Judgment of the Court of 9 March 1976. - Giovanni Balsamo v Institut national d'assurance maladie-invalidité. - Reference for a preliminary ruling: Tribunal du travail de Bruxelles - Belgium. - Case 108-75.



European Court reports 1976 Page 00375

Greek special edition Page 00155

Portuguese special edition Page 00169

Spanish special edition Page 00155



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - BENEFIT GRANTED ON THE BASIS OF NATIONAL LEGISLATION ALONE - ALTERATION IN CASE OF FULFILMENT OF THE CONDITIONS FOR THE GRANT OF BENEFITS OBTAINED THROUGH THE LEGISLATION OF ANOTHER MEMBER STATE

( ARTICLE 28 ( 1 ) ( F ) AND ( G ) OF REGULATION NO 3 OF THE COUNCIL ; ARTICLE 49 OF REGULATION NO 1408/71 OF THE COUNCIL )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - BENEFITS - CLAIM - LODGING - PROCEDURE

( ARTICLE 30 OF REGULATION NO 4 OF THE COUNCIL ; ARTICLE 36 ( 1 ) OF REGULATION NO 574/72 OF THE COUNCIL )

Summary

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 EX- CLUSIVELY 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 AC- CORDANCE 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 .

Parties

1 - LANGUAGE OF THE CASE : FRENCH .

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

GIOVANNI BALSAMO , RESIDING AT 21 CORSO DON MINZONI , ASTI ( ITALY )

AND

INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE , 211 AVENUE DE TERVUREN , WOLUWE SAINT-PIERRE ,

Subject of the case

ON 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 . 12 . 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 ),

Grounds

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 .

Decision on costs

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 .

Operative part

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 .