Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - AGGREGATION OF INSURANCE PERIODS - COMPETENT INSTITUTION - DETERMINATION - LEGISLATION APPLICABLE - LEGISLATION OF THE MEMBER STATE WHEREIN THE WORKER IS OR WAS LAST EMPLOYED
( REGULATION NO 1408/71 OF THE COUNCIL , ARTS 13 ( 2 ) ( A ) AND 18 )
2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - CALCULATION OF BENEFIT - TAKING INTO ACCOUNT OF A PERIOD OF INCAPACITY FOR WORK UNDER THE LEGISLATION OF ANOTHER MEMBER STATE - REDUCTION OF BENEFIT PURSUANT TO ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 - PERMISSIBILITY
( REGULATION NO 1408/71 OF THE COUNCIL , ARTS 40 ( 3 ) AND 46 ( 3 ))

1 . ONLY THE COMPETENT INSTITUTION OR INSTITUTIONS OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER IS OR WAS LAST EMPLOYED ARE COMPETENT TO AGGREGATE THE INSURANCE PERIODS IN ACCORDANCE WITH ARTICLE 18 OF REGULATION NO 1408/71 AND ONLY THE LEGISLATION OF THAT MEMBER STATE IS APPLICABLE TO SICKNESS BENEFIT BY VIRTUE OF ARTICLE 13 ( 2 ) ( A ) OF THAT REGULATION .

2.INVALIDITY BENEFIT DUE UNDER THE LEGISLATION OF A MEMBER STATE FOLLOWING A PERIOD OF INCAPACITY FOR WORK DURING WHICH THE WORKER RECEIVED BENEFIT IN RESPECT OF THAT INCAPACITY , INCLUDING BENEFIT FROM ANOTHER MEMBER STATE , WHICH IS TO BE TAKEN INTO ACCOUNT PURSUANT TO ARTICLE 40 ( 3 ) OF REGULATION NO 1408/71 MAY , WHERE APPROPRIATE , BE VALIDLY REDUCED PURSUANT TO ARTICLE 46 ( 3 ) OF THAT REGULATION .

IN CASE 150/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOCIAL SECURITY COMMISSIONER FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE HIM BETWEEN
LUIGI COPPOLA
AND
INSURANCE OFFICER ,

ON THE INTERPRETATION AND VALIDITY OF CERTAIN PROVISIONS 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 ),

1 BY A DECISION RECEIVED AT THE COURT ON 13 MAY 1982 , THE SOCIAL SECURITY COMMISSIONER REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF ARTICLES 13 , 18 AND 40 AND THE VALIDITY OF ARTICLE 46 ( 3 ) OF REGULATION ( EEC ) 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 ) WITH REGARD TO INVALIDITY AND SICKNESS BENEFITS .

2 THE QUESTIONS WERE RAISED IN PROCEEDINGS CONCERNED WITH THE UNITED KINGDOM INSURANCE OFFICER ' S REFUSAL TO GRANT A UNITED KINGDOM INVALIDITY PENSION TO LUIGI COPPOLA , A WORKER OF ITALIAN NATIONALITY RESIDING IN ITALY .

3 FROM OCTOBER 1960 TO AUGUST 1973 MR COPPOLA WAS EMPLOYED IN THE CHEMICAL INDUSTRY IN THE UNITED KINGDOM AND PAID CONTRIBUTIONS TO THE SOCIAL SECURITY SCHEME THERE . ON HIS RETURN TO ITALY HE WORKED FOR A PERIOD AS A BUILDING LABOURER AND WAS INSURED UNDER THE ITALIAN SOCIAL SECURITY SCHEME . HE FELL ILL AND ON 30 NOVEMBER APPLIED FOR AN ITALIAN INVALIDITY PENSION WHICH WAS AWARDED TO HIM IN 1976 WITH EFFECT FROM 1 DECEMBER 1974 ON THE BASIS OF PARTIAL INVALIDITY .

