Margherita Baccini v Office national de l'emploi (ONEM) (232/82)

II —Summary of the observations submitted to the Court

In the view of Mrs Baccini, who refers to the opinion of Mr Advocate General VerLoren van Themaat in Case 79/81, it is clear from the case-law of the Court of Justice that the application of Community regulations may not result in the withdrawal of rights acquired under the legislation of a Member State. Thus the application of Article 40 (4) of Regulation No 1408/71 may not entail the loss of entitlement to a pension if the national legislation by virtue of which it is paid guarantees its grant for a period longer than that provided for by the legislation of another Member State.According to Mrs Baccini, in this case account should be taken of the fact that the risks of invalidity and unemployment materialized in Belgium and that the decision establishing that she was no longer unfit for work was taken by the Belgian authorities.Mrs Baccini considers that the solution of the dispute now depends exclusively on a question of national law which is a matter for the national court alone. That question concerns the amount of the benefits to be awarded and raises the issue whether the Belgian unemployment benefit may be recieved in addition to the apportioned Italian invalidity pension, in total or within the limits laid down in the first paragraph of Article 146 of the Royal Decree of 20 December 1963.The Office National de l'Emploi, having set out the facts of the dispute, the procedure prior to the first reference to the Court of Justice for a preliminary ruling and the reasons for the second reference, stresses that according to the terms used by the Council the provisions of Article 40 of Regulation No 1408/71 are general provisions.In the view of the Office National de l'Emploi, it follows directly from that characteristic that, when Article 40 (4) of Regulation No 1408/71 provides that “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”, it is referring to any decision concerning the degree of invalidity of a migrant worker, whether that decision is positive or negative.In the opinion of the Office National de l'Emploi, that interpretation seems to be borne out by two factors: on the one hand, the text of Article 40 (4) itself, which makes no distinction between a positive or negative decision of the authorities of the competent State and, on the other, the principle of the “parallélisme des compétences”, laid down by the French Conseil d'Etat [State Council] in judgments cited in particular by Aubry and Drago in Traité du Contentieux Administratif (1962, paragraph 1058), a work to which the Cour du Travail refers. Thus the Conseil d'État stated that where a text does not indicate the authority empowered to adopt the ‘acte contraire’ to a certain measure, that is to say the measure by which it is amended or revoked, such power must be attributed to the authority authorized to adopt the initial measure.”In the opinion of the Office National de l'Emploi, there are no objective grounds for considering that under Article 40 (4) of Regulation No 1408/71 the institution of one Member State is bound by a decision taken by an institution in another Member State only if the purpose of that decision was to declare that there was invalidity. It adds that, if such an interpretation were accepted, the migrant worker would be able to recieve unemployment benefit because of his fitness for work and in addition, in respect of the same period, an invalidity pension because of his unfitness for work, which had in fact ended. Such social security advantages would result in the migrant worker being accorded more favourable treatment than the national worker contrary to Article 7 of the Treaty.The Office National de l'Emploi proposes that the Court of Justice give the following answer to the question submitted for a preliminary ruling:“The decision referred to in Article 40 (4) of Regulation No 1408/71 of the Council covers both a decision establishing invalidity and a decision establishing that the invalidity has ended.”The Commission, after setting out the Court's decision in Case 79/81 and the reasons which underlie the second reference for a preliminary ruling, states that before answering the questions submitted by the Cour du Travail it is necessary to make certain preliminary remarks concerning first, the provisions of Belgian law which the Cour du Travail is seeking to apply, secondly, certain of the grounds for the reference for a preliminary ruling and, finally, whether there has been a misuse of procedure.First, the Commission is surprised that the Cour du Travail, having annulled the contested administrative decision on the ground that it was based on the third paragraph of Article 141 of the Royal Decree of 20 December 1963, should seek to apply Article 146 of that decree.According to the Commission, the third paragraph of Article 141, in providing that the worker is to be considered unfit for work if he is in receipt of a foreign invalidity benefit for incapacity for work of 50% or more, lays down one of the conditions for entitlement to Belgian unemployment benefit. Article 146, on the other hand, lays down detailed rules relating to the overlapping of Belgian unemployment benefit and foreign invalidity benefits the grant of which does not preclude entitlement to Belgian unemployment benefit. That is the case if the incapacity for work is less than 50%.In the Commission's opinion, in so far as it is established, on the one hand, that the invalidity pension is granted in Italy only in the case of incapacity for work of at least two-thirds and, on the other, that Mrs Baccini's incapacity for work was assessed by the Belgian authorities at more than 66%, Article 146 of the Royal Decree of 20 December 1963 does not seem to be applicable to this case.According to the Commission, the question whether the maintenance of the Italian benefit is lawful can be determined only on the basis and by