Judgment of the Court (Third Chamber) of 10 March 1983. - Margherita Baccini v Office national de l'emploi (ONEM). - Reference for a preliminary ruling: Cour du travail de Mons - Belgium. - Case 232/82.



European Court reports 1983 Page 00583



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT - LIMITS - JURISDICTION OF NATIONAL COURT - ASSESSMENT OF THE RELEVANCE OF THE QUESTIONS RAISED AND THE NECESSITY FOR A PRELIMINARY RULING

( EEC TREATY , ART . 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - PURPOSE - INVALIDITY INSURANCE - DECISION OF A NATIONAL INSTITUTION CONCERNING THE DEGREE OF INVALIDITY OF A WORKER - CONCEPT - DECISION RECOGNIZING INVALIDITY - INCLUSION - LATER DECISION ESTABLISHING THAT THERE IS NO INVALIDITY - EXCLUSION

( EEC TREATY , ARTS 48 AND 51 ; REGULATION NO 1408/71 OF THE COUNCIL , ART . 40 ( 4 ) AND REGULATION NO 574/72 OF THE COUNCIL )

Summary

1 . THE COURT MAY NOT IN THE FRAMEWORK OF THE PROCEDURE FOR A PRELIMINARY RULING GIVE A RULING ON THE APPLICATION OF PROVISIONS OF NATIONAL LAW OR ON THE RELEVANCE OF THE REQUEST FOR A PRELIMINARY RULING . AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY , IT IS FOR THE NATIONAL COURT TO APPRECIATE , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY FOR A PRE LIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .

2 . IN ACCORDANCE WITH ARTICLES 48 AND 51 OF THE TREATY , REGULATIONS NOS 1408/71 AND 574/72 OF THE COUNCIL ARE IN PARTICULAR INTENDED TO PREVENT THE MIGRANT WORKER , AS A RESULT OF HIS MIGRATION FROM ONE MEMBER STATE TO ANOTHER , FROM LOSING THE BENEFIT OF HIS PERIODS OF EMPLOYMENT AND THUS BEING PLACED AT A DISADVANTAGE IN RELATION TO THE POSITION IN WHICH HE WOULD HAVE BEEN IF HE HAD COMPLETED HIS ENTIRE CAREER IN ONLY ONE MEMBER STATE . FOR THAT PURPOSE THEY INTRODUCED A SYSTEM OF AGGREGATION OF ALL THE PERIODS OF EMPLOYMENT WHICH MAY THUS BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFITS OF THE SAME KIND IN DIFFERENT MEMBER STATES AND FOR THE PURPOSE OF CALCULATING THE AMOUNT OF SUCH BENEFITS . BUT THE PURPOSE OF THOSE TEXTS IS NOT TO DETERMINE THE CONDITIONS FOR THE WITHDRAWAL OF SUCH BENEFITS AND THEY CANNOT HAVE THAT EFFECT .

ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 MUST THEREFORE BE INTERPRETED AS MEANING THAT ' ' THE DECISION . . . CONCERNING THE DEGREE OF INVALIDITY ' ' TO WHICH THAT PROVISION REFERS COVERS EXCLUSIVELY A DECISION RECOGNIZING INVALIDITY AND NOT A DECISION ESTABLISHING THAT THERE IS NO INVALIDITY AT A LATER DATE .

Parties

IN CASE 232/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN

MARGHERITA BACCINI

AND

OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE ) ( ONEM )

Subject of the case

CONCERNING THE INTERPRETATION OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ; CODIFIED VERSION : OFFICIAL JOURNAL 1980 , C 138 , P . 1 ) AND REGULATION NO 574/72 LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ),

Grounds

1 BY A JUDGMENT DATED 3 SEPTEMBER 1982 , WHICH WAS RECEIVED AT THE COURT ON 8 SEPTEMBER 1982 , THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ) P . 416 ; CODIFIED VERSION : OFFICIAL JOURNAL 1980 , C 138 , P . 1 ) AND REGULATION NO 574/72 OF THE COUNCIL LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).