4 IN ACCORDANCE WITH COMMUNITY LEGISLATION , THE APPLICATION FOR ITALIAN INVALIDITY BENEFIT WAS PASSED TO THE UNITED KINGDOM AUTHORITIES TO ENABLE THEM TO CONSIDER WHETHER MR COPPOLA WAS ENTITLED TO UNITED KINGDOM INVALIDITY BENEFIT . HOWEVER , THE INSURANCE OFFICER CONSIDERED THAT MR COPPOLA DID NOT SATISFY THE MEDICAL CONDITIONS AS TO THE DEGREE OF INCAPACITY FOR WORK LAID DOWN BY UNITED KINGDOM LEGISLATION FOR THE AWARD OF SICKNESS OR INVALIDITY BENEFITS . HE THEREFORE REFUSED TO GRANT HIM A UNITED KINGDOM INVALIDITY PENSION . FOLLOWING AN APPEAL BY MR COPPOLA , THAT DECISION WAS UPHELD BY THE LOCAL TRIBUNAL AFTER A FURTHER MEDICAL REPORT .

5 THE CASE WAS BROUGHT BEFORE THE SOCIAL SECURITY COMMISSIONER WHO TOOK THE VIEW THAT HE HAD TO CONSIDER NOT ONLY WHETHER MR COPPOLA WAS ENTITLED TO INVALIDITY BENEFIT BUT ALSO WHETHER HE WAS ENTITLED TO SICKNESS BENEFIT . SINCE CONSIDERATION OF MR COPPOLA ' S ENTITLEMENT TO UNITED KINGDOM SICKNESS AND INVALIDITY BENEFITS RAISED CERTAIN QUESTIONS OF COMMUNITY LAW , THE SOCIAL SECURITY COMMISSIONER STAYED THE PROCEEDINGS AND REFERRED A NUMBER OF QUESTIONS TO THE COURT FOR A PRELIMINARY RULING CONCERNING THE RELEVANT PROVISIONS OF REGULATION NO 1408/71 OF THE COUNCIL .

SICKNESS BENEFIT
6 AS REGARDS SICKNESS BENEFIT , THE SOCIAL SECURITY COMMISSIONER FOUND THAT WITH RESPECT TO ONE OR POSSIBLY TWO PERIODS DURING WHICH MR COPPOLA WAS IN HOSPITAL OR CONVALESCENT , AS SHOWN BY HIS FILE , NAMELY FROM 30 MARCH TO 15 MAY 1975 AND FROM 22 TO 26 JUNE 1976 , THE MEDICAL CONDITIONS REGARDING INCAPACITY FOR WORK WERE SATISFIED . BUT MR COPPOLA DID NOT SATISFY , MERELY BY HIS CONTRIBUTIONS TO THE UNITED KINGDOM SOCIAL SECURITY SCHEME DURING THE PERIOD TO BE TAKEN INTO ACCOUNT FOR THAT PURPOSE , THE CONTRIBUTION CONDITIONS LAID DOWN BY UNITED KINGDOM LEGISLATION . THE SOCIAL SECURITY COMMISSIONER NEVERTHELESS RAISED THE QUESTION WHETHER THE CONTRIBUTIONS PAID BY MR COPPOLA TO THE ITALIAN SOCIAL SECURITY SCHEME AFTER HIS RETURN TO ITALY MIGHT BE TAKEN INTO ACCOUNT BY VIRTUE OF THE PROVISIONS OF REGULATION NO 1408/71 OF THE COUNCIL .

7 IN THAT RESPECT , THE SOCIAL SECURITY COMMISSIONER REFERS TO ARTICLE 18 ( 1 ) OF REGULATION NO 1408/71 CONCERNING THE AGGREGATION OF INSURANCE PERIODS FOR SICKNESS BENEFITS , WHICH PROVIDES AS FOLLOWS :
' ' THE COMPETENT INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS CONDITIONAL UPON THE COMPLETION OF INSURANCE PERIODS SHALL , TO THE EXTENT NECESSARY , TAKE ACCOUNT OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE AS IF THEY WERE PERIODS COMPLETED UNDER ITS OWN LEGISLATION . ' '
8 THE FIRST THREE QUESTIONS SUBMITTED BY THE SOCIAL SECURITY COMMISSIONER ARE CONCERNED ESSENTIALLY WITH THE APPLICATION OF THAT ARTICLE AND MORE PARTICULARLY WITH THE QUESTION OF DETERMINING WHICH INSTITUTION IS COMPETENT TO AGGREGATE THE INSURANCE PERIODS NECESSARY FOR THE AWARD OF SICKNESS BENEFITS IN THE CASE OF A WORKER EMPLOYED SUCCESSIVELY IN TWO OR MORE MEMBER STATES AND TO WHAT LEGISLATION SUCH A WORKER IS SUBJECT WITH REGARD TO SICKNESS BENEFITS .

