C-232/82

OFFICE NATIONAL DE L'EMPLOI [ N a t i o n a l E m p l o y m e n t Office] ( O N E M )

concerning the interpretation of Regulation ( E E C ) N o 1 4 0 8 / 7 1 of the Council on the application of social security schemes t o employed persons and their families moving within the C o m m u n i t y (Official J o u r n a l , English Special Edition 1971 (II), p . 4 1 6 ; codified version: Official J o u r n a l 1980, C 138, p . 1) a n d R e g u l a t i o n N o 5 7 4 / 7 2 laying d o w n the p r o c e d u r e for implementing Regulation N o 1408/71 (Official J o u r n a l , English Special Edition 1972 (I), p . 159),

T H E C O U R T (Third C h a m b e r )

composed of: U . Everling, President of C h a m b e r , Lord M a c k e n z i e Stuart and Y. G a l m o t , J u d g e s ,

Advocate G e n e r a l : P . V e r L o r e n van T h e m a a t Registrar: J. A. P o m p e , D e p u t y Registrar

gives the following

The facts of the case, the course of received from 28 April to 4 June 1975 the procedure and the observations and again from 1 September 1977. submitted pursuant to Article 20 of the Protocol on the Statute of the Court of However, the fact that the Italian Justice of the EEC may be summarized invalidity pension continued to be paid as follows: to Mrs Baccini constituted, under the third paragraph of Article 141 of the Royal Decree of 20 December 1963 on employment, as amended on 11 I — Facts and p r o c e d u r e September 1969, a legal presumption of incapacity for work which excluded any Mrs Baccini, an Italian national, worked entitlement to unemployment benefit. By first in Italy and then in Belgium. In decision dated 8 December 1978, taken Belgium she received an invalidity on the basis of that provision, the allowance. director of the regional office of the Office National de l'Emploi [National The Istituto Nazionale della Previdenza Employment Office] at La Louvière Sociale [National Welfare Institution, withdrew Mrs Baccini's entitlement to hereinafter referred to as "the Italian unemployment benefit and directed that institution"] was notified of the decision she should repay the sums which he of the Institut National d'Assurance considered she had improperly received. Maladie-Invalidité [National Sickness and Invalidity Insurance Institution, here- Mrs Baccini instituted proceedings inafter referred to as "the Belgian against that decision before the Tribunal institution"] recognizing Mrs Baccini's du Travail [Labour Tribunal], Charleroi, invalidity. Thereupon, having regard to and then brought proceedings by way of the terms of Article 40 (4) of Regulation appeal before the Cour du Travail No 1408/71, which states that: [Labour Court], Mons, which, by judgment of 3 April 1981, in substance "A decision taken by an institution of a asked the Court of Justice : Member State concerning the degree of invalidity of a claimant shall be binding "First, whether Article 51 of the EEC on the institution of any other Member Treaty and Regulations Nos 1408/71 State . . .", and 574/72 must be interpreted in such a way that is in accordance with the aims the Italian institution granted Mrs of the Treaty to refuse a migrant worker Baccini an apportioned Italian invalidity unemployment benefit pursuant to rules pension, which was calculated by aggre- of national law against the overlapping gating the Italian and Belgian insurance of benefits in a State in which he is no periods. longer recognized as unfit for work on the ground that he is in receipt of an Having become fit for work again in apportioned invalidity pension from Belgium, Mrs Baccini thus regained her another Member State which has been right under Belgian legislation to determined with regard to the unemployment benefit, which she Community regulations;

" 1 . If the workers referred to in Article "Article 51 of the EEC Treaty, Regu- 145 ^(workers entitled to a pension lation No 1408/71 of the Council of 14 before reaching 65 years for men June 1971 on the application of social and 60 years for women) are in security schemes to employed persons actual receipt of a pension the daily and their families moving within the rate of which is lower than the daily Community and Regulation N o 574/72 rate of unemployment benefit . . . fixing the procedures for implementing increased by 40% . . . they shall be that regulation must be interpreted as entitled to unemployment benefit in meaning that where, under the national an amount equal to the difference legislation of a Member State, the right between the said rate and the daily of a migrant worker to unemployment rate of pension but not exceeding benefit depends on his fitness for work the amount of unemployment benefit 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 2. . . . without prejudice to Article 142 that he is in receipt in another Member (1) shall apply to an unemployed State of an aggregated and apportioned person who is entitled to: invalidity pension determined in accordance with Community rules." (1) . . .

(2) . . . On the basis of that preliminary ruling by the Court of Justice, the Cour du Travail, Mons, considering that the (3) . . . (Royal Decree of 11 Office National de l'Emploi was September 1969, Article 2) a precluded from applying Article 141 of benefit granted under a foreign the Royal Decree of 20 December 1963 sickness and insurance scheme by relying on the fact that Mrs Baccini on account of incapacity for was in receipt of an Italian invalidity work of less than 50% not benefit, annulled the contested caused by an accident at work or administrative decision by judgment of 3 occupational disease."