2 THREE QUESTIONS AROSE IN THE COURSE OF A DISPUTE BETWEEN MRS BACCINI , AN ITALIAN NATIONAL , AND THE OFFICE NATIONAL DE L ' EMPLOI ( NATIONAL EMPLOYMENT OFFICE ), BELGIUM , ON THE APPLICATION OF PROVISIONS OF THE ROYAL DECREE OF 20 DECEMBER 1963 ON EMPLOYMENT AND UNEMPLOYMENT , AS AMENDED ON 11 SEPTEMBER 1969 , CONCERNING THE CALCULATION OF THE AMOUNT OF BELGIAN UNEMPLOYMENT BENEFIT WHERE THAT BENEFIT OVERLAPS WITH AN INVALIDITY PENSION GRANTED UNDER THE SICKNESS AND INVALIDITY INSURANCE SCHEME OF ANOTHER MEMBER STATE .

3 THE DETAILS OF THAT DISPUTE , WHICH GAVE RISE TO A FIRST REFERENCE FOR A PRELIMINARY RULING BY THE COUR DU TRAVAIL , MONS , ARE THE FOLLOWING : AFTER MRS BACCINI ' S ADMISSION IN 1973 TO THE BELGIAN INVALIDITY PENSION SCHEME , THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( NATIONAL SOCIAL WELFARE INSTITUTION , HEREINAFTER REFERRED TO AS ' ' THE ITALIAN INSTITUTION ' ' ), TAKING INTO ACCOUNT , IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 1408/71 , THE DECISION WHICH THE BELGIAN INSTITUT D ' ASSURANCE MALADIE-INVALIDITE ( NATIONAL SICKNESS AND INVALIDITY INSURANCE INSTITUTION , HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' ) COMMUNICATED ON THAT SUBJECT ON THE LIAISON FORMS PROVIDED FOR BY REGULATION NO 574/72 , GRANTED TO MRS BACCINI WITH EFFECT FROM 1 AUGUST 1974 AN APPORTIONED ITALIAN INVALIDITY PENSION , CALCULATED BY AGGREGATING THE ITALIAN AND BELGIAN PERIODS OF INSURANCE .

4 HAVING BECOME FIT FOR WORK AGAIN IN BELGIUM , FROM 28 APRIL TO 4 JUNE 1975 AND AGAIN FROM 1 SEPTEMBER 1977 , MRS BACCINI WAS GRANTED UNEMPLOYMENT BENEFIT IN THAT COUNTRY .

5 RELYING UPON THE FACT THAT THE ITALIAN INVALIDITY PENSION CONTINUED TO BE PAID TO MRS BACCINI AND THAT UNDER THE THIRD PARAGRAPH OF ARTICLE 141 OF THE ROYAL DECREE OF 20 DECEMBER 1963 , AS AMENDED , THERE WAS THEREFORE A LEGAL PRESUMPTION OF INCAPACITY FOR WORK WHICH EXCLUDED ANY ENTITLEMENT TO UNEMPLOYMENT BENEFIT , THE DIRECTOR OF THE REGIONAL OFFICE OF THE OFFICE NATIONAL DE L ' EMPLOI AT LA LOUVIERE ON 8 DECEMBER 1978 WITHDREW MRS BACCINI ' S UNEMPLOYMENT BENEFIT AND DIRECTED THAT SHE SHOULD REPAY THE SUMS IMPROPERLY RECEIVED .

6 THE COUR DU TRAVAIL , MONS , BEFORE WHICH MRS BACCINI APPEALED AGAINST A JUDGMENT OF THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , DECIDED BY JUDGMENT OF 3 APRIL 1981 TO REFER TO THE COURT TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY AND OF REGULATIONS NOS 1408/71 AND 574/72 .

