CELEX: 61981CJ0092
Social security for migrant workers
Invalidity pension

1 BY AN ORDER DATED 6 APRIL 1981 , WHICH WAS RECEIVED AT THE COURT ON 16 APRIL 1981 , THE BELGIAN COUR DE CASSATION ( COURT OF CASSATION ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ) AND REGULATION NO 4 OF THE COUNCIL OF THE EEC OF 3 DECEMBER 1958 ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 ( JOURNAL OFFICIEL 1958 , P . 597 ). THOSE QUESTIONS AROSE IN THE COURSE OF AN APPEAL IN CASSATION AGAINST A JUDGMENT OF THE COUR DU TRAVAIL ( LABOUR COURT ), BRUSSELS , UPHOLDING THE DECISION OF THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), BRUSSELS , REJECTING MRS CARACCIOLO ' S CLAIM FOR PAYMENT OF AN INVALIDITY PENSION BY THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE ( NATIONAL SICKNESS AND INVALIDITY INSURANCE INSTITUTION ) ( HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' ).
2 ON 12 JULY 1965 MRS CARACCIOLO , THE APPELLANT IN CASSATION , WAS DECLARED TO BE UNFIT FOR WORK IN BELGIUM . ON 9 NOVEMBER 1965 , THE MEDICAL OFFICER OF HER INSURANCE INSTITUTION , THE UNION NATIONALE DES MUTUALITES SOCIALISTES ( NATIONAL UNION OF SOCIALIST MUTUAL ASSOCIATIONS ) AUTHORIZED HER TO STAY IN ITALY FOR ONE MONTH FROM 15 NOVEMBER TO 14 DECEMBER 1965 . NOT HAVING RETURNED TO BELGIUM WHEN THAT AUTHORIZATION EXPIRED , SHE FAILED TO ATTEND THE MEDICAL EXAMINATION ORDERED ON 30 DECEMBER 1965 BY THE MEDICAL OFFICER OF HER INSURANCE INSTITUTION . AS A RESULT OF AN EXAMINATION CARRIED OUT ON 5 JANUARY 1966 BY THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( ITALIAN NATIONAL SOCIAL WELFARE INSTITUTION ) ( HEREINAFTER REFERRED TO AS ' ' THE ITALIAN INSTITUTION ' ' ), WHICH WAS COMPETENT BY VIRTUE OF THE BELGO-ITALIAN ADMINISTRATIVE ARRANGEMENT OF 20 OCTOBER 1950 , SHE WAS DECLARED FIT TO RESUME WORK AND PAYMENT OF HER ALLOWANCE WAS TERMINATED ON THE SAME DATE . ON 31 JANUARY 1966 SHE SUBMITTED AN APPLICATION FOR AN INVALIDITY PENSION TO THE BELGIAN INSTITUTION THROUGH THE INTERMEDIARY OF THE ITALIAN INSTITUTION , IN ACCORDANCE WITH REGULATIONS NOS 3 AND 4 . HOWEVER , MRS CARACCIOLO DID NOT CHALLENGE THE DECISION DISCONTINUING PAYMENT OF HER ALLOWANCE AND DID NOT CLAIM THAT HER INCAPACITY FOR WORK WAS UNINTERRUPTED . ON 26 NOVEMBER 1966 HER INVALIDITY WAS RECOGNIZED IN ITALY . HOWEVER , HER APPLICATION FOR AN INVALIDITY PENSION WAS REJECTED ON 31 MAY 1968 BY A DECISION OF THE BELGIAN INSTITUTION , TO WHICH IT HAD BEEN SENT , ON THE GROUND THAT THE APPELLANT HAD REMAINED IN ITALY WITHOUT THE PRIOR AUTHORIZATION OF ITS CONSULTANT PHYSICIAN . THAT REJECTION WAS CONFIRMED ON 12 MAY 1969 ON THE FRESH GROUND THAT THE APPELLANT HAD NOT , IN HER CAPACITY AS A PERSON INSURED     UNDER BELGIAN LAW , CLAIMED OR EXHAUSTED HER ENTITLEMENT TO SICKNESS INSURANCE CASH BENEFITS , AS PROVIDED FOR BY THE BELGIAN LAW OF 9 AUGUST 1963 .
