OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 3 MARCH 1983 ( 1 )

Mr President,

Members of the Court,

My own contribution to this new chapter in the long struggle between Mrs Baccini and the Office National de l'Emploi [National Employment Office], Belgium, will not be long. The grounds put forward by the Commission in support of its proposed answer (which are summarized in the final paragraph on page 13 and on pages 14 and 15 of the Report for the Hearing and which were further explained at the sitting) seem to me to be totally convincing. Like the Commission, I therefore propose 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 covering exclusively a decision recognizing invalidity and not a decision establishing that there is no invalidity at a later date.” Moreover, I reached the same conclusion in the first Baccini case (Case 79/81). Indeed, it was apparent even from the file on that first Baccini case that the question which the Cour du Travail has now referred to the Court would also play a part in the solution of the dispute.

Clearly it would be possible for me to stop here. However, for the sake of a proper understanding of the meaning of the proposed answer with a view to the determination of the dispute in the national court, I consider it useful to add the following remarks. If the Court follows my opinion, the result would be that, from the Community viewpoint, the continued payment of the Italian invalidity pension up to the date on which the authorities of that country withdrew it remained totally permissible.

On the other hand, it has been discovered from the observations of Mrs Baccini that Italian case-law makes retroactive withdrawal of that Italian benefit impossible. It may therefore be assumed that the continuation of the Italian payments over a certain period after the date on which Mrs Baccini was once again declared fit for work in Belgium was also lawful under Italian law.

Mrs Baccini was therefore, according to the actual terms of the judgment of the Cour du Travail, Mons (at page 9) “lawfully entitled to the benefit referred to in Article 146 (2) and (3) of the Belgian Royal Decree of 20 December 1963”.

The wholly lawful continued payment of the Italian benefit after Mrs Baccini's invalidity has ceased does not alter the fact, on the other hand, that those benefits were at the time paid by reason of an incapacity for work resulting from a degree of invalidity considerably higher than 50%. Under those circumstances, the Commission expresses surprise at pages 5 to 8 of its observations that the Cour du Travail, Mons, should nevertheless consider the application of Article 146, already cited, which subjects to certain conditions the deduction of foreign benefit awarded by reason of a degree of invalidity lower than 50%. However, whether, in spite of the circumstances described, the deduction of the Italian invalidity benefit from the Belgian, unemployment benefit is made possible by Article 146 (2) and (3) of the Royal Decree of 20 December 1963, the essential parts of which were cited by the Cour du Travail, Mons, at page 9 of its judgment, is a question of national law which only that court will be able to answer.

It seems to me that the only matter of importance for the Court in that regard is that such an interpretation would not, as the Commission's representatives confirmed at the sitting, conflict with the Court's judgment in the first Baccini case or with the general Community law applicable. On the other hand, it seems to me that the fact that Community law in itself wholly permits a national provision against overlapping for that purpose refutes the main argument put forward by the Office National de l'Emploi at the sitting, to the effect that the interpretation proposed by the Commission would under certain circumstances place migrant workers in a more advantageous position than that of national workers.

( 1 ) Translated from the Dutch.