7 IN ITS JUDGMENT OF 23 MARCH 1982 ( CASE 79/81 ( 1982 ) ECR 1063 ), THE COURT ANSWERED THOSE QUESTIONS BY RULING :

' ' ARTICLE 51 OF THE EEC TREATY , REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY AND REGULATION NO 574/72 FIXING THE PROCEDURES FOR IMPLEMENTING THAT REGULATION MUST BE INTERPRETED AS MEANING THAT WHERE , UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE , THE RIGHT OF A MIGRANT WORKER TO UNEMPLOYMENT BENEFIT DEPENDS ON HIS FITNESS FOR WORK AND SUCH FITNESS FOR WORK HAS BEEN ACCEPTED BY THE COMPETENT AUTHORITIES OF THE SAID MEMBER STATE , THOSE AUTHORITIES MAY NOT REFUSE THE WORKER IN QUESTION UNEMPLOYMENT BENEFIT ON THE GROUND THAT HE IS IN RECEIPT IN ANOTHER MEMBER STATE OF AN AGGREGATED AND APPORTIONED INVALIDITY PENSION DETERMINED IN ACCORDANCE WITH COMMUNITY RULES . ' '

8 ON THE BASIS OF THAT PRELIMINARY RULING , THE COUR DU TRAVAIL ON THE ONE HAND ANNULLED THE CONTESTED ADMINISTRATIVE DECISION ON THE GROUND THAT IT WAS ERRONEOUSLY ADOPTED ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 141 OF THE ROYAL DECREE OF 20 DECEMBER 1963 AND ON THE OTHER HAND EXAMINED MRS BACCINI ' S RIGHT TO RECEIVE UNEMPLOYMENT BENEFIT AGAIN ON THE BASIS OF ARTICLE 146 OF THE SAME ROYAL DECREE , WHICH PROVIDES :

' ' 1 . IF THE WORKERS REFERRED TO IN ARTICLE 145 ARE IN ACTUAL RECEIPT OF A PENSION THE DAILY RATE OF WHICH IS LOWER THAN THE DAILY RATE OF UNEMPLOYMENT BENEFIT . . . INCREASED BY 40% . . . THEY SHALL BE ENTITLED TO UNEMPLOYMENT BENEFIT IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE SAID RATE AND THE DAILY RATE OF PENSION BUT NOT EXCEEDING THE AMOUNT OF UNEMPLOYMENT BENEFIT . . .

2 .. . . WITHOUT PREJUDICE TO ARTICLE 142 , PARAGRAPH ( 1 ) SHALL APPLY TO AN UNEMPLOYED PERSON WHO IS ENTITLED TO :

( 1 ) . . .

( 2 ). . .

( 3 ). . . ( ROYAL DECREE OF 11 SEPTEMBER 1969 , ARTICLE 2 ) A BENEFIT GRANTED UNDER A FOREIGN SICKNESS AND INSURANCE SCHEME ON ACCOUNT OF INCAPACITY FOR WORK OF LESS THAN 50% NOT CAUSED BY AN ACCIDENT AT WORK OR OCCUPATIONAL DISEASE . ' '

9 THE COUR DU TRAVAIL , MONS , CONSIDERED THAT IN ORDER TO DETERMINE THE APPLICABILITY OF ARTICLE 146 TO THIS CASE , IT HAD TO ASCERTAIN WHETHER , HAVING REGARD TO THE TERMS OF ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 , MRS BACCINI WAS LAWFULLY ENTITLED TO THE ITALIAN BENEFIT . FOR THAT PURPOSE , IT REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' ' FOR THE PURPOSES OF THE EUROPEAN COMMUNITY LEGISLATION , DOES THE DECISION ' CONCERNING THE DEGREE OF INVALIDITY OF A CLAIMANT ' , ANY ' MULTINATIONAL ' EFFECTS OF WHICH ARE GOVERNED BY ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 , INCLUDE A DECISION THAT THERE IS NO INVALIDITY TAKEN AFTER A DECISION HAS ESTABLISHED INVALIDITY? DOES NOT THE DECISION ' CONCERNING THE DEGREE OF INVALIDITY ' REFER AS MUCH TO A DECISION THAT THERE IS NO INVALIDITY AS TO A DECISION ESTABLISHING INVALIDITY? IS NOT ARTICLE 40 ( 4 ), WHICH IS EXPRESSED IN GENERAL TERMS AND APPEARS UNDER THE HEADING ' GENERAL PROVISIONS ' , WIDER IN SCOPE THAN ARTICLE 44 OF THE IMPLEMENTING REGULATION , NO 574/22? MUST NOT ARTICLE 40 ( 4 ) BE INTERPRETED IN ACCORDANCE WITH LOGIC AND REASON IN THE LIGHT OF THE DOCTRINE OF THE ' ACTE CONTRAIRE ' OR ' PARALLELISME DES FORMES ' ( SEE AUBRY AND DRAGO ' S TRAITE DU CONTENTIEUX ADMINISTRATIF , 1962 , PARAS 1058 TO 1081 ) SO AS TO COMPENSATE FOR ANY LACUNAE IN THE COMMUNITY LEGISLATION WHICH MIGHT GIVE RISE TO SITUATIONS LITTLE SHORT OF ABSURD , SUCH AS THAT AT PRESENT BEFORE THIS COURT?

