1.The Institut National d'Assurance Maladie-Invalidité, after referring to the facts of the case and to the relevant Belgian legislation and to the order making the reference by the Cour de Cassation, submits essentially the following observations :— Claims for benefit by migrant workers and the scrutiny of those claims under Anieles 26 to 28 of Regulation No 3 are governed by Regulation No 4. Articles 33 and 34 of that regulation provide that a form shall be used for the scrutiny of such claims which must, in particular, contain the detail and total of the insurance periods and periods assimilated thereto completed by the insured person under the legislation of each of the Member States to which he has been subject. Those articles also provide that the sending of that form to the competent institutions of another Member State supersedes the forwarding of supporting documents and that the scrutineer institution shall enter on the form the details of the insurance periods or periods assimilated thereto completed under the legislation to which it is subject and must send the form thus completed to each of the competent institutions, which must determine the rights which arise under its own legislation, regard being had to the provisions of Articles 26 to 28 of the regulation, and which must also state the amount of benefit which the claimant may claim, for those insurance periods and periods assimilated thereto completed solely under the legislation applied by it without application of the provisions of Article 27. Those articles further provide for the whole of that information to be entered on the form together with an indication of rights of appeal and the periods of time within which they are to be brought. The form must then be returned to the scrutineer institution.— In the present case Form E 26 did not state that the period from 19 August to 1 December 1967 was to be deemed to be an insurance period or a period assimilated thereto. Despite repeated requests from the Belgian institution the German institution did not at any time amend Form E 26 and refused to forward a revised form. The Belgian institution was thus unable to include the period in question for the purposes of aggregation since it was not indicated as such by the German institution on the form intended for this purpose.— The Belgian institution does not deny that information may be given in addition to Form E 26 and acknowledges that supplementary explanations as to its terms are often necessary. Nevertheless, in its opinion, those explanations cannot replace Form E 26, when they are in summary form or too brief, as in the present case, in particular when they concern periods which are not mentioned in that document. In fact Form E 26 is a document of prime importance in this respect whose nature and objective are to certify that there have been insurance periods completed under the legislation of the various competent institutions. Forms E 26 and E 27, far from being of value simply for information purposes, are official documents which, pursuant to Article 27 of Regulation No 3 and Articles 13 (1) (a), 33 and 34 of Regulation No 4, give details of the actual periods of insurance or periods assimilated thereto recognized as such by the institutions of the Member States where they have been completed. For a consideration of the conditions for the acquisition of a right to receive benefits, only those insurance periods which are included on the form are valid, where the aggregation of the periods of insurance is necessary. On the other hand any period not included on Form E 26 or E 27 is not recognized as a period of insurance, or period treated as such, by the relevant institution which completed the Form E 26.— By judgment of 6 June 1972 in Case 2/72 Murru v Caisse Régionale d'Assurance Maladie de Paris [1972] ECR 333, the Court of Justice held that, in order to ascertain whether and to what extent a period of unemployment may be assimilated to a period of employment for the purpose of determining the entitlement of a migrant worker to an invalidity pension, reference must be made to the legislation under which such period was completed. That complies with the principle laid down by Articles 27 and 28 of Regulation No 3 and by Article 51 of the Treaty which expressly provides for the aggregation of all periods taken into account under the legislation of the various Member States. It is clear that the principle of aggregation of insurance periods would be undermined if the Belgian institution, in examining whether the conditions had been satisfied for the acquisition of a right to invalidity benefit, had to take into consideration a period of unemployment in Germany which cannot be taken into account in that State to calculate the invalidity pension, since it was subsequent to the occurrence of the risk, and which cannot in any event be taken into account for the fulfilment of the conditions of insurance provided for in that country.— In reaching a solution to the problem it is therefore necessary to follow the guidelines of the case-law of the Court of Justice on this matter, which emerge from the judgment of 9 July 1975 in Case 20/75 D'Amico [1975] ECR 891 where the Court held that “under Article 51, implementing regulations must secure for migrant workers aggregation ... of all periods taken into account under the laws of the several countries ”; and from the judgment of 5 December 1967 in Case 14/76 Welchner [1967] ECR 331 where the Court held that “... the term ‘assimilated periods’means periods treated as insurance periods or, where applicable, as periods of employment, as defined in the legislation under which they were completed, in so far as they are regarded by the said legislation as being equivalent to insurance periods or periods of employment” and “in particular, the phrase ‘in so far as they are regarded ... as being equivalent...’ shows that the regulation is also referring to the conditions under which national law will regard a given period as being equivalent to insurance periods properly so called”.— Articles 33 and 34 of Regulation No 4 provide for the use of certain forms for the communication of periods of insurance and periods assimilated thereto which each competent institution recognizes by entering them on the correct form. That system guarantees that a period of insurance completed in a Member State other than the competent Member State is taken into consideration and the question whether such a period is valid must be determined by the institution applying the legislation under which that period was completed. If th* competent institution ignores the info: mation given on Form E 26, that entails great inconvenience for the insurance institutions which must have precise information available in order to be able to determine whether the claimant satisfies the necessary conditions for entitlement to benefits; those inconveniences arise, inter alia, from the fact that incomplete or imprecise information may thus be given and that different interpretations might therefore be possible.— In conclusion, the Belgian institution considers that it is necessary in principle to adhere to the information given on Form E 26. Alternatively, if the Court should take the view that Community rules do not prescribe the mandatory use of a certain document and that another document may be used the Belgian institution considers it to be essential that that other document should provide the guarantees which Anieles 33 and 34 of Regulation No 4 were intended to secure in relation to the forms provided for in the context of the application of the EEC regulations. Furthermore, regard must be had to the relevant German legislation to determine whether the period completed by Mr Knoeller in Germany may be regarded as an assimilated period.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.