61981J0079

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - RESTRICTION OF ADVANTAGES RESULTING FROM THE APPLICATION OF COMMUNITY REGULATIONS - MAINTENANCE OF ADVANTAGES OBTAINED UNDER NATIONAL LEGISLATION ALONE

( EEC TREATY , ARTS 48 TO 51 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING - UNEMPLOYMENT BENEFIT - BENEFIT SUBJECT UNDER NATIONAL LEGISLATION TO FITNESS FOR WORK - FITNESS FOR WORK RECOGNIZED - REFUSAL TO GRANT ALLOWANCE BECAUSE OF AN INVALIDITY PENSION GRANTED BY ANOTHER MEMBER STATE - NOT PERMISSIBLE

( EEC TREATY , ART . 51 ; REGULATIONS NOS 1408/71 , ART . 12 ( 2 ), AND 574/72 OF THE COUNCIL )

1 . ALTHOUGH RESTRICTIONS MAY BE PLACED ON MIGRANT WORKERS AS A COUNTERPART TO THE ADVANTAGES WHICH THEY DERIVE UNDER THE COMMUNITY REGULATIONS AND WHICH THEY COULD NOT OBTAIN WITHOUT THEM , THE AIM OF ARTICLES 48 TO 51 OF THE EEC TREATY WOULD NOT BE ACHIEVED IF THE EFFECT OF THE APPLICATION OF THOSE REGULATIONS WERE TO WITHDRAW OR REDUCE THE SOCIAL SECURITY ADVANTAGES WHICH A WORKER ENJOYS UNDER THE LEGISLATURE OF ONE MEMBER STATE ALONE .

2 . ARTICLE 51 OF THE TREATY AND REGULATIONS NOS 1408/71 AND 574/72 OF THE COUNCIL 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 .

IN CASE 79/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MARGHERITA BACCINI

AND

OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE )

ON THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY AND REGULATION NO 574/72 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 AND , IN THE ALTERNATIVE , ON THE VALIDITY OF REGULATION NO 1408/71 HAVING REGARD TO ARTICLE 51 OF THE TREATY ,

1 BY JUDGMENT DATED 3 APRIL 1981 WHICH WAS RECEIVED AT THE COURT ON 10 APRIL 1981 THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS CONCERNING , ON THE ONE HAND , THE INTERPRETATION OF 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) AND , ON THE OTHER HAND , AND SECONDARILY , THE VALIDITY OF REGULATION NO 1408/71 IN REGARD TO THE AIMS OF THE TREATY IN GENERAL AND THE TERMS OF ARTICLE 51 THEREOF IN PARTICULAR .

2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN MRS BACCINI AND THE OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE ) OF BELGIUM .

3 MRS BACCINI , AN ITALIAN NATIONAL , WORKED IN ITALY AND THEN IN BELGIUM . SHE RECEIVED AN INVALIDITY ALLOWANCE IN BELGIUM AS FROM 5 JULY 1973 .

4 IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NOS 1408/71 AND 574/72 OF THE COUNCIL THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE OF BELGIUM ( HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' ) INFORMED THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( HEREINAFTER CALLED ' ' THE ITALIAN INSTITUTION ' ' ) OF ITALY OF MRS BACCINI ' S INVALIDITY . ACCORDING TO PARAGRAPH ( 3 ) ( WHICH HAS SINCE BECOME PARAGRAPH ( 4 )) OF ARTICLE 40 OF REGULATION NO 1408/71 , ' ' 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 LEGISLATIONS OF THESE STATES ON CONDITIONS RELATING TO THE DEGREE OF INVALIDITY IS ACKNOWLEDGED IN ANNEX IV ' ' . BEFORE COUNCIL REGULATION NO 2793/81 ( OFFICIAL JOURNAL L 275 , P . 1 ), WHICH AMENDED REGULATION NO 1408/71 , CAME INTO EFFECT ON 18 SEPTEMBER 1981 , ANNEX IV ACCEPTED THE CONCORDANCE BETWEEN THE BELGIAN AND ITALIAN LEGISLATION ON CONDITIONS RELATING TO THE DEGREE OF INVALIDITY .