3 THE JUDGMENT OF THE TRIBUNAL DU TRAVAIL REJECTING MRS CARACCIOLO ' S CLAIM WAS UPHELD ON APPEAL BY THE COUR DU TRAVAIL , BRUSSELS , ON THE GROUND THAT SHE HAD BEEN EXCLUDED FROM THE BENEFIT OF SICKNESS AND INVALIDITY INSURANCE SINCE 6 JANUARY 1966 AND WAS THEREFORE NO LONGER IN A SITUATION COVERED BY THE BELGO-ITALIAN ADMINISTRATIVE ARRANGEMENT OF 20 OCTOBER 1950 , WHICH REMAINED IN FORCE BY VIRTUE OF ARTICLE 6 ( 1 ) AND ( 2 ) OF REGULATION NO 4 AND GOVERNED THE PROCEDURE FOR DECLARING PERSONS UNFIT FOR WORK . AS A RESULT , ACCORDING TO THE COUR DU TRAVAIL , THE APPELLANT WAS SUBJECT EXCLUSIVELY TO BELGIAN LEGISLATION AT THE TIME WHEN SHE SUBMITTED HER APPLICATION FOR AN INVALIDITY PENSION TO THE ITALIAN INSTITUTION . AGAIN ACCORDING TO THE COUR DU TRAVAIL AND PURSUANT TO THE BELGIAN LEGISLATION , HER APPLICATION FOR AN INVALIDITY PENSION WAS IRREGULAR OWING TO THE FACT THAT SHE HAD NOT INFORMED HER INSURANCE INSTITUTION IN BELGIUM OF HER FRESH INCAPACITY AND , IN ANY EVENT , DID NOT QUALIFY FOR THE DISABLEMENT ALLOWANCE UNDER ARTICLE 70 ( 1 ) OF THE BELGIAN LAW IN QUESTION , WHICH ESTABLISHES THE PRINCIPLE OF TERRITORIALITY IN RELATION TO HEALTH BENEFITS .
4 IN HER APPEAL IN CASSATION , MRS CARACCIOLO CLAIMED IN PARTICULAR THAT BY VIRTUE OF ARTICLE 83 OF REGULATION NO 4 THE APPLICATION FOR AN INVALIDITY PENSION WHICH SHE SUBMITTED TO THE ITALIAN INSTITUTION AND WHICH INCLUDED A DECLARATION OF INCAPACITY WAS EQUIVALENT TO A DECLARATION MADE TO THE COMPETENT BELGIAN AUTHORITY AND THAT MOREOVER THE PRINCIPLE OF TERRITORIALITY HAD CEASED TO BE APPLICABLE BY REASON OF ITS INCOMPATIBILITY WITH THE PROVISIONS OF ARTICLE 10 ( 1 ) OF REGULATION NO 3 .