reference to the provisions of Community law. If that question is answered in the affirmative, Community law, as the Court stated in Case 79/81, does not permit the withdrawal of the Belgian benefit. If it is answered in the negative, Article 146 of the Belgian Royal Decree seems to be inapplicable for the reasons stated above.The Commission's second preliminary observation is that the fact that the Belgian authorities “considered it necessary” to inform the Italian institution that Mrs Baccini was no longer unfit for work does not necessarily represent a “wide” interpretation of Article 40 (4), but may be explained by the provision made in the Community legislation for the exchange of information between the authorities of the various Member States concerned.The final preliminary observation refers to the fact that, according to the grounds set out in the judgment making the reference, the decision of the Court of Justice ought to enable the Belgian court “indirectly to determine ... whether the Italian benefit has been wrongly paid”. Since the purpose of the reference for a preliminary ruling has been described in this way, the Commission argues that two questions should be considered: first, whether the legislation of one Member State may be challenged by relying upon Community law before a court in another Member State and, secondly, whether the Court of Justice has jurisdiction to give a ruling in the framework of proceedings for a preliminary ruling on the compatibility of national rules with Community rules where the application of national law, indirectly called in question by the court making the reference, does not normally fall within its jurisdiction. According to the Commission, the Court of Justice answered the first question in its judgments of 11 March 1980 in Case 104/79 Foglia v Novello [1980] ECR 745, and of 16 December 1981 in Case 244/80 Foglia v Novello [1981] ECR 3045, and more especially in paragraph 24 of the second Foglia judgment. As to the second question, the Commission, after stating that in its view there is no factor indicating a misuse of the procedure provided for in Article 177, such as for example the absence of any real dispute which might lead the Court not to give a ruling, stresses that in the Court's judgment of 20 February 1973 in Case 54/72 FOR v VKS [1973] ECR 193, the Court answered a question on the interpretation of Article 95 of the Treaty which had been submitted by an Italian court in relation to German taxation.In answer to the questions submitted by the Cour du Travail, the Commission considers that according to the text, context and object of Article 40 (4), the “decision ... concerning the degree of invalidity” to which that provision refers covers solely the decision which establishes the invalidity and gives rise to the right to payment of benefits.Article 40 of Regulation No 1408/71 lays down rules on entitlement to invalidity benefits and on the grant thereof for workers who are simultaneously subject to type A legislation (legislation based on risk) and type B legislation (legislation based on the duration of periods of insurance). In the Commission's opinion, it necessarily follows from the object of Article 40 that Article 40 (4) refers to the decision by which invalidity is established.That interpretation is confirmed by Annex IV to Regulation No 1408/71, which relates to the concordance between the legislation of Member States on conditions relating to the degree of invalidity, established on the basis of “schemes administered by Member States' institutions who have taken a decision recognizing the degree of invalidity”.The interpretation proposed by the Commission is supported by the fact that Article 40 of Regulation No 574/72, which expressly refers to Article 40 (4) of Regulation No 1408/71 and governs the determination of the degree of invalidity, is one of the provisions contained in Chapter 3 of Title IV of Regulation No 574/72 on the submission and investigation of claims for benefits. That is a result of the fact that the coordination provided for by Regulation No 1408/71 covers only the case in which there is entitlement to benefits of the same kind in more than one Member State. Within the limits of that objective, Article 40 (4) is intended to accelerate the award of invalidity pensions by avoiding differences in the assessment of the situation of the worker concerned.According to the Commission, it follows from the object of the Community rules that they do not cover the case of a decision which, by establishing that there is no longer incapacity for work, constitutes the basis for a decision altering or withdrawing invalidity benefit or refusing entitlement to a benefit of a different kind.The Commission considers that the principle of “parallélisme des compétences” contained both in Belgian and in French administrative law cannot invalidate the interpretation of Article 40 (4) which it puts forward, inasmuch as under that principle the authority empowered to adopt a given administrative measure has jurisdiction to amend that measure or adopt a contrary measure, whereas the question for a preliminary ruling refers to the legal effects of a decision of the Belgian authorities by which they determined that the invalidity which they had previously acknowledged no longer existed.The Commission adds — although this does not affect the answers to be given to the Cour du Travail — that the Belgian institution was bound to inform the Italian institution both of the decision recognizing invalidity (Article 40 (4) of Regulation No 1408/71) and of the decision withdrawing the benefit (Article 49 of Regulation No 574/72).The Commission suggests that the Court, in reply to the questions referred to it by the Cour du Travail, Mons, should rule that “Article 40 (4) of Regulation No 1408/71 must be interpreted as covering exclusively a decision recognizing invalidity and not a decision determining that there is no invalidity at a later date.”