5 IN VIEW OF THE INFORMATION WHICH IT HAD RECEIVED FROM THE BELGIAN INSTITUTION ON MRS BACCINI ' S CONDITION AND WHICH WAS BINDING UPON IT BY VIRTUE OF THE PROVISIONS OF REGULATION NO 1408/71 CITED ABOVE AND ANNEX IV THERETO , THE ITALIAN INSTITUTION AWARDED HER AS FROM 1 AUGUST 1974 AN INVALIDITY PENSION WHICH , HAVING REGARD TO THE FACT THAT MRS BACCINI HAD WORKED IN ITALY AND BELGIUM , WAS AGGREGATED AND APPORTIONED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY REGULATION NOS 1408/71 AND 574/72 .

6 THE MEDICAL OFFICER OF THE COMPETENT BELGIAN INSTITUTION SUBSEQUENTLY FOUND THAT MRS BACCINI ' S UNFITNESS FOR WORK HAD COME TO AN END AND THE BELGIAN INVALIDITY BENEFITS CEASED TO BE PAID TO HER . THE FIRST PARAGRAPH OF ARTICLE 141 OF THE BELGIAN ROYAL DECREE OF 20 DECEMBER 1963 ON EMPLOYMENT AND REDUNDANCY , AS AMENDED ON 11 SEPTEMBER 1969 , PROVIDES THAT ' ' A WORKER IN RECEIPT OF BENEFITS UNDER A BELGIAN SICKNESS AND INVALIDITY INSURANCE SCHEME SHALL NOT BE ENTITLED TO UNEMPLOYMENT BENEFIT FOR UNFITNESS FOR WORK ' ' AND MRS BACCINI , WHO WAS NO LONGER IN RECEIPT OF A BELGIAN INVALIDITY BENEFIT , WAS GRANTED BELGIAN UNEMPLOYMENT BENEFIT WHICH SHE DREW FROM 28 APRIL 1975 TO 4 JUNE 1975 AND THEN AGAIN FROM 1 SEPTEMBER 1977 .

7 AS AMENDED , THE THIRD PARAGRAPH OF ARTICLE 141 OF THE BELGIAN ROYAL DECREE OF 20 DECEMBER 1963 PROVIDES THAT ' ' A WORKER IN RECEIPT OF BENEFITS UNDER A FOREIGN SICKNESS AND INVALIDITY INSURANCE SCHEME FOR INCAPACITY FOR WORK NOT CAUSED BY AN ACCIDENT AT WORK OR BY OCCUPATIONAL DISEASE SHALL NOT BE ENTITLED TO UNEMPLOYMENT BENEFIT FOR UNFITNESS FOR WORK IF THE DEGREE OF THAT INCAPACITY IS 50% OR MORE ' ' . ON THE BASIS OF THOSE PROVISIONS ON 8 DECEMBER 1978 THE DIRECTOR OF THE REGIONAL OFFICE OF THE OFFICE NATIONAL DE L ' EMPLOI AT LA LOUVIERE , RELYING ON THE FACT THAT MRS BACCINI WAS RECEIVING AN INVALIDITY PENSION WHICH THE ITALIAN INSTITUTION HAD GRANTED TO HER , REFUSED HER BELGIAN UNEMPLOYMENT BENEFIT FROM 28 APRIL TO 4 JUNE 1975 AND THEN FROM 1 SEPTEMBER 1977 AND REQUIRED HER TO REPAY THE BENEFITS WHICH SHE HAD RECEIVED DURING THOSE PERIODS .

