JUDGMENT OF 9. 3. 1976 — CASE 108/75 BALSAMO v INSTITUT NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ

In Case 108/75 Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du travail of Brussels for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, M. Sørensen and Lord Mackenzie Stuart, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The judgment making the reference and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and procedure

Mr Giovanni Balsamo of Italian nationality, after working as a miner in Belgium from 1946 to 1958, worked in Italy as an employed person until 31 October 1968.

On 26 October 1968, that is, five days before that date, he claimed an invalidity pension from the INPS (Istituto Nazionale della Previdenza Sociale) in his place of residence and on 10 June 1970 the INPS, after granting him the proportional part of the Italian pension, sent his file to the competent bodies in Belgium so that he should be granted the proportional part of the Belgian pension applicable to miners and assimilated workers.

By a decision of 8 October 1974, the Belgian institution dismissed this claim relying on the fact that Mr Balsamo had not, when he submitted his claim to the INPS on 26 October 1968, ceased all work, a condition to which Article 56 (1) of the Belgian Law of 9 August 1973 subjected the grant of benefits.

That provision is worded as follows:

‘A worker who has ceased all work and whose injuries and functional disturbances are accepted as causing a reduction in his earning capacity at a rate equal to or less than one third of what a person in the same circumstances of life and having the same duties could earn by his work in the group of occupations which includes the occupation in which the person concerned was engaged at the time when he became incapable of working or in the various occupations in which he has or could have been engaged in consequence of his vocational training, shall be recognized as incapable of working within the meaning of the present law.’

Mr Balsamo appealed against that decision of rejection to the Tribunal du travail of Brussels.

He claimed in particular that he had ceased all work on 31 October 1968, and that he was seeking the payment of the proportion of the Belgian pension only as from 1 November 1968, that is to say, as from the time when the conditions laid down by the Law were fulfilled.

According to Mr Balsamo, the defendant in the main action could very well, after his claim had been sent on 10 June 1970, have determined the right to the Belgian pension as from 1 November 1968, especially as the Conseil medical de l'invalidité which comes under the Institut national d'assurance maladie-invalidité, has acknowledged his incapacity to work for the period from 31 October 1968 to 31 March 1976, the date on which he will have a right to an old-age pension.

The Tribunal du travail, considering that the proceedings raised a question of interpretation of Community law, by a judgment of 6 October 1975, registered at the Court of Justice on 13 October 1975, asked the Court of Justice to give a ruling on ‘How, precisely, must Article 28 (1) (f) and (g) of Regulation No 3 and Article 49 of Regulation No 1408/71 of the Council of the European Economic Community be interpreted so as to establish whether the application of these articles requires that a fresh claim for a pension be submitted each time according to the procedure laid down in Article 30 (1) of Regulation No 4 and Article 36 (1) of Regulation No 574/72 of the Council of the European Economic Community’.

The Court, on hearing the report of the Judge-Rapporteur and the views of the Advocate-General, decided that it was not necessary to hold any preparatory inquiry.

Mr Balsamo, the Institut national d'assurance maladie-invalidité and the Commission submitted their written observations.

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Observations of Mr Balsamo

Mr Balsamo considers that the Belgian institution should have granted him an invalidity pension as from 1 November 1968, the date on which he had ceased all work. If, in accordance with Article 28 (1) (a) of Regulation No 3 he had to satisfy the basic conditions laid down by the Belgian legislation in order to be entitled to an invalidity pension, that is, in particular, to cease working, it could not be required of him that he should satisfy this condition at the time of making his claim for a pension in Italy, since the legislation of that Member State does not make the lodging of a claim subordinate to that condition. In these circumstances to require that at the time of ceasing work he should make a second and new claim, would be equivalent to requiring a formality which is prescribed neither by the Italian law applicable under Article 30 (1) of Regulation No 4 nor even by Belgian law, because Belgian legislation on sickness and invalidity insurance does not in fact provide for the formality of making a claim for an invalidity pension. As to the Italian legislation, which is applicable under Article 30 (1) of Regulation No 4, it does not make the acceptance of a claim for a pension subject to ceasing all work.