5 IN ORDER TO RESOLVE THAT PROBLEM , THE COUR DE CASSATION REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS :
' ' 1 . WHERE A WORKER IN RECEIPT OF SICKNESS AND INVALIDITY INSURANCE BENEFITS IN CASH IN A MEMBER STATE OF THE EUROPEAN COMMUNITY , WHO HAS BEEN AUTHORIZED TO STAY IN ANOTHER MEMBER STATE IN ORDER TO RECEIVE TREATMENT THERE , HAS REMAINED IN THAT OTHER STATE AFTER THE EXPIRY OF THE PRESCRIBED PERIOD AND ON CONDITIONS WHICH ARE IRREGULAR UNDER THE LEGISLATION OF THE STATE OF ORIGIN AND UNDER AN ADMINISTRATIVE ARRANGEMENT CONCLUDED BETWEEN THE TWO STATES WHICH HAS REMAINED APPLICABLE UNDER REGULATIONS     NOS 3 AND 4 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS , MUST ARTICLE 83 OF REGULATION NO 4 BE INTERPRETED TO MEAN THAT THAT PROVISION DETERMINES NOT ONLY THE DATE ON WHICH A DECLARATION OR AN APPEAL SHALL BE DEEMED TO HAVE BEEN MADE TO THE AUTHORITY , INSTITUTION OR AGENCY COMPETENT TO TAKE COGNIZANCE THEREOF BUT ALSO THE VALIDITY OF THE CLAIM WHEN IT IS ADDRESSED TO AN AUTHORITY , INSTITUTION OR AGENCY OF A MEMBER STATE OTHER THAN THAT OF THE STATE WHOSE AUTHORITY , INSTITUTION OR AGENCY IS COMPETENT TO TAKE COGNIZANCE THEREOF?
2.IF THE ANSWER TO THAT FIRST QUESTION IS IN THE AFFIRMATIVE , MUST THAT PROVISION BE INTERPRETED TO MEAN THAT A CLAIM WHICH IS SUBMITTED IN THE CIRCUMSTANCES WHICH HAVE JUST BEEN RELATED MUST BE CONSIDERED VALID ALTHOUGH UNDER THE LEGISLATION OF THE STATE OF THE COMPETENT AUTHORITY THE CLAIMANT ' S RESIDENCE IN THE OTHER STATE WAS IRREGULAR?
3.LIKEWISE , DO THE PROVISIONS OF ARTICLE 10 ( 1 ) OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS PRECLUDE THE APPLICATION BY THE INSURANCE INSTITUTION OF THE MEMBER STATE OF ORIGIN OF THE PRINCIPLE OF THE TERRITORIALITY OF BENEFITS LAID DOWN BY NATIONAL LEGISLATION , IN THIS CASE BY ARTICLE 70 ( 1 ) OF THE BELGIAN LAW OF 9 AUGUST 1963?
' '
THE FIRST AND SECOND QUESTIONS
6 ARTICLE 83 OF REGULATION NO 4 , TO WHICH THE FIRST QUESTION SUBMITTED BY THE COUR DE CASSATION RELATES , PROVIDES THAT : ' ' THE DATE OF SUBMISSION OF CLAIMS , DECLARATIONS OR APPEALS TO AN AUTHORITY , INSTITUTION OR AGENCY OF ANOTHER MEMBER STATE SHALL BE DEEMED TO BE THE DATE OF SUBMISSION THEREOF TO THE COMPETENT AUTHORITY , INSTITUTION OR AGENCY . ' '
7 IT IS CLEAR FROM THE WORDING OF THAT PROVISION THAT IT CONCERNS THE SUBMISSION OF CLAIMS BY MIGRANT WORKERS . ITS OBJECTIVE IS TO SIMPLIFY THE ADMINISTRATIVE FORMALITIES WHICH MUST BE COMPLIED WITH BY PERSONS CONCERNED IN VIEW OF THE COMPLEXITY OF THE ADMINISTRATIVE PROCEDURES EXISTING IN THE VARIOUS MEMBER STATES AND TO PREVENT PERSONS CONCERNED FROM BEING DEPRIVED OF THEIR RIGHTS     ON PURELY FORMAL GROUNDS . THUS , BY VIRTUE OF ARTICLE 83 OF REGULATION NO 4 , THE SUBMISSION OF A CLAIM TO AN AUTHORITY , INSTITUTION OR AGENCY OF A MEMBER STATE OTHER THAN THE STATE CALLED UPON TO PAY THE BENEFIT HAS THE SAME EFFECT AS IF THAT CLAIM HAD BEEN SUBMITTED DIRECT TO THE COMPETENT AUTHORITY OF THE LATTER STATE .
