OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 17 FEBRUARY 1976 ( 1 )

Mr President,

Members of the Court,

In giving the facts relating to the present case, with which we are concerned today and which has been referred to the Court for a preliminary ruling, an effort is required to suppress one's feelings and to avoid the use of strong language.

What is it about?

It concerns Mr Balsamo, an Italian national who, having previously worked for some years in Italy, worked as a miner in Belgium from 1946 until 1958 and thereafter as an agricultural worker in Italy where he took up residence after his return from Belgium. Since 1 November 1968 (the dates in this case are important) he has not worked for health reasons.

On 26 October 1968, in view of his state of health which required that he cease work soon, Mr Balsamo applied to the Istituto Nazionale della Previdenza Sociale (INPS) the competent Italian social insurance institution, for the grant of an invalidity pension. It was granted to him under Italian law with effect from 1 November 1968 on the basis of his work in Italy. Using the forms provided for by Community law, Regulations Nos 3 and 4 concerning social security for migrant workers (JO No 30 of 16. 12. 1958) the INPS transmitted the application to the competent Belgian social insurance institution in June 1970. The form contained inter alia the name of his last employer and stated when Mr Balsamo had stopped working. Thus the Belgian social insurance institution was informed that since 1 November 1968 Mr Balsamo had not been employed and that he had been drawing an Italian invalidity pension since that date.

Since for a long time he received no decision from Belgium Mr Balsamo sent various letters in August 1973, and February and March 1974 (these dates are unfortunately quite correct) to the competent Belgian insurance institution, the Institut national d'assurance maladie-invalidité (INAMI), inquiring as to the state of progress of his application. In October 1974 through the Italian social insurance authority he was informed of a decision made by the Belgian social insurance authority on 24 July 1974 rejecting his application for the grant of a Belgian invalidity pension. It did so although the panel of doctors competent to assess invalidity which was responsible to the INAMI had acknowledged Mr Balsamo's incapacity for work in respect of the period from 31 October 1968 until 31 March 1976, the date on which he will reach the age as from which the old-age pension will be payable. The INAMI based its rejection on Article 56 of the Belgian Law of 9 August 1963 according to which a prerequisite for the existence of incapacity for work is that the person concerned has given up all employment. It argued that this condition had not yet been satisfied at the time of submission of the claim for an invalidity pension on 26 October 1968 but only some days later. A fresh application for a pension was therefore necessary.

Mr Balsamo appealed to the Tribunal du travail of Brussels against this decision. He pointed out that the Italian social insurance authority had only forwarded his application to Brussels for processing on 10 June 1970 and he emphasized that he was only concerned with benefits as from 1 November 1968, that is, after he had given up all employment. In such a situation submission of a fresh pension application could not be regarded as necessary. This was supported by the provisions of Article 28 (1) (f) and (g) of Regulation No 3, and Article 30 (1) of Regulation No 4 and the corresponding provisions in force since 1 October 1970 of Regulation No 1408/71 (Article 49 (3) OJ, English Special Edition 1971 (II), p. 416) and of Regulation No 574/72 (Article 36 (1) OJ, English Special Edition 1972 (I), p. 159).

In view of these provisions of Community law the interpretation of which was, in the opinion of the court concerned, not free from doubt, that court, allowing a subsidiary application by the plaintiff, by judgment of 6 October 1975 stayed the proceedings and referred the following question for a preliminary ruling in accordance with Article 177 of the EEC Treaty:

‘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?’

Like the Commission I think it is appropriate to make a few preliminary remarks as to the Italian and Belgian legal situation before giving my opinion on this question.

With regard to Italian law it is important that a right to an invalidity pension exists independently of any previously existing illness and that, if all conditions are fulfilled, it arises with effect from the first day of the month following the submission of the application. It is probably also the case, having regard to the latter rule under Italian law, that it is not prohibited to be in employment at the time of making the application. In addition it is important that as long as a claim is being processed there is no need to make a fresh claim; the claim made is effective for all benefits to which the claimant is entitled up to the decision of the social insurance institution. This follows from Article 18 of the Decree of the President of the Republic No 488 of 27 April 1968.

