3.

I have already recalled that, for the purposes of Article 30 (1) of Regulation No 3 and of Article 61 (5) of Regulation No 1408/71 the competent national institution which receives a claim for insurance benefits in connexion with an accident at work must also take into consideration, in order to assess the degree of invalidity, accidents which have occurred previously under the legislation of another Member State as if they had occurred under the legislation which it administers; provided, that is, that the legislation of the State to which the institution in question belongs lays down that previous accidents which have occurred within the ambit of that legislation must be taken into account. The wording of the two provisions in question does not provide any basis for treating accidents which occur subsequently abroad under the laws of another Member State as equivalent to those which take place in the sphere governed by national legislation. Both provisions merely refer to ‘accidents at work or occupational diseases which have occurred or have been confirmed previously’, and the adverb ‘previously’ must be understood as referring to the time of the occurrence or confirmation of the accident (or disease) in respect of which the pension is claimed from the institution of a Member State (in the present case, the German institution). It appears to me that the word used is so decisive as to be proof against interpretative subtlety. Furthermore, it is expressly recognized both by the Agent of the Commission (cf. reply, p. 10) and in the arguments of Mr Barion (cf. his observations, p. 2) that the scope of the above-mentioned provisions cannot be extended to the point of including the hypothetical obligation on national institutions of the Member States to take into consideration ‘subsequent’ accidents and diseases. It is significant that in order to obtain that result Barion should have relied in his arguments, as I shall subsequently relate, on other sources of Community law. The literal interpretation is confirmed by the purpose the system created by the provisions in question. Article 30 (1) of Regulation No 3 and Article 61 (5) of Regulation No 1408/71 are undoubtedly intended to ensure that workers who are required to move within the territory of the Community by reason of their work and who have suffered two or more accidents in different Member States are accorded protection in matters of pensions equal to that provided by the legislation of a single Member State for workers who have suffered a number of accidents, all of them under the legislation of that State. However, that purpose has been implemented by laying down the requirement that the aggregate degree of incapacity shall be assessed by the institution of the Member State which is competent in respect of the insurance benefits for the last accident (or for the last occupational disease), not by the institution of the State which is competent in respect of the first accident. To put the matter more clearly, the above-mentioned provisions entail taking as the point of reference the legislation of the Member State under which the last accident occurred (in the present case, the Italian legislation); in the first place, to ascertain whether such legislation takes previous accidents into consideration in order to assess the degree of incapacity and, if so, to treat the effects of the previous accident occurring under the legislation of another Member State as being equivalent to those which that accident would have produced had it occurred under the legislation applicable to the subsequent accident. This is also provided in Article 72 of Regulation No 574/72 of the Council (fixing the procedure for implementing Regulation No 1408/71). Article 72 (1) in fact provides that ‘In order to assess the degree of incapacity in the case referred to in Article 61 (5) of the regulation, a worker shall supply the competent institution of the Member State to whose legislation he was subject at the time when the accident at work was sustained … with all information on previous accidents at work sustained … by him when he was subject to the legislation of any other Member State …’. Article 72 (2) in its turn provides that ‘In accordance with the legislation which it administers in respect of the acquisition of the right to benefit, and the determination of the amount of benefit, the competent institution shall take into account the degree of incapacity caused by those previous cases’. As we see, there is no reference to the hypothesis that the institution to which the worker applied at the time of the first accident must take into consideration the effects of the subsequent accident.