8 MRS BACCINI INSTITUTED PROCEEDINGS AGAINST THAT DECISION BEFORE THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , AND THEN BROUGHT PROCEEDINGS BY WAY OF APPEAL BEFORE THE COUR DU TRAVAIL , MONS , WHICH ASKS IN SUBSTANCE :

FIRST , WHETHER ARTICLE 51 OF THE EEC TREATY AND REGULATIONS NOS 1408/71 AND 574/72 MUST BE INTERPRETED IN SUCH A WAY THAT IT IS IN ACCORDANCE WITH THE AIMS OF THE TREATY TO REFUSE A MIGRANT WORKER UNEMPLOYMENT BENEFIT PURSUANT TO RULES OF NATIONAL LAW AGAINST THE OVERLAPPING OF BENEFITS IN A STATE IN WHICH HE IS NO LONGER RECOGNIZED AS UNFIT FOR WORK ON THE GROUND THAT HE IS IN RECEIPT OF AN APPORTIONED INVALIDITY PENSION FROM ANOTHER MEMBER STATE WHICH HAS BEEN DETERMINED WITH REGARD TO THE COMMUNITY REGULATIONS ;

SECONDLY , IF THE ANSWER TO THAT QUESTION IS AFFIRMATIVE , WHETHER THAT SITUATION IS ' ' NOT ITSELF THE RESULT OF THE ENJOYMENT OF THE INVALIDITY PENSION UNDER REGULATION NO 1408/71 SO THAT THE REGULATION DOES NOT PROVIDE THE SECURITY SPECIFIED BY ARTICLE 51 OF THE TREATY AND IS CONTRARY TO THE OBJECTIVES OF THE TREATY ' ' .

9 BOTH THE WORDING OF THE FIRST QUESTION PUT BY THE MONS COURT AND THE GROUNDS OF ITS JUDGMENT INDICATE THAT THE GRANT OF UNEMPLOYMENT BENEFIT TO THE MIGRANT WORKER WHOSE CASE IS BEFORE THAT COURT DEPENDS ON HER FITNESS FOR WORK AND THAT HER FITNESS FOR WORK IS ACCEPTED BY THE AUTHORITIES OF THE STATE FROM WHICH THE BENEFIT IS CLAIMED .

10 SIMPLY BECAUSE MRS BACCINI RECEIVES AN INVALIDITY PENSION FIXED IN THE MANNER PRESCRIBED BY REGULATIONS NOS 1408/71 AND 574/72 FROM ANOTHER MEMBER STATE THE COMPETENT AUTHORITIES OF THE STATE REQUIRED TO PAY UNEMPLOYMENT BENEFIT TO HER REFUSED TO DO SO ON THE BASIS OF A PROVISION OF THEIR OWN NATIONAL LEGISLATION .

11 THEREFORE THE ANSWER TO THE FIRST QUESTION RAISED BY THE COUR DU TRAVAIL , MONS , TURNS ON WHETHER , HAVING REGARD TO THE AIMS OF THE TREATY , THE GRANT TO A MIGRANT WORKER BY A MEMBER STATE , OTHER THAN THAT IN WHICH HE WORKS , OF AN INVALIDITY PENSION AWARDED AND CALCULATED ON THE BASIS AND UNDER THE CONDITIONS PRESCRIBED BY THE COMMUNITY REGULATIONS IN QUESTION MAY HAVE THE EFFECT OF WITHDRAWING FROM THAT WORKER THE RIGHT TO A DIFFERENT KIND OF BENEFIT WHICH THE LEGISLAITON OF THE STATE OF EMPLOYMENT ALONE WOULD GIVE HIM IF HE HAD NOT BENEFITED FROM APPLICATION OF THE COMMUNITY REGULATIONS .

12 ARTICLE 48 TO 51 OF THE TREATY SEEK TO ENSURE THAT WORKERS MAY MOVE FREELY WITHIN THE COMMUNITY . REGULATIONS NOS 1408/71 AND 574/72 , ADOPTED PURSUANT TO ARTICLE 51 OF THE TREATY , GIVE PRACTICAL EFFECT TO THE PRINCIPLES ENUNCIATED IN THAT ARTICLE IN THE FIELD OF SOCIAL SECURITY .

