C-391/93

Allgemeine Ortskrankenkasse München,

on the interpretation of Articles 25(1) and (4) and 69(l)(c) of Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

* Language of the case: German.

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T H E COURT (First Chamber),

— the Commission of the European Communities, by D. Gouloussis, Legal Adviser, and H. Kreppel, national civil servant on secondment to the Legal Ser- vice, acting as Agents,

having regard to the Report for the Hearing,

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after hearing the oral observations of the applicant in the main proceedings, represented by J. Ståhlberg, and the Commission, represented by D. Gouloussis and J. Sack, Legal Adviser, at the hearing on 30 March 1995,

after hearing the Opinion of the Advocate General at the sitting on 11 May 1995,

PERROTTA ν ALLGEMEINE ORTSKRANKENKASSE MÜNCHEN

other Member States in order to seek employment there shall retain his entitlement to such benefits' under the following conditions: he must register as a person seek- ing work and make himself available to the employment services of the competent State for, in principle, at least four weeks after becoming unemployed (Article 69(1 )(a)); he must register with the employment services of each of the Member States to which he goes and undergo the control procedure organized therein (Article 69(l)(b)). Once those conditions have been satisfied, he retains entitlement to benefits for a maximum period of three months from the date when he ceased to be available to the services of the State which he left, provided that the total dura- tion of the benefits does not exceed that of the period of benefits to which he was entitled under the legislation of that State (Article 69(1 )(c)).

4 Article 69(2) provides that if the person concerned returns to the competent State before the expiry of the period referred to above, he is to continue to be entitled to benefits under the legislation of that State; he is to lose all entitlement if he does not return there before the expiry of that period, save in exceptional cases where that time-limit may be extended by the competent services or institutions.

5 In addition, with regard to the grant of sickness benefits Article 25(1) of that regu- lation provides:

'An unemployed person who was formerly employed or self-employed, to whom the provisions of Article 69(1) ... apply, and who satisfies the conditions of the leg- islation of the competent State for entitlement to benefits in kind and in cash, ... shall receive for the period provided under Article 69(1 )(c):

'Without prejudice to any provisions of the legislation of a Member State which permit an extension of the period during which sickness benefits may be granted, the period provided for in paragraph 1 may, in cases oí force majeure, be extended by the competent institution within the limit fixed by the legislation administered by that institution.'

7 Finally, Article 26(6) of Council Regulation (EEC) N o 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) N o 1408/71, as amended and updated by Regulation N o 2001/83, cited above, provides:

'In the cases defined in Article 25(4) of the regulation, the sickness insurance insti- tution of the place to which the unemployed person has gone shall inform the competent sickness insurance institution and the competent unemployment insur- ance institution that it considers that the conditions justifying the extension of the period during which benefits in cash and in kind may be granted are satisfied, stat- ing the grounds on which its opinion is based, and shall attach to the communi- cation it sends to the competent sickness insurance institution a detailed report

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from the examining doctor on the condition of the patient, indicating the probable period during which the conditions for applying Article 25(4) of the regulation will exist. The competent sickness insurance institution shall then take the decision as to the extension of the period during which benefits may be granted to the sick unemployed person.'

12 Before taking a decision, the sickness fund consulted the labour office, requesting a ruling by it on a possible extension of the period in accordance with Article 69(2) of Regulation N o 1408/71. The labour office, however, refused to take a decision to that effect, considering that what was at issue was an application for the exten- sion of the period for payment of sickness benefits under Article 25(4) of that regulation which was a matter for the sickness fund. By decision of 29 April 1986, the sickness fund dismissed the objection on the ground that the entitlement to cash sickness benefits expired at the end of the authorized period of stay in a Member State other than the competent State and that an extension of the period could be justified only 'in cases of force majeure' within the meaning of Article 25(4) of Regulation N o 1408/71, which could not cover the applicant's illness.

1 3 Mr Perrotta brought an action before the Sozialgericht (Social Court) against the sickness fund's decision. He appealed against the dismissal of that action to the Landessozialgericht (Higher Social Court) which dismissed the appeal on the ground that illness or incapacity for work owing to illness did not as such consti- tute a case of force majeure and that the illness afflicting Mr Perrotta, namely — according to the medical expert heard by that court — rheumatoid arthritis of the small joints of the hand and degenerative changes to the spinal column, was not so serious as to have prevented him from returning to Munich in due time by the usual means of transport before the three-month period had expired.