With regard to Belgian sickness and invalidity insurance there were three forms of allowance under the Law of 9 August 1963. First there is the primary incapacity allowance payable from the time of becoming incapable of working and granted for a period of one year (in the case of miners for a period of six months). Thereafter the extended incapacity allowance was paid for two years and finally the invalidity allowance was paid in cases of permanent incapacity for work until the attainment of the age-limit (65 years for men). By the Law of 7 June 1969 these rules were altered with effect from 1 January 1970 in that, since that date, after the lapse of one year from the start of the illness (in the case of miners after a six months' period) the invalidity allowance is immediately paid. The Commission has submitted that production of a certificate as to incapacity for work is sufficient for the granting of the primary incapacity allowance. After the abovementioned periods have expired, and if the conditions are fulfilled, the invalidity allowance is paid automatically, that is, without a special application. Where an insured person, to whom these rules are applicable in Belgium, also worked in other Member States and there has a right to an invalidity pension, the Belgian social insurance institution after reaching its own decision as to the Belgian invalidity pension, forwards the file, without being requested to do so, to the competent social insurance institutions in the other Member States. In this way Article 37 of Regulation No 4 is clearly complied with. That article provides that for the purposes of the implementation of the A-type legislation (invalidity pensions irrespective of the length of insurance periods completed) the last day of the period for the grant of sickness benefits in cash shall be regarded as the day of submission of the pension claim.

Simply on the basis of this account of the legal situation one really cannot help but be surprised by the argument of the Belgian social insurance authority that if the invalidity arises abroad, and therefore no Belgian primary incapacity allowance is payable, a claim is so essential for the purposes of a Belgian invalidity pension and that in particular it is required that at the time of submission of the claim, which under Regulation No 4 may be made to a foreign social insurance institution, all conditions (incapacity for work and termination of any employment) must be fulfilled. In the proceedings it was rightly observed that this in fact amounts to saying that where the risk materializes abroad more difficult conditions are applicable and additional formalities must be observed, namely those which must be complied with for the grant of the primary incapacity allowance: production of a certificate of incapacity for work which also certifies termination of employment. It may well be asked whether this is compatible with the spirit of the Community provisions relating to social security for migrant workers, the decisive underlying principle of which is that there shall be no discrimination against workers from other Member States. When the Belgian insurance institution relies in this connexion on Article 56 (1) of the Law of 9 August 1963 which provides that only persons who have ceased all work and whose earning capacity is reduced by a certain percentage shall be recognized as incapable of working, it may also be asked whether this provision must necessarily be interpreted as meaning that these conditions must already be fulfilled when the claim is submitted. In any event one can use against this proposition the expression ‘shall be recognized as being incapable of working …’ according to which it could equally suffice that the conditions for the granting of a pension are fulfilled when the claim is being processed.

However we cannot let matters rest with these findings and particularly not with the last one, since it involves an interpretation of national law in which we clearly cannot challenge the established administrative practice.

We must, therefore, in the light of the relevant facts of the present case and the interpretation of Belgian law adopted by the Belgian insurance institution, examine in detail what emerges from the social insurance law of the Community, in particular those provisions mentioned in the judgment making the reference.

Mention should first be made of Article 28 (f) and (g) of Regulation No 3 which corresponds to Article 49 of Regulation No 1408/71. It provides:

‘(f) If the 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 benefit shall be determined solely in accordance with the legislation under which the right to benefit is opened and taking account only of the periods completed under that legislation;

(g) In cases covered by subparagraphs (e) and (f) of this paragraph, benefits already paid shall be reviewed in accordance with subparagraph (b) of this paragraph as and when the conditions required by one or more of the other legislative systems are satisfied, taking into account the aggregation of benefits as provided in the preceding article’

As the Commission has rightly pointed out, the wording of this provision shows clearly that it is not appropriate to the present case. On the one hand it is clear that on 1 November 1968, the time from which the Italian invalidity pension was granted, the conditions of the Belgian Law were also fulfilled. On the other hand if this were not the case there would result for the Italian social insurance institution an obligation to scrutinize the claim on its own initiative at the time at which the Belgian social insurance institution had determined the benefits payable. Therefore it can scarcely be inferred from Article 28 that the Belgian insurance institution is obliged to grant on its own initiative invalidity pensions from the time when all material prerequisites are fulfilled.

On the other hand the abovementioned Article 30 (1) of Regulation No 4 in conjunction with other provisions of this chapter of Regulation No 4 may be applicable in answering the question whether, after 26 October 1968 when his employment ended, Mr Balsamo was obliged to make a fresh claim for a pension to the Belgian insurance institution.

Article 30 (1) provides that an employee who wishes to receive benefits under Articles 26 to 28 of Regulation No 3 shall submit his claim to the insurance institution of his place of permanent residence and in accordance with legal provisions of the State in which he lives. Article 31 (1) (b) provides that the accuracy of the information furnished by the claimant may also be substantiated by the authorized organizations of the country in which he lives. Article 33 provides that a form shall be used for the scrutiny of claims and that transmission of this form to the competent institution of another Member State shall be in place of transmission of the supporting documents.