It is at the time when the matter is referred to it by the transmission of the file, which is done by the institution of the place of residence, that the Belgian institution will check whether the person concerned is still working or has ceased all work on a particular date. If it appears that the claimant has ceased all work, the Belgian institution must determine the right to a pension as from the date of cessation of work. Furthermore, the provisions of Article 28 (1) (f) and (g) of Regulation No 3 and of Article 49 (2) of Regulation No 1408/71 enable the divergencies existing between the Belgian and Italian legislation to be overcome since they authorize a new calculation of the benefits as and when the conditions required by another legal system are satisfied.

Mr Balsamo suggests the following answer to the question asked by the Tribunal du travail of Brussels:

‘The application of Articles 28 (1) (f) and (g) of Regulation No 3 and Article 49 of Regulation No 1408/71 of the Council does not require a new claim to be made on each occasion in accordance with the procedures laid down in Article 30 (1) of Regulation No 4 and Article 36 (1) of Regulation No 574/72. It is sufficient that the competent institutions should give all necessary information with a view to fixing the commencement of payment of benefits as from the date on which the conditions for entitlement required by either system are fulfilled.’

Observations of the INAMI

The INAMI considers that the Belgian institution, on receiving the claim for Belgian benefits, could not reject it on the basis of Article 56 (1) of the Law of 9 August 1963, because according to the wording of Article 28 (1) (a) of Regulation No 3 it had to consider the claim in accordance with Belgian legislation, taking account of the situation existing at the time of the making of the claim.

The INAMI maintains that under Article 28 (1) (f) the insured person remains, in the present case, entitled to payment by the Italian insurance institution alone until the moment when, having ceased work and being capable of being entitled to the Belgian invalidity benefits, he made a new claim.

A formal requirement such as making the claim in accordance with the rules of the country of permanent residence cannot adversely affect the fundamental condition of entitlement which is constituted by the fact of having to call upon benefits when there is incapacity for work, expressed by ceasing work, and only in that case.

The defendant in the main action maintains that it would be the same within the framework of Regulations Nos 1408/71 and 574/72 which replaced Regulations Nos 3 and 4. The insured person who on the date of his first claim does not satisfy a fundamental condition of the Belgian legislation must, if he is to satisfy that condition, make another claim for benefit.

Observations of the Commission

As regards Article 28 (1) (f) and (g), the Commission considers that this provision is not applicable to the situation in which Mr Balsamo finds himself. In fact that article refers to an automatic revision of a benefit, paid solely under the legislation of the Member State where the right to benefit is acquired, when the conditions required by either legislative system to which the worker was subject prove to be satisfied, whereas they were not at the time when the right was acquired under the first legislative system.

That provision does not therefore refer to the Belgian benefit: at the time when the right was acquired under the Italian legislation (1 November 1968) the conditions required by the Belgian legislation to be entitled to invalidity benefits had been fulfilled. Further, the automatic revision prescribed under (d) can apparently be made by the Italian institution only in respect of the Italian benefit, the only one already to have been paid.

Article 30 (1) of Regulation No 4 provides that the claim for benefit must be addressed ‘to the institution of the place of permanent residence in accordance with the procedures specified by the legislation of the country of permanent residence’. It follows from this that as soon as a claim is made in accordance with the procedure in force in the country of permanent residence, the procedures provided for by the legislation of other Member States are deemed to be fulfilled and the pension claim is validly made to each of the institutions concerned. The action taken by the Belgian authorities is therefore erroneous: it applies to a situation unconnected with Belgian law, rules laid down within the context of that law.

In accordance with the Italian legislation, the right was acquired on the first day of the month which followed the claim made by the person concerned, that is, on 1 November 1968. Until this time the worker could, according to the Italian legislation, carry on working. Certainly as from 1 November 1968 the worker satisfied the basic conditions laid down by the Belgian law, since he fulfilled the conditions of incapacity for work and of ceasing to work.

Although it must be accepted that a worker subject to the legislation of another Member State, and not benefiting from a sickness allowance, must satisfy the basic conditions laid down by the Belgian legislation for the payment of primary incapacity allowances, it would be going too far to treat the worker as if he were claiming the primary incapacity allowances, when he is claiming an invalidity pension. The conclusion must therefore be reached that to the extent to which the Belgian legislation does not prescribe formalities for claiming an invalidity pension, the latter is validly ‘claimed’ as soon as it is made in accordance with the procedures specified by the legislation of the country of permanent residence.