"For the purposes of the European Community legislation, does the decision Pursuant to Article 20 of the Protocol on 'concerning the degree of invalidity of a the Statute of the Court of Justice of claimant', any 'multinational' effects of the EEC, written observations were which are governed by Article 40 (4) of submitted by Mrs Baccini, represented Regulation No 1408/71, include a by D. Rossini, a member of the decision that there is no invalidity taken after a decision has established Associazione Christiane Lavoratori invalidity? Does not the decision Italiani, Brussels, Social and Legal 'concerning the degree of invalidity' Department for Migrant Workers; by refer as much to a decision that there is the Office National de l'Emploi, no invalidity as to a decision establishing represented by Léon Goffin of the invalidity? Is not Article 40 (4), which is Brussels Bar; and by the Commision of expressed in general terms and appears the European Communities, represented under the heading 'General provisions', by its Legal Adviser, Jean Amphoux, wider in scope than Article 44 of the assisted by Francis Herbert of the implementing regulation, No 574/72? Brussels Bar, acting as Agents. Must not Anicie 40 (4) be interpreted in accordance with logic and reason in the light of the doctrine of the 'acte contraire' or 'parallélisme des formes' Upon hearing the report of the Judge- (see Aubry and Drago's Traité du Rapporteur and the views of the Advocate General, the Court decided to

JUDGMENT OF 10. 3. 1983 — CASE 232/82

open the oral procedure without any sion, in total or within the limits laid preparatory inquiry. down in the first paragraph of Article 146 of the Royal Decree of 20 December 1963. Pursuant to Article 95 (1) and (2) of the Rules of Procedure, the Court, by order of 19 January 1983, decided to assign the case to the Third Chamber. The Office National de l'Emploi, having set out the facts of the dispute, the procedure prior to the first reference to the Court of Justice for a preliminary II — S u m m a r y of the obser- ruling and the reasons for the second vations submitted to the reference, stresses that according to the Court terms used by the Council the provisions of Article 40 of Regulation No 1408/71 are general provisions.

In the opinion of the Office National de According to Mrs Baccini, in this case l'Emploi, that interpretation seems to be account should be taken of the fact that borne out by two factors: on the one the risks of invalidity and unemployment hand, the text of Article 40 (4) itself, materialized in Belgium and that the which makes no distinction between a decision establishing that she was no positive or negative decision of the auth- longer unfit for work was taken by the orities of the competent State and, on Belgian authorities. the other, the principle of the "parallélisme des compétences", laid down by the French Conseil d'Etat Mrs Baccini considers that the solution [State Council] in judgments cited in of the dispute now depends exclusively particular by Aubry and Drago in Traité on a question of national law which is a du Contentieux Administratif (1962, matter for the national court alone. That paragraph 1058), a work to which the question concerns the amount of the Cour du Travail refers. Thus the Conseil benefits to be awarded and raises the d'État stated that where a text does not issue whether the Belgian unemployment indicate the authority empowered to benefit may be recieved in addition adopt the 'acte contraire' to a certain to the apportioned Italian invalidity pen- measure, that is to say the measure by

BACCINI v ONEM

which it is amended or revoked, such for a preliminary ruling and, finally, power must be attributed to the authority whether there has been a misuse of authorized to adopt the initial measure." procedure.

The Commission, after setting out the According to the Commission, the Court's decision in Case 79/81 and the question whether the maintenance of the reasons which underlie the second Italian benefit is lawful can be reference for a preliminary ruling, states determined only on the basis and by that before answering the questions reference to the provisions of submitted by the Cour du Travail it is Community law. If that question is necessary to make certain preliminary answered in the affirmative, Community remarks concerning first, the provisions law, as the Court stated in Case 79/81, of Belgian law which the Cour du does not permit the withdrawal of the Travail is seeking to apply, secondly, Belgian benefit. If it is answered in the certain of the grounds for the reference negative, Article 146 of the Belgian

JUDGMENT OF 10. 3. 1983 — CASE 232/82

In answer to the questions submitted by the Cour du Travail, the Commission considers that according to the text, The final preliminary observation refers context and object of Article 40 (4), the to the fact that, according to the grounds "decision . . . concerning the degree of set out in the judgment making the invalidity" to which that provision refers reference, the decision of the Court of covers solely the decision which Justice ought to enable the Belgian court establishes the invalidity and gives rise to "indirectly to determine . . . whether the the right to payment of benefits. Italian benefit has been wrongly paid". Since the purpose of the reference for a preliminary ruling has been described in this way, the Commission argues that two questions should be considered: Article 40 of Regulation N o 1408/71 first, whether the legislation of one lays down rules on entitlement to Member State may be challenged by invalidity benefits and on the grant relying upon Community law before a thereof for workers who are simul- court in another Member State and, taneously subject to type A legislation secondly, whether the Court of Justice (legislation based on risk) and type B has jurisdiction to give a ruling in the legislation (legislation based on the framework of proceedings for a pre- duration of periods of insurance). In the liminary ruling on the compatibility of Commission's opinion, it necessarily national rules with Community rules follows from the object of Article 40 that where the application of national law, Article 40 (4) refers to the decision by indirectly called in question by the court which invalidity is established. making the reference, does not normally fall within its jurisdiction. According to the Commission, the Court of Justice answered the first question in its That interpretation is confirmed by judgments of 11 March 1980 in Case Annex IV to Regulation N o 1408/71, 104/79 Foglia v Novello [1980] ECR which relates to the concordance 745, and of 16 December 1981 in Case between the legislation of Member States 244/80 Foglia v Novello [1981] ECR on conditions relating to the degree of 3045, and more especially in paragraph invalidity, established on 'the basis of