As regards these provisions it is, in my opinion, not necessary to determine exactly the scope of Article 30 and for example to ascertain — I say this with reference to the submissions of the Belgian insurance institution that its objections do not concern mere formalities but substantive conditions for a claim — what falls under formalities involved in claims under Article 30 and what falls under substantive law. It seems to me more important to ascertain the fundamental principle of the above-mentioned provisions of which Article 30 in particular is intended to obviate the necessity to submit several claims under the provisions of various Member States. This fundamental principle can certainly be described as being one of facilitating the enforcement of their rights for migrant workers who may claim benefits in several Member States when a risk materializes. In a system which only amounts to a coordination of national laws and not to a uniformity of social insurance laws removing all difficulties this fundamental principle in my opinion entails for all insurance institutions concerned the clear obligation to avoid any unnecessary regard for formality which might involve the danger of a loss of rights or, in other words, to realize Community interests so far as is possible in applying national law, in particular if this can be done without serious disruption of the national administrative machinery which is certainly very complicated:

However in view of what we have heard in the proceedings the Belgian insurance institution must expect to be rebuked for ignoring this fundamental principle of Community law in requiring the submission of a fresh claim from Mr Balsamo in 1974 because he continued to work for five days after the submission of his claim for a pension in Italy in 1968.

The Belgian insurance institution rejected the claim since it proceeds from the assumption that a claim for a pension is not admissible in respect of the future materialization of a risk. It therefore takes the view that the substantive conditions for allowing a pension claim must already be satisfied at the time when the claim is submitted to the insurance institution. In addition it relies on the fact that according to Community law the submission of the claim to a foreign insurance institution qualifies as a submission to the insurance institution competent in respect of the claim for benefits.

It must be admitted that the first part of this objection appears to be justified. Indeed insurance institutions cannot be expected to keep files under scrutiny for an unforeseeable length of time and, in cases where all the conditions for benefit are not yet fulfilled at the time of the submission of the claim, to allow the claim for benefits on their own initiative at a later date when all conditions are fulfilled, the verification of which can create considerable difficulties where there are factors arising abroad. However, it is perfectly clear from the account given of the facts of the case that such a situation did not exist for the Belgian insurance institution. When the documents were transmitted to it from Italy after the lapse of a considerable period of time due to the involved procedure set out in Article 34 of Regulation No 4, the Belgian insurance institution possessed all the facts necessary for a favourable decision on the claim for a pension. Therefore it was not in the least difficult for the insurance institution to come to an immediate decision on the claim for benefits with effect from the day when all the conditions for the claim were satisfied. When the institution invokes in this connexion — and here I come to the second head of its objection — the fiction of Community law that submission of a claim abroad is deemed to be submission of the claim to the Belgian insurance institution, and when it argues that at that time not all the conditions were fulfilled, this is to my mind nothing more than a reversal of the meaning of this provision which is of course intended to work to the benefit of the insured and not, on the contrary, to his disadvantage.

The following points should also be considered:

The provisions of Italian law, which are those first applicable to a claimant resident in Italy, provide that a pension shall be granted from the first day of the month following the submission of the claim if all conditions are satisfied. For this reason too there would appear to be no requirement that the claimant shall have ceased to be employed when the claim is made. Moreover under Italian law if one claim is being scrutinized there is no need to submit a fresh claim.

If one contrasts this legal situation with the opinion of the Belgian insurance institution, the claimant Mr Balsamo had the following choice: either he had to wait to submit his claim until his employment had ceased or else he had to submit two claims within a short time of each other to the insurance institution of his place of permanent residence. The first would have meant a loss of rights, a result which the Community regulations expressly sought to exclude, as has been repeatedly emphasized in the decided cases. The other option is excluded by Italian law the formal requirements of which are the first to apply. In my opinion it is evident that both solutions are unacceptable in view of the structure and spirit of Community law.

In such a situation I believe that the only sensible solution, especially since it in no way requires excessive goodwill and since it does not entail the least difficulty for administrative practice, is that Belgian law should be so applied, taking account of Community law, that it is sufficient if at the moment of the actual submission to the Belgian insurance institution all substantive conditions are fulfilled and that a pension claim may be allowed from the time when all conditions for the claim are fulfilled. On the other hand I see no justification whatever for the requirement of submitting a fresh claim which might have the possible disadvantageous effect that benefits would only be granted from the date of the submission of the fresh claim.

A consideration of the scheme and spirit of the Community regulations concerning social insurance law and, in particular, recourse to the fundamental principle of Article 30 of Regulation No 4 or the corresponding provision of Regulation No 574/72 make it possible to reply to the question referred by the Tribunal du travail of Brussels as follows:

If, under the law of one Member State an invalidity pension shall be granted without submission of a claim, then a claim which is submitted to the insurance institution of this State through the institution of the State of permanent residence of the claimant in accordance with Article 30 of Regulation No 4 or Article 36 of Regulation No 574/72 is effective if, at the time of the submission of the claim to the insurance institution of the firstmentioned State, all the necessary conditions required for the granting of an invalidity pension under its legal system are satisfied.

( 1 ) Translated from the German