' '

10 DURING THE PROCEDURE BEFORE THE COURT , THE COMMISSION STRESSED THAT MRS BACCINI ' S INCAPACITY FOR WORK HAD BEEN ASSESSED AT MORE THAN 50% AND THAT CONSEQUENTLY ARTICLE 146 OF THE ROYAL DECREE OF 20 DECEMBER 1963 DID NOT SEEM TO BE APPLICABLE TO THE SITUATION IN THIS CASE . IT FOLLOWED , ACCORDING TO THE COMMISSION , THAT THE QUESTION , WHICH WAS SUBMITTED , ACCORDING TO THE TERMS OF THE JUDGMENT MAKING THE REFERENCE , IN ORDER TO ASCERTAIN WHETHER THAT PROVISION OF NATIONAL LAW MIGHT BE APPLIED TO MRS BACCINI , WAS NOT RELEVANT .

11 ACCORDING TO WELL-ESTABLISHED CASE-LAW , THE COURT MAY NOT IN THE FRAMEWORK OF THE PROCEDURE FOR A PRELIMINARY RULING GIVE A RULING ON THE APPLICATION OF PROVISIONS OF NATIONAL LAW OR ON THE RELEVANCE OF THE REQUEST FOR A PRELIMINARY RULING . IN THE FRAMEWORK OF THE DIVISION OF JURISDICTION BETWEEN THE NATIONAL COURT AND THE COURT OF JUSTICE LAID DOWN IN ARTICLE 177 OF THE TREATY , IT IS INDEED FOR THE NATIONAL COURT TO ASSESS , WITH FULL KNOWLEDGE OF THE FACTS OF THE CASE , THE RELEVANCE OF QUESTIONS OF LAW RAISED BY THE DISPUTE WHICH HAS BEEN BROUGHT BEFORE IT AND THE NECESSITY FOR A PRELIMINARY RULING IN ORDER TO ENABLE IT TO GIVE JUDGMENT .

12 ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 PROVIDES : ' ' A DECISION TAKEN BY AN INSTITUTION OF A MEMBER STATE CONCERNING THE DEGREE OF INVALIDITY OF A CLAIMANT SHALL BE BINDING ON THE INSTITUTION OF ANY OTHER MEMBER STATE CONCERNED , PROVIDED THAT THE CONCORDANCE BETWEEN THE LEGISLATION OF THESE STATES ON CONDITIONS RELATING TO THE DEGREE OF INVALIDITY IS ACKNOWLEDGED IN ANNEX IV . ' ' AS THE COURT STATED IN ITS JUDGMENT OF 23 MARCH 1982 , BEFORE THE ADOPTION ON 17 SEPTEMBER 1981 OF COUNCIL REGULATION NO 2793/81 ( OFFICIAL JOURNAL 1981 , L 275 , P . 1 ), WHICH AMENDED REGULATION NO 1408/71 , ANNEX IV ACCEPTED THE CONCORDANCE BETWEEN THE BELGIAN AND ITALIAN LEGISLATION ON CONDITIONS RELATING TO THE DEGREE OF INVALIDITY .

13 IN ORDER TO DEFINE THE MEANING AND SCOPE OF ARTICLE 40 ( 4 ), IT IS NECESSARY TO INTERPRET THAT PROVISION BY REFERENCE ONLY TO THE COMMUNITY REGULATIONS AND TO ARTICLES 48 AND 51 OF THE TREATY , WHICH CONSTITUTE THEIR BASIS , THEIR FRAMEWORK AND THEIR BOUNDS .