13 ALTHOUGH ACCORDING TO THE CASE-LAW OF THE COURT RESTRICTIONS MAY BE PLACED ON MIGRANT WORKERS AS A COUNTERPART TO THE SOCIAL SECURITY ADVANTAGES WHICH THEY DERIVE UNDER THE COMMUNITY REGULATIONS AND WHICH THEY COULD NOT OBTAIN WITHOUT THEM , THE AIM OF ARTICLES 48 TO 51 OF THE TREATY WOULD NOT BE ACHIEVED IF THE EFFECT OF THE APPLICATION OF THOSE REGULATIONS WERE TO WITHDRAW OR REDUCE THE SOCIAL SECURITY ADVANTAGES WHICH A WORKER ENJOYS UNDER THE LEGISLATION OF A MEMBER STATE ALONE .

14 IT WOULD BE CONTRARY TO THE OBJECTIVES OF ARTICLES 48 TO 51 OF THE TREATY IF PROVISIONS DESIGNED TO FACILITATE THE MOVEMENT OF MIGRANT WORKERS IN REALITY MADE IT MORE DIFFICULT FOR THEM BY DEPRIVING THEM OF ADVANTAGES WHICH THEY COULD HAVE ENJOYED IF IT WERE NOT FOR THOSE ARTICLES OF THE TREATY AND THE PROVISIONS ADOPTED BY THE COUNCIL TO IMPLEMENT THEM .

15 IT IS TRUE THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT : ' ' THE PROVISIONS OF THE LEGISLATION OF A MEMBER STATE FOR REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS OR OTHER INCOME MAY BE INVOKED EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE OR SUCH INCOME ARISES IN THE TERRITORY OF ANOTHER MEMBER STATE ' ' . HOWEVER , HAVING REGARD TO THE OBJECTIVES OF ARTICLES 48 TO 51 WHICH HAVE JUST BEEN MENTIONED , THE PROVISIONS OF THAT PARAGRAPH MAY NOT BE CONSTRUED AS APPLYING TO THE PROVISIONS OF THE NATIONAL LEGISLATION OF A MEMBER STATE WHICH , FOR THE PURPOSE OF GRANTING UNEMPLOYMENT BENEFIT THE AMOUNT OF WHICH DEPENDS UPON A CLAIMANT ' S FITNESS FOR WORK , DO NOT TAKE ACCOUNT OF THE ACTUAL PHYSICAL CONDITION OF THE WORKER ON THE DATE ON WHICH HE BECOMES UNEMPLOYED BUT TAKE AS EVIDENCE THAT A MIGRANT WORKER IS NOT FIT FOR WORK THE FACT THAT HE HAS PREVIOUSLY BEEN GRANTED AN INVALIDITY PENSION IN ANOTHER MEMBER STATE PURSUANT TO RULES OF COMMUNITY LAW AND ON THE BASIS OF INFORMATION PROVIDED BY THE FIRST MEMBER STATE .

16 AS A RESULT OF THE FOREGOING THE ANSWER TO THE FIRST QUESTION RAISED BY THE COUR DU TRAVAIL , MONS , MUST BE THAT ARTICLE 51 OF THE TREATY AND REGULATIONS NOS 1408/71 AND 574/72 OF THE COUNCIL 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 .

17 IN VIEW OF THE ANSWER WHICH HAS JUST BEEN GIVEN TO THE FIRST QUESTION ASKED BY THE COUR DU TRAVAIL , MONS , THERE IS NO NEED TO ANSWER THE SECOND QUESTION RAISED BY THAT COURT WHICH CONCERNS THE VALIDITY OF REGULATION NO 1408/71 IN REGARD TO THE OBJECTIVES OF THE TREATY AND APPEARS TO HAVE BEEN PUT IN THE ALTERNATIVE .

COSTS

18 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT , THE BELGIAN GOVERNMENT AND THE COMMISSION WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

19 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 QUESTIONS REFERRED TO IT BY THE COUR DU TRAVAIL , MONS , BY JUDGMENT OF 3 APRIL 1981 , HEREBY RULES :

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 NO 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 TO 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 .