8 ON THE OTHER HAND , THAT ARTICLE CANNOT BE REGARDED AS HAVING A SCOPE WHICH , IN ADDITION TO COVERING PROCEDURAL QUESTIONS , ALSO EXTENDS TO THE SUBSTANTIVE RULES APPLICABLE IN THE MATTER .
9 THE ANSWER SHOULD THEREFORE BE THAT ARTICLE 83 OF REGULATION NO 4 MUST BE INTERPRETED AS MEANING THAT THE SUBMISSION OF A CLAIM TO AN AUTHORITY , INSTITUTION OR AGENCY OF A MEMBER STATE OTHER THAN THE MEMBER STATE CALLED UPON TO PAY THE BENEFIT HAS THE SAME EFFECT AS IF THAT CLAIM HAD BEEN SUBMITTED DIRECT TO THE COMPETENT AUTHORITY OF THE LATTER STATE . MOREOVER , SUCH AN INTERPRETATION IS IN KEEPING WITH THE SCHEME OF REGULATION NO 4 WHICH , ON THAT POINT , SEEKS SIMPLY TO AVOID THE LOSS OF RIGHTS BY MIGRANT WORKERS OWING TO MERE ADMINISTRATIVE FORMALITIES . IT FOLLOWS THAT ARTICLE 83 OF REGULATION NO 4 DOES NOT CONCERN THE SUBSTANTIVE RULES APPLICABLE IN THE MATTER .
10 THE FACT THAT THE RESIDENCE OF THE PERSON CONCERNED IN THE STATE WHERE SHE SUBMITTED HER CLAIM WAS IRREGULAR UNDER THE LEGISLATION OF THE STATE OF THE COMPETENT AUTHORITY IN NO WAY AFFECTS THE TERMS OF THE REPLY WHICH HAS JUST BEEN GIVEN .
THE THIRD QUESTION
11 BY ITS THIRD QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN WHETHER ARTICLE 10 ( 1 ) OF REGULATION NO 3 PRECLUDES THE APPLICATION BY THE INSTITUTION OF THE COMPETENT STATE , FROM WHICH THE BENEFIT IS CLAIMED , OF THE PRINCIPLE OF TERRITORIALITY LAID DOWN BY THE NATIONAL LEGISLATION OF THAT STATE , THAT IS TO SAY , ACCORDING TO THAT COURT , BY ARTICLE 70 ( 1 ) OF THE BELGIAN LAW OF 9 AUGUST 1963 , WHICH PROVIDES :
' ' SUBJECT ONLY TO DEROGATIONS LAID DOWN BY THE KING , THE BENEFITS PROVIDED FOR BY THIS LAW SHALL NOT BE GRANTED WHERE THE CLAIMANT IS NOT IN FACT ON BELGIAN TERRITORY AT THE TIME WHEN HE CLAIMS THE BENEFITS OR IF HEALTH BENEFITS WERE PROVIDED OUTSIDE THE NATIONAL TERRITORY . . . ' ' .
12 ACCORDING TO ARTICLE 10 ( 1 ) OF REGULATION NO 3 ' ' PENSIONS OR DEATH BENEFITS PAYABLE UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT SUFFER REDUCTION , MODIFICATION , SUSPENSION . . . BY REASON OF THE FACT THAT THE BENEFICIARY IS PERMANENTLY RESIDENT IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION LIABLE FOR PAYMENT IS SITUATED . ' '