14 IT FOLLOWS FIRST FROM THE ACTUAL TERMS OF ARTICLE 40 OF REGULATION NO 1408/71 THAT THAT PROVISION LAYS DOWN EXCLUSIVELY THE RULES ON ENTITLEMENT TO INVALIDITY BENEFIT FOR WORKERS SUBJECT SUCCESSIVELY OR ALTERNATELY TO TYPE A LEGISLATION ( LEGISLATION BASED ON RISK ) AND TYPE B LEGISLATION ( LEGISLATION BASED ON THE DURATION OF PERIODS OF INSURANCE ). THE WORDING OF ANNEX IV TO REGULATION NO 1408/71 , TO WHICH ARTICLE 40 ( 4 ) REFERS , CONFIRMS THAT IT IS INDEED THE ' ' DECISION RECOGNIZING THE DEGREE OF INVALIDITY ' ' WHICH IS BINDING ON THE OTHER MEMBER STATES AND IS ALONE COVERED BY ARTICLE 40 ( 4 ).

15 THAT INTERPRETATION OF THE TEXT OF ARTICLE 40 ( 4 ) IS , SECONDLY , CONFIRMED BY THE CONTEXT OF THAT PROVISION AND REQUIRED BY THE PURPOSE OF THE COMMUNITY REGULATIONS .

16 ON THE ONE HAND , THE PROVISIONS CONCERNING INVALIDITY BENEFITS , CONTAINED IN CHAPTER 3 OF TITLE IV OF REGULATION NO 574/72 LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/81 , LAY DOWN EXCLUSIVELY THE RULES ON THE SUBMISSION AND INVESTIGATION OF CLAIMS FOR BENEFIT AND DO NOT LAY DOWN THE CONDITIONS FOR THE WITHDRAWAL OF BENEFITS .

17 ON THE OTHER HAND , IN ACCORDANCE WITH ARTICLES 48 AND 51 OF THE TREATY , REGULATIONS NOS 1408/71 AND 574/72 OF THE COUNCIL ARE IN PARTICULAR INTENDED TO PREVENT THE MIGRANT WORKER , AS A RESULT OF HIS MIGRATION FROM ONE MEMBER STATE TO ANOTHER , FROM LOSING THE BENEFIT OF HIS PERIODS OF EMPLOYMENT AND THUS BEING PLACED IN A WORSE POSITION THAN THAT IN WHICH HE WOULD HAVE BEEN IF HE HAD COMPLETED HIS ENTIRE CAREER IN ONLY ONE MEMBER STATE . FOR THAT PURPOSE THEY INTRODUCED A SYSTEM OF AGGREGATION OF ALL THE PERIODS OF EMPLOYMENT WHICH MAY THUS BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFITS OF THE SAME KIND IN DIFFERENT MEMBER STATES AND FOR THE PURPOSE OF CALCULATING THE AMOUNT OF SUCH BENEFITS . BUT THE PURPOSE OF THOSE TEXTS IS NOT TO DETERMINE THE CONDITIONS FOR THE WITHDRAWAL OF SUCH BENEFITS , AND THEY CANNOT HAVE THAT EFFECT .

18 IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE ANSWER TO THE QUESTIONS SUBMITTED BY THE COUR DU TRAVAIL , MONS , SHOULD BE THAT ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT ' ' THE DECISION . . . CONCERNING THE DEGREE OF INVALIDITY ' ' TO WHICH THAT PROVISION REFERS COVERS EXCLUSIVELY A DECISION RECOGNIZING INVALIDITY AND NOT A DECISION ESTABLISHING THAT THERE IS NO INVALIDITY AT A LATER DATE .

Decision on costs

COSTS

19 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS 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 ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR DU TRAVAIL , MONS , BY JUDGMENT OF 3 SEPTEMBER 1982 , HEREBY RULES :

ARTICLE 40 ( 4 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT THE ' ' DECISION . . . CONCERNING THE DEGREE OF INVALIDITY ' ' TO WHICH THAT PROVISION REFERS COVERS EXCLUSIVELY A DECISION RECOGNIZING INVALIDITY AND NOT A DECISION ESTABLISHING THAT THERE IS NO INVALIDITY AT A LATER DATE .