According to the Commission, it follows from the object of the Community rules that they do not cover the case of a decision which, by establishing that there is no longer incapacity for work, constitutes the basis for a decision III — O r a l p r o c e d u r e altering or withdrawing invalidity benefit or refusing entitlement to a benefit of a different kind.

At the sitting on 3 March 1983 oral argument was presented for the Office The Commission considers that the National de l'Emploi by Léon Goffin of principle of "parallélisme des com- the Brussels Bar and for the Commission pétences" contained both in Belgian and of the European Communities by its in French administrative law cannot Legal Adviser, Jean Amphoux, assisted invalidate the interpretation of Article 40 by Francis Herbert of the Brussels Bar, (4) which it puts forward, inasmuch as acting as Agents. under that principle the authority empowered to adopt a given ad- ministrative measure has jurisdiction to amend that measure or adopt a contrary The Advocate General delivered his measure, whereas the question for a pre- opinion at the same sitting.

JUDGMENT OF 10. 3. 1983 — CASE 232/82

Decision

1 By a judgment dated 3 September 1982, which was. received at the Court on 8 September 1982, the Cour du Travail [Labour Court], Mons, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty questions on 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; codified version: Official Journal 1980, C 138, p. 1) and Regulation N o 574/72 of the Council laying down the procedure for implementing Regulation N o 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159).

BACCINI v ONEM

5 Relying upon the fact that the Italian invalidity pension continued to be paid to Mrs Baccini and that under the third paragraph of Article 141 of the Royal Decree of 20 December 1963, as amended, there was therefore a legal presumption of incapacity for work which excluded any entitlement to unemployment benefit, the director of the regional office of the Office National de l'Emploi at La Louvière on 8 December 1978 withdrew Mrs Baccini's unemployment benefit and directed that she should repay the sums improperly received.

6 The Cour du Travail, Mons, before which Mrs Baccini appealed against a judgment of the Tribunal du Travail [Labour Tribunal], Charleroi, decided by judgment of 3 April 1981 to refer to the Court two questions on the interpretation of Article 51 of the EEC Treaty and of Regulations Nos 1408/71 and 574/72.

7 In its judgment of 23 March 1982 (Case 79/81 [1982] ECR 1063), the Court answered those questions by ruling:

"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 persons and their families moving within the Community and Regulation N o 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 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."

(2) . . .

(3) . . . (Royal Decree of 11 September 1969, Article 2) a benefit granted under a foreign sickness and insurance scheme on account of incapacity for work of less than 50% not caused by an accident at work or occupational disease."

9 The Cour du Travail, Mons, considered that in order to determine the applicability of Article 146 to this case, it had to ascertain whether, having regard to the terms of Article 40 (4) of Regulation N o 1408/71, Mrs Baccini was lawfully entitled to the Italian benefit. For that purpose, it referred the following question to the Court for a preliminary ruling:

n According to well-established case-law, the Court may not in the framework of the procedure for a preliminary ruling give a ruling on the application of provisions of national law or on the relevance of the request for a pre- liminary ruling. In the framework of the division of jurisdiction between the national court and the Court of Justice laid down in Article 177 of the Treaty, it is indeed for the national court to assess, with full knowledge of the facts of the case, the relevance of questions of law raised by the dispute which has been brought before it and the necessity for a preliminary ruling in order to enable it to give judgment.

i2 Article 40 (4) of Regulation No 1408/71 provides: "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 legislation of these States on conditions relating to the degree of invalidity is acknowledged in Annex IV." As the Court stated in its judgment of 23 March 1982, before the adoption on 17 September 1981 of Council Regulation N o 2793/81 (Official Journal 1981, L 275, p. 1), which amended Regulation N ó 1408/71, Annex IV accepted the concordance between the Belgian and Italian legislation on conditions relating to the degree of invalidity.

1 3 In order to define the meaning and scope of Article 40 (4), it is necessary to interpret that provision by reference only to the Community regulations and to Articles 48 and 51 of the Treaty, which constitute their basis, their framework and their bounds.

is It follows from the considerations set out above that the answer to the questions submitted by the Cour du Travail, Mons, should be that Article 40 (4) of Regulation N o 1408/71 must be interpreted as meaning that "the

BACCINI v ONEM

decision . .. concerning the degree of invalidity" to which that provision reters covers exclusively a decision recognizing invalidity and not a decision establishing that there is no invalidity at a later date.

Costs

.9 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.

20 As these proceedings are, in so far as the parties to the main action are concerned in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

For the Registrar

H. A. Rühi U. Everling Principal Administrator President of the Third Chamber