13 UNDER ARTICLE 26 ( 1 ) OF REGULATION NO 3 THAT PROVISION IS TO APPLY MUTATIS MUTANDIS TO INVALIDITY BENEFITS .
14 AS THE COURT HAS ALREADY STATED IN ITS CASE-LAW , INTER ALIA IN ITS JUDGMENT OF 7 NOVEMBER 1973 IN CASE 51/73 BESTUUR DER SOCIALE VERZEKERINGSBANK V B . SMIEJA ( 1973 ) ECR 1213 , THE AIM OF THE PROVISION CONTAINED IN ARTICLE 10 IS TO PROMOTE THE FREE MOVEMENT OF WORKERS BY INSULATING THOSE CONCERNED FROM THE HARMFUL CONSEQUENCES WHICH MIGHT RESULT WHEN THEY TRANSFER THEIR RESIDENCE FROM ONE MEMBER STATE TO ANOTHER . IT IS CLEAR FROM THAT PRINCIPLE NOT ONLY THAT THE PERSON CONCERNED RETAINS THE RIGHT TO RECEIVE PENSIONS AND BENEFITS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES EVEN AFTER TAKING UP RESIDENCE IN ANOTHER MEMBER STATE , BUT ALSO THAT HE MAY NOT BE PREVENTED FROM ACQUIRING SUCH A RIGHT MERELY BECAUSE HE DOES NOT RESIDE IN THE TERRITORY OF THE STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .
15 MOREOVER , IT IS APPROPRIATE TO ADD THAT SO FAR AS SICKNESS BENEFITS ARE CONCERNED THIS QUESTION IS COVERED BY ARTICLE 19 ( 2 ) OF REGULATION NO 3 , WHICH PROVIDES FOR THE RETENTION OF THE RIGHT TO SICKNESS BENEFITS FOR WAGE-EARNERS OR ASSIMILATED WORKERS WHO TRANSFER THEIR PERMANENT RESIDENCE FROM ONE MEMBER STATE TO ANOTHER BUT WHICH EXPRESSLY REQUIRES ' ' THE AUTHORIZATION OF THE COMPETENT INSTITUTION , WHICH SHALL TAKE DUE ACCOUNT OF THE     REASONS FOR THE TRANSFER ' ' . IT SHOULD , HOWEVER , BE POINTED OUT THAT THAT PROVISION APPLIES ONLY TO SICKNESS BENEFITS AND NOT TO INVALIDITY BENEFITS .
16 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT ARTICLE 10 ( 1 ) OF REGULATION NO 3 MUST BE INTERPRETED AS MEANING THAT THE INSURANCE INSTITUTION OF THE STATE OF ORIGIN IS NOT PERMITTED TO APPLY TO INVALIDITY BENEFITS THE PRINCIPLE OF TERRITORIALITY TO WHICH THE NATIONAL COURT REFERS .
Decision on costs
COSTS
17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
18 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 .
Operative part
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY ORDER OF 6 APRIL 1981 , HEREBY RULES :
1 . ARTICLE 83 OF REGULATION NO 4 OF THE COUNCIL OF THE EEC OF 3 DECEMBER 1958 MUST BE INTERPRETED AS MEANING THAT THE SUBMISSION OF A CLAIM TO AN AUTHORITY , INSTITUTION OR AGENCY OF A MEMBER STATE OTHER THAN THE STATE CALLED UPON TO PAY THE BENEFIT HAS THE SAME EFFECT AS IF THAT CLAIM HAD BEEN SUBMITTED DIRECT TO THE COMPETENT AUTHORITY OF THE LATTER STATE .
2.THE FACT THAT THE RESIDENCE OF THE PERSON CONCERNED IN THE STATE WHERE SHE SUBMITTED HER CLAIM WAS IRREGULAR UNDER THE LEGISLATION OF     THE COMPETENT STATE IN NO WAY ALTERS THE FACT THAT THE SUBMISSION OF THAT CLAIM HAS THE SAME EFFECT AS IF IT HAD BEEN SUBMITTED DIRECT TO THE COMPETENT AUTHORITY OF THE STATE OF ORIGIN .
3.ARTICLE 10 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 MUST BE INTERPRETED AS MEANING THAT THE INSURANCE INSTITUTION OF THE STATE OF ORIGIN IS NOT PERMITTED TO APPLY TO INVALIDITY BENEFITS THE PRINCIPLE OF TERRITORIALITY TO WHICH THE NATIONAL COURT REFERS .