislation of a Member State following a period of incapacity for work during which the worker received benefit in respect of that incapacity, including benefit from another Member State, which is to be taken into account pursuant to Article 40 (3) of Regulation N o 1408/71 may, where appropriate, be validly reduced pursuant to Article 46 (3) of that regulation.

Costs

19 The costs incurred by the Council and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings 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,

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

Delivered in open court in L u x e m b o u r g on 12 J a n u a r y 1983.

P. H e i m U. Everling Registrar President of the Third Chamber

OPINION OF ADVOCATE GENERAL SIR G O R D O N S L Y N N D E L I V E R E D O N 16 D E C E M B E R 1982

My Lords, national born in Italy in 1931. He was insured in Italy from 1952 to the end of 1958; worked for 11 months in the This case was referred to die Court by Federal Republic of Germany and was a Social Security Commissioner in insured in the United Kingdom from 11 London, Mr J. G. Monroe, for a prel- October 1960 to 12 August 1973. He iminary ruling on the interpretation and returned to Italy where he was insured validity of Articles 18 (1) and 46 (3) of from February 1974. He fell sick in Italy Council Regulation No 1408/71 of 14 and claimed Italian invalidity benefit on June 1971 on the application of social 30 November 1974. This was granted security schemes to employed persons, with effect from 1 December 1974, on (Official Journal, English Special Edition the basis of partial invalidity. As he had 1971, p. 416). been insured both in the United Kingdom and in Italy, a notice of his claim in Italy was given to the It appears from the reference and from Department of Health and Social the observations of the Insurance Officer Security in London (hereinafter called appointed under the United Kingdom the "DHSS") which treated it as a claim legislation that the claimant is an Italian for British benefit. This was done, the