The Commission proposes the following reply to the question raised by the Tribunal du travail of Brussels:

‘When an invalidity pension is granted automatically under the legislation of a Member State without the beneficiary's having submitted a claim to the competent institution, a claim made to that institution through the institution of the worker's country of permanent residence in accordance with the procedures specified by the legislation of the latter country and in accordance with Article 30 (1) of Regulation No 4, takes effect as from the time when all the basic conditions laid down by the legislation of the first country for the grant of the invalidity pension are met, even if these conditions are not all satisfied at the time of the making of the claim. The observations concerning the abovementioned provisions of Regulation No 3 and Regulation No 4 apply equally to the corresponding provisions of Regulation No 1408/71 and Regulation No 574/72.’

During the hearing on 27 January 1976, Mr Balsamo represented by Mr Rossini, Director of the Patronato ACLI (Associazioni Cristiani Lavoratori Italiani), the Institut national d'assurance maladie-invalidité, represented by Mr Masquelin, Advocate at the Cour d'appel of Brussels and the Commission of the European Communities, represented by its Agent, Miss Jonczy, developed the arguments set out during the written procedure.

The Advocate-General delivered his opinion at the hearing on 17 February 1976.

Law

1. By a judgment of 6 October 1975, received at the Court Registry on the 13th day of the same month, the Tribunal du travail of Brussels referred, pursuant to Article 177 of the EEC Treaty, to the Court a question concerning the interpretation of Article 28 (1) (f) and (g) of Regulation No 3 of the Council of 25 September 1958 (JO No 30 of 16. 12. 1958, p. 574), Article 30 (1) of Regulation No 4 of the Council of 3 December 1958 (JO No 30 of 16. 12. 1958, p. 611), Article 49 of Regulation No 1408/71 of the Council of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416) and Article 36 (1) of Regulation No 574/72 of the Council of 21 March 1972 (OJ English Special Edition 1972 (I), p. 173) ‘so as to establish whether the application of these articles requires that a fresh claim for a pension be submitted each time according to the procedure laid down in Article 30 (1) of Regulation No 4 and Article 36 (1) of Regulation No 574/72’.

2. The main action concerns a worker of Italian nationality who worked as an employed person first in Belgium and then in Italy and who, in accordance with Article 30 (1) of Regulation No 4, which was in force at the time, made a claim for an invalidity pension from the Italian institution of his place of permanent residence although — as Italian legislation permits — he had not yet ceased work.

3. The answer to the question raised must enable the national court to decide the question whether, in order to be able to claim the proportional part of the pension which he receives because of his work in Belgium, the person concerned must, because of the fact that Belgian legislation makes the grant of an invalidity pension subject to the prior cessation of all work, make a second claim after he has ceased work.

(1) The interpretation of Article 28 (1) (f) and (g) of Regulation No 3 and of Article 30 (1) of Regulation No 4

4. According to paragraph (1) (f) of Article 28, which is applicable to invalidity benefits under Article 26 of the same regulation, if a person concerned does not at a given date satisfy the conditions required by all the legislative systems applicable to him, but satisfies the conditions of one of them without need of recourse to periods completed under one or more of the other legislative systems, the amount of the benefit shall be determined solely in accordance with the legislation under which the right is acquired and taking account only of the periods completed under that legislation.

5. In that case, in accordance with subparagraph (g) of the same paragraph, the benefits already paid shall be reviewed in accordance with the provisions of paragraph (1) (b), as and when the conditions required by one or more of the other legislative systems are satisfied, taking account of the aggregation of periods mentioned in Article 27 of Regulation No 3.

6. These provisions, subject to the compatibility of subparagraph (g) with Article 51 of the Treaty, refer exclusively to the possible alteration of a benefit granted in one Member State on the basis of national legislation alone in a case where the conditions for the grant of benefits laid down by the legislation of another Member State in which the person concerned has completed periods are satisfied later.

7. They do not therefore concern the calculation or the conditions for the grant of this second benefit and are irrelevant to the situation referred to by the national court.