9 THE TERM ' ' COMPETENT INSTITUTION ' ' IS DEFINED IN ARTICLE 1 ( O ) OF REGULATION NO 1408/71 AS MEANING IN PARTICULAR :
' ' ( I ) THE INSTITUTION WITH WHICH THE PERSON CONCERNED IS INSURED AT THE TIME OF THE APPLICATION FOR BENEFIT ,
OR
( II)THE INSTITUTION FROM WHICH THE PERSON CONCERNED IS ENTITLED OR WOULD BE ENTITLED TO BENEFITS IF HE OR A MEMBER OR MEMBERS OF HIS FAMILY WERE RESIDENT IN THE TERRITORY OF THE MEMBER STATE IN WHICH THE INSTITUTION IS SITUATED ,
OR
( III)THE INSTITUTION DESIGNATED BY THE COMPETENT AUTHORITY OF THE MEMBER STATE CONCERNED . ' '
10 THAT DEFINITION MUST BE APPLIED WITHIN THE FRAMEWORK OF ARTICLE 18 ( 1 ), IN THE LIGHT OF THE GENERAL RULE CONTAINED IN ARTICLE 13 OF REGULATION NO 1408/71 , WITH REGARD TO DETERMINATION OF THE APPLICABLE LEGISLATION . ARTICLE 13 ( 1 ) ESTABLISHES THE PRINCIPLE THAT ' ' A WORKER TO WHOM THIS REGULATION APPLIES SHALL BE SUBJECT TO THE LEGISLATION OF A SINGLE MEMBER STATE ONLY ' ' . ARTICLE 13 ( 2 ) ( A ) PROVIDES THAT ' ' A WORKER EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THE STATE EVEN IF HE RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE ' ' .

11 BY VIRTUE OF THAT PROVISION , AND IN THE ABSENCE OF CONTRARY PROVISIONS REFERRING TO THE PARTICULAR TYPE OF BENEFIT IN QUESTION , ONLY THE LEGISLATION OF THE STATE IN WHOSE TERRITORY THE WORKER IS EMPLOYED IS THEREFORE APPLICABLE . ALTHOUGH THAT PROVISION DOES NOT EXPRESSLY MENTION THE CASE OF A WORKER WHO IS NOT EMPLOYED WHEN HE SEEKS SICKNESS BENEFIT , IT IS APPROPRIATE TO INTERPRET IT AS MEANING THAT , WHERE NECESSARY , IT REFERS TO THE LEGISLATION OF THE STATE IN WHOSE TERRITORY THE WORKER WAS LAST EMPLOYED .

12 IT FOLLOWS FROM THE FACT THAT , BY VIRTUE OF ARTICLE 13 ( 2 ) ( A ), THE LEGISLATION OF ONLY ONE MEMBER STATE IS APPLICABLE , THAT THE INSTITUTION OR INSTITUTIONS OF A SINGLE MEMBER STATE , NAMELY THE STATE IN WHOSE TERRITORY THE WORKER IS OR WAS LAST EMPLOYED , MUST BE CONSIDERED COMPETENT FOR THE PURPOSE OF THE APPLICATION OF ARTICLE 18 ( 1 ). THAT CONCLUSION IS MOREOVER CONFIRMED BY ARTICLE 16 OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) REGARDING THE APPLICATION OF THE PROVISIONS OF REGULATION NO 1408/71 RELATING TO SICKNESS , AND MORE PARTICULARLY ARTICLE 18 OF REGULATION NO 1408/71 . BY PROVIDING THAT A CERTIFIED STATEMENT SPECIFYING THE INSURANCE PERIODS COMPLETED PREVIOUSLY UNDER THE LEGISLATION OF OTHER MEMBER STATES MUST BE ISSUED BY THE INSTITUTION OR INSTITUTIONS OF THE MEMBER STATE TO WHOSE LEGISLATION THE WORKER WAS PREVIOUSLY SUBJECT AND MUST BE SUBMITTED TO THE COMPETENT INSTITUTION , THAT PROVISION IS MANIFESTLY BASED ON THE PRINCIPLE WHEREBY THE INSTITUTION OR INSTITUTIONS OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER IS OR WAS LAST EMPLOYