61975CJ0017_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 17/75
REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT OF APPEAL ), BRUSSELS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
ANTONIO ANSELMETTI
AND
CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES DE L'INDUSTRIE CHARBONNIERE, BRUSSELS,
Subject of the case
ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF 16 . 12 . 1958, P . 561 ),
Grounds
1 BY A JUDGMENT OF 20 DECEMBER 1974, WHICH REACHED THE REGISTRY ON 11 FEBRUARY 1975 THE COUR DU TRAVAIL, BRUSSELS, UNDER ARTICLE 177 OF THE EEC TREATY REFERRED TO THE COURT OF JUSTICE TWO QUESTIONS OF INTERPRETATION CONCERNING ARTICLES 10 AND 40 TO 42 OF REGULATION NO 3 ( OJ 1958, P . 561 ).
2 THESE QUESTIONS CONCERN THE RIGHT TO FAMILY ALLOWANCES OF A WORKER OF ITALIAN NATIONALITY, WHO, HAVING WORKED AND RESIDED WITH HIS FAMILY IN BELGIUM UNTIL 1965, RETURNED AT THE END OF THAT YEAR TO ITALY HAVING STOPPED WORK BECAUSE OF ILLNESS FROM DECEMBER 1963 AND HAVING BEEN ACCEPTED AS INCAPABLE OF WORKING WITHIN THE MEANING OF THE BELGIAN SCHEME OF SICKNESS/INVALIDITY INSURANCE .
3 THE FIRST QUESTION ASKS WHETHER ARTICLES 10 AND 42 OF REGULATION NO 3 INCLUDE 'MIGRANT WORKERS WHO ARE THE BENEFICIARIES OF WHAT IS TERMED IN BELGIUM "INVALIDITY ALLOWANCE" ACCORDING TO THE STRICT WORDING OF ARTICLE 53 OF THE BELGIAN LAW OF 9 AUGUST 1963 CONCERNING SICKNESS/INVALIDITY INSURANCE REFERRED TO IN ANNEX F TO SUCH REGULATION NO 3 '.
4 ACCORDING TO THE WORDING OF ARTICLE 42 AS AMENDED BY REGULATION NO 1/64 ( OJ 1964, P . 1 ), 'BENEFICIARIES OF A PENSION DUE IN PURSUANCE OF THE LEGISLATION OF ONE MEMBER STATE ONLY, AND WHO PERMANENTLY RESIDE IN THE TERRITORY OF ANOTHER MEMBER STATE, ARE ENTITLED TO FAMILY ALLOWANCES IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATION OF THE COUNTRY LIABLE FOR PAYMENT OF THE PENSION AS THOUGH THEY WERE PERMANENTLY RESIDENT IN THAT COUNTRY '.
5 THE NATIONAL COURT ASKS WHETHER THAT PROVISION IS APPLICABLE IN THE PRESENT CASE IN PREFERENCE TO ARTICLE 40 OF THE SAME REGULATION WHICH, AS AMENDED BY REGULATION NO 73/63 ( OJ 1963, P . 2011 ), PROVIDES THAT 'A WAGE-EARNER OR ASSIMILATED WORKER WHO HAS CHILDREN WHO ARE PERMANENTLY RESIDENT OR ARE BEING BROUGHT UP IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT COUNTRY SHALL BE ENTITLED, IN RESPECT OF THE SAID CHILDREN, TO FAMILY ALLOWANCES IN ACCORDANCE WITH THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY SUCH CHILDREN PERMANENTLY RESIDE OR ARE BEING BROUGHT UP '.
6 THE TWO PROVISIONS HOWEVER CONCERN CLEARLY DIFFERENT SITUATIONS, ARTICLE 40 APPLYING TO AN EMPLOYED WORKER WHOSE CHILDREN RESIDE ELSEWHERE PROBABLY IN HIS COUNTRY OF ORIGIN, WHILST ARTICLE 42 APPLIES TO A WORKER WHO IS THE RECIPIENT OF A PENSION, HAS CEASED EMPLOYMENT AND HAS CHANGED HIS PLACE OF RESIDENCE, PROBABLY ALSO TO HIS COUNTRY OF ORIGIN .
7 THE QUESTION IS ONE OF DETERMINING WHICH OF THESE TWO PROVISIONS APPLIES IN THE CASE OF PERSONS SUBJECT TO LEGISLATION SUCH AS THE BELGIAN LEGISLATION WHICH HAS ABANDONED THE DISTINCTION, STILL RETAINED BY REGULATION NO 3, BETWEEN, ON THE ONE HAND, BENEFITS OF A TEMPORARY CHARACTER GRANTED, PARTICULARLY IN CASE OF SICKNESS, TO EMPLOYED WORKERS WHO HAVE HAD TO INTERRUPT THEIR WORK AND, ON THE OTHER HAND, PERMANENT BENEFITS GRANTED UNDER THE NAME OF PENSIONS TO WORKERS WHO HAVE HAD TO CEASE WORK BECAUSE OF OLD-AGE OR INVALIDITY .
8 SUCH LEGISLATIVE SYSTEMS HAVE, FOR SOCIAL REASONS, ORGANIZED SICKNESS INSURANCE AND INVALIDITY INSURANCE WITHIN A SINGLE SCHEME SO THAT A WORKER WHO HAS BECOME INCAPABLE OF WORKING FIRST COMES UNDER A SCHEME CONCERNING TEMPORARY INCAPACITY AND ONLY AFTER A CERTAIN PERIOD OF TIME DOES HE BECOME SUBJECT TO A SCHEME INTENDED TO COVER TOTAL OR PARTIAL INCAPACITY WHICH IS OF LONG DURATION IF NOT PERMANENT .
9 UNDER SUCH LEGISLATIVE SYSTEMS CASH BENEFITS GRANTED UNDER WHATEVER NAME TO A WORKER WHOSE TOTAL OR PARTIAL INCAPACITY TO WORK SHOWS A TENDENCY TO BECOME STABILIZED MUST BE REGARDED AS PENSIONS WITHIN THE MEANING OF ARTICLE 42 EVEN IF THE INCAPACITY IS NOT PERMANENT, THE PENSIONS MAINLY ENVISAGED BY THIS ARTICLE BEING SOMETIMES THEMSELVES SUBJECT TO REVIEW .
10 IN THE CASE OF A MIGRANT WORKER, AS SOON AS THE STAGE IS REACHED AT WHICH, IN ACCORDANCE WITH THE RULES OF THE SICKNESS/INVALIDITY INSURANCE THE SYSTEM OF TEMPORARY INCAPACITY BENEFITS IS REPLACED BY THE SYSTEM OF INVALIDITY BENEFITS, IT IS APPROPRIATE TO REGARD ARTICLE 42 AS BEING APPLICABLE TO HIM IF HE CHANGES HIS RESIDENCE AND THAT OF HIS FAMILY TO ANOTHER MEMBER STATE .
11 FURTHERMORE EVEN IN THE CASE OF TRANSFER OF RESIDENCE BEFORE THIS STAGE THE WORKER WOULD RETAIN HIS RIGHTS TO FAMILY ALLOWANCES UNDER ARTICLE 19 ( 6 ) SO LONG AS THE TRANSFER WERE CARRIED OUT IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN ARTICLE 19 ( 2 ).
12 IT IS THEREFORE APPROPRIATE TO REPLY, WITHOUT ITS BEING NECESSARY FOR THE COURT TO GO INTO THE DETAILS OF THE BELGIAN LAW TO WHICH THE NATIONAL COURT REFERS, THAT UNDER A COMBINED SICKNESS/INVALIDITY INSURANCE SCHEME CASH BENEFITS PAID AS INVALIDITY BENEFITS, HOWSOEVER DESIGNATED, MUST BE REGARDED AS PENSIONS WITHIN THE MEANING OF ARTICLE 42 OF REGULATION NO 3 .
13 AS THE SECOND QUESTION HAS BEEN RAISED ONLY IN THE CASE OF A NEGATIVE REPLY TO THE FIRST, IT DOES NOT CALL FOR CONSIDERATION .
Decision on costs
14 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED THEIR OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
15 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 COUR DU TRAVAIL, BRUSSELS, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DU TRAVAIL, BRUSSELS, IN ITS JUDGMENT OF 20 DECEMBER 1974 HEREBY RULES :
UNDER A COMBINED SICKNESS/INVALIDITY INSURANCE SCHEME CASH BENEFITS PAID AS INVALIDITY BENEFITS, HOWSOEVER DESIGNATED, MUST BE REGARDED AS PENSIONS WITHIN THE MEANING OF ARTICLE 42 OF REGULATION NO 3 .