8. According to Article 30 (1) of Regulation No 4, in order to receive benefits under Articles 26 to 28 of Regulation No 3, the worker shall be required to make his claim to the institution of the place of permanent residence in accordance with the procedure specified by the legislation of the country of permanent residence.

9. That provision was laid down with the aim of simplifying administration in order to exempt migrant workers, who have rights to assert in different Member States, from the requirement to lodge with the institutions in each of these States an application for the grant of the benefits which they may claim.

10. For the same purposes Articles 31 to 34 govern the manner in which the institution of the place of permanent residence deals with the file on the application, confirms the accuracy of the information provided by the person concerned, and then sends a form giving the information necessary for proving the rights of the said person concerned to the competent institutions of the other Member States in which insurance periods have been completed, the transmission of this form being equivalent to transmission of supporting documents.

11. It follows from these provisions that all the conditions of form concerning the making of an application, in respect of all the Member States in which periods of insurance or assimilated periods have been completed, are satisfied as soon as the application is properly made in accordance with the procedure laid down by the legislation of the country of permanent residence.

12. The institutions of the other Member States, which are subsequently vested with authority to deal with the case, therefore no longer have to decide on the question whether and in what manner they must be so vested, but have to decide only whether and at what time, in view of the information which has been given to them or that which they are authorized to call for by way of supplementary information, the worker fulfils the fundamental conditions necessary to be able to claim the advantage of the benefit in question.

13. The requirement of a prior cessation of work amounts to such a fundamental condition.

14. If, therefore, it appears from the form prescribed by Article 33, from the documents which accompany it or from information gathered by the institution of the Member State in which the worker concerned has completed periods, that the latter satisfies this condition at the latest when that institution, given authority to deal with the matter by the transmission of the file, makes a decision, the said institution is in all respects in a position to apply, as from the date of cessation of work, the provisions of its national legislation which govern the right to benefit.

15. It is necessary therefore to reply that when a migrant worker has made a claim for invalidity benefits to the institution of the place of his permanent residence and in accordance with the procedure specified by the legislation of the said place, he has no need to make a new claim in another Member State even if at the time of the making of his claim he did not yet satisfy all the fundamental conditions required by the legislation of the second State for the grant of the benefit.

(2) The interpretation of Article 49 of Regulation No 1408/71 and of Article 36 (1) of Regulation No 574/72

16. The considerations which apply for the purposes of the interpretation of Article 28 of Regulation No 3 apply in the same manner for the purposes of the interpretation of Article 49 of Regulation No 1408/71 which, too, refers in essence to the possible alteration of a benefit already granted on the basis of national legislation alone, as and when the conditions required by other legislations to which the person concerned has been subject, are satisfied.

17. The interpretation given to Article 30 of Regulation No 4 as regards the making of a new claim for a pension is equally valid in respect of Article 36 (1) of Regulation No 574/72.

18. In fact the substitution of the words ‘in accordance with the procedure provided for by the legislation administered by that institution’ for the words ‘in accordance with the procedure specified by the legislation of the country of permanent residence’ used in Article 30 of Regulation No 4 has no bearing on the necessity for making a new claim.

Costs

19. The costs incurred by the Commission of the European Communities which 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.

On those grounds, THE COURT in answer to the question referred to it by the Tribunal du travail of Brussels, in its judgment of 6 October 1975, hereby rules:

1 Article 28 (1) (f) and (g) of Regulation No 3, subject to the compatibility of subparagraph (g) with Article 51 of the Treaty, as well as Article 49 of Regulation No 1408/71, refer exclusively to a possible alteration of a benefit granted in one Member State on the basis of national legislation alone, in a case where the conditions for the grant of benefits obtained through the legislation of another Member State in which the person concerned has completed periods are satisfied later. These provisions do not therefore concern the calculation or the conditions for the grant of these later benefits.

2 When a migrant worker has made a claim for invalidity benefit to the institution of the place of his permanent residence and in accordance with the procedure specified by the legislation of the said place, as prescribed by Article 30 (1) of Regulation No 4, or specified by the legislation applied by that institution, as is prescribed by Article 36 (1) of Regulation No 574/72, there is no need to make a new claim in another Member State even if, at the time of the making of his claim he did not yet satisfy all the fundamental conditions required by the legislation of the second State for a grant of the benefit.