3.

The solution suggested by the Government of the French Republic and the Commission to the effect that the case should be referred back to the Belgian Fund may admittedly be appropriate on the basis of a literal interpretation of Regulation No 1408/71. However, I consider that, in this case, the Court should not confine itself to a purely literal interpretation, since the end result would not be compatible either with the meaning and purpose of Regulation No 1408/71 or with the requirements of effective legal protection. It is self-evident, without any further explanation being called for, that it would be manifestly unjust to refer Mr Deghillage's case back to the Belgian Fund, since it has already taken thirteen months to adopt an incorrect onepage decision and a further five weeks to discharge its duty to forward the claim without delay to the French institution. Since Mr Deghillage spent in France 20 of the 30 years in which he was engaged in hazardous work, the existence of a substantive obligation on the part of the French institution to pay the contested benefits cannot seriously be disputed. Moreover, it is not apparent why the French institution should derive from the wrongful conduct of the Belgian Fund the advantage of not having to pay benefits which it is under a substantive duty to grant. In seeking an appropriate solution to this legal issue the aim pursued by the Community legislature in adopting Regulation No 1408/71 must not be left out of account, namely ‘guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence’. (a) It is necessary to consider in the first place whether Article 86 of Regulation No 1408/71 really is only procedural in scope in so far as it lays down time-limits for the submission of claims, or whether it can be given a wider meaning. Article 86 provides that any claim, declaration or appeal which should have been submitted, in order to comply with the legislation of one Member State, within a specified period to an authority of that State may be submitted within the same period to a corresponding authority of another Member State. In such a case the authority receiving the claim is to forward it without delay to the competent authority of the Member State concerned. The date on which the claim was submitted to the authority of the second State is to be considered as the date of its submission to the competent authority. Hence where a claim is submitted to an authority of a Member State other than that under the legislation of which the benefit must be awarded, that authority has no power to determine the admissibility of the claim in question. That power belongs exclusively to the authority of the Member State under the legislation of which the benefit must be awarded and to which the claim must in all circumstances be forwarded. ( 4 ) The next question is whether Article 86 is capable of being interpreted as referring not only to the submission of claims in time but also to the suspension of certain periods prescribed by national legislation. One factor in favour of such an interpretation of Article 86 would be that the claimant is not in a position to influence the institution not under a duty to award the benefits with regard to the transmission of the claim ‘without delay’ to the institution which is under such duty. The simplified procedure provided for by Article 86 for the benefit of claimants would lose much of its effectiveness if the institution not under a duty to award the benefits could, through negligence or dilatory conduct, nullify the very advantages which Article 86 gives to the claimant. However attractive such an interpretation of Article 86 might seem — and the Court's previous decisions on that provision do not rule it out — certain objections could be advanced if the Court of Justice were to state its position on that general question here, especially since the practical implications of such an interpretation are not fully apparent. In the event, there is a special provision relating to occupational diseases in Regulation No 1408/71 which appears to offer a solution to the present dispute. (b) Since, according to a consistent line of cases, ( 5 ) the Court provides national courts with criteria for the interpretation of Community law which may be useful to them in reaching their decisions, the question submitted by the cour d'appel de Douai should be answered in the light of all the provisions of Community law, even those not expressly mentioned in the question. I shall therefore consider, in the light of those previous decisions, whether Article 57 (2) of Regulation No 1408/71 can be applied to these proceedings. Article 57 (2) of Regulation No 1408/71 reads as follows: ‘If under the legislation of a Member State the granting of benefits in respect of an occupational disease is subject to the condition that the disease in question was first diagnosed within its territory, such condition shall be deemed to be fulfilled if the disease was first diagnosed in the territory of another Member State.’ I take this provision to contain a further procedural advantage for the claimaint: the institution of the Member State which is under a duty to pay the benefits must recognize the first diagnosis of an occupational disease as valid even where that diagnosis is made in the territory of another Member State. In that respect Article 57 (2) derogates from Article 57 (1), which provides that benefits are to be ‘awarded exclusively under the legislation of the last of these States ’. That may indeed be so, in general terms, as regards the evaluation of the amount of the benefit and the procedure for granting it, but it does not apply as regards the first diagnosis of an occupational disease. If, therefore, the institution required to pay the benefits must recognize a diagnosis made in another Member State that the person concerned is suffering from an occupational disease, that must also be true where that diagnosis was not made in accordance with the procedural requirements of the Member State required to pay the benefits. In fact, it is conceivable that when the occupational disease is diagnosed, it has not yet been established which Member State is under a duty to pay the benefits. Moreover, the doctor called upon to diagnose the disease cannot be required to know the procedural rules of other Member States' social security legislation. Consequently, Article 57 (2) of Regulation No 1408/71 must be interpreted as meaning that where there is a requirement in the legislation of a Member State making the award of benefits in respect of an occupational disease subject to the disease having been diagnosed for the first time within the territory of that Member State, that requirement is deemed to be fulfilled even if the disease in question was diagnosed in the territory of another Member State and even if that diagnosis was made in accordance with the procedural rules ofthat Member State. The French Centre de sécurité sociale de travailleurs migrants also seems to have acted on that assumption when in its — admittedly brief — letter of 28 April 1983 to the French Fund it asked the latter simply to ascertain whether the work done by Mr Deghillage in France was capable of causing the impairment diagnosed in his case. Thus the French Fund was not asked to go through the whole procedure for establishing that the claimant was suffering from an occupational disease but merely to state its views on one particular aspect of the case. However, it should also be mentioned that it is not altogether clear whether under French legislation a condition for the award of benefits in respect of an occupational disease is that the disease must have been diagnosed for the first time in the territory of the French Republic. Admittedly, certain provisions of the French Social Security Code seem to suggest that this is the case, but that is a matter which may have to be resolved by the national court. That problem does not however need to be resolved in this case. If the diagnosis of an occupational disease made in accordance with the procedural rules of the country of residence of the doctor suffices even where the legislation of the Member State which is under a duty to pay the benefits requires that diagnosis to have been made in its territory, then a fortiori that first diagnosis must suffice where no such requirement is expressly laid down by the Member State which is under a duty to pay the benefits. Here too, the basic consideration must apply that the doctor who first diagnoses an occupational disease cannot be expected to know the procedural rules of other Member States' social security legislation. Lastly, it should also be mentioned for the sake of clarity that the second audiogram provided for in Table No 42 appended to Decree No 46-2959, as amended by Decree No 81-507, must still be regarded as part of the first diagnosis of an occupational disease for the purposes of Article 57 (2) of Regulation No 1408/71, since that regulation draws a distinction between diagnosis of an occupational disease for the first time and aggravation of the worker's condition (Article 60).