(3) Must a case of force majeure within the meaning of Article 25(4) of Regulation (EEC) N o 1408/71 be assumed if the unemployed person who is unable to

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work owing to his illness has not returned to the competent State within the three-month period, even though he was able to travel?'

1 5 The first issue which must be considered is Mr Perrotta's argument that Article 25(1) of Regulation N o 1408/71 precludes sickness insurance cover only where the illness arises after the three-month period referred to in Article 69(1 )(c) has expired. In his view, the competent State remains liable to cover illness which occurs before that period has expired and which extends beyond it, notwithstand- ing the fact that the relevant legislation provides that the grant of benefits is to be conditional on residence in the national territory.

16 Mr Perrotta therefore considers that the questions referred by the national court, in so far as they assume that Article 25(1) of Regulation N o 1408/71 does not in this case entitle him to continue to receive benefits after the three-month period has expired, are based on an incorrect interpretation of that provision and are accordingly not relevant for the purposes of resolving the dispute.

19 Neither Article 25(4) of Regulation N o 1408/71 nor Article 26(6) of Regulation N o 574/72 requires the unemployed person to lodge a formal application for extension of the period in respect of which sickness benefits are payable. More- over, among the cases of illness which may justify extending the period, some may by their nature prevent the lodging of a formal application.

20 In circumstances such as those of this case, the competent institution may reason- ably assume that an unemployed person who, just before the expiry of the three- month period for which he has been authorized to go to another Member State,

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applies through the sickness fund of that State for cash sickness benefits, wishes to be able to continue to receive those benefits throughout his illness and conse- quently wishes the period in respect of which those benefits are payable, referred to in Article 25(1) of the regulation, to be extended.

21 The answer to the first part of the first question must accordingly be that Article 25(4) of Regulation N o 1408/71 requires the competent institution to decide on a request for the extension of the period in respect of which sickness benefits are payable even though that request has not been made expressly by the unemployed person but may be inferred from an application for cash sickness benefits lodged shortly before the expiry of the period referred to in Article 25(1) of the regulation with the sickness insurance institution of the place where the unemployed person has gone.

25 The Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate (see Case C-124/92 An Bord Bainne Cooperative and Compagnie Inter-Agra ν Intervention Board for Agricultural Produce [1993] ECR 1-5061, paragraph 10).

26 In this case, the reference in Article 25(4) of the regulation to the concept of force majeure is intended to limit the cases in which sickness benefits continue to be payable after the expiry of the period referred to in Article 25(1) to an unemployed person who has gone to a Member State other than the competent State.

27 The consideration to be given to the unemployed person's state of health means that the concept of force majeure referred to in Article 25(4) should not be limited to the absolute impossibility of returning to the competent State. That concept must be understood more broadly as designating abnormal and unforeseeable cir­ cumstances, outside the control of the unemployed person, the consequences of which, in spite of the exercise of all due care, could not be avoided except at the cost of excessive sacrifice.

28 In ascertaining whether there is a case of force majeure within the meaning of Arti­ cle 25(4), the competent institution must accordingly conduct an appraisal of the circumstances of the case in order to determine in particular whether return to the

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journey, but also to the severity of the ordeal which he would thereby be forced to endure, given, first, that the concept of force majeure cannot be limited to the absolute impossibility of returning to the competent State and, second, that phys- ical ability to travel cannot as such preclude a finding of force majeure.

Costs

33 The costs incurred by the German and Italian Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main pro- ceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

2. In ascertaining whether there is a case of force majeure within the meaning of Article 25(4) of Regulation N o 1408/71, the competent institution must conduct an appraisal of the circumstances of the case in order to determine whether the unemployed person may reasonably be required to return to the competent State, regard being had not only to the risks that his state of health may significantly deteriorate or his chances of recovery diminish as a result of the return journey, but also to the severity of the ordeal which he would thereby be forced to endure, given, first, that the concept of force majeure cannot be limited to the absolute impossibility of returning to the competent State and, second, that physical ability to travel cannot as such preclude a finding of force majeure.

Jann Edward Sevón

Delivered in open court in Luxembourg on 13 July 1995.

R. Grass P. Jann Registrar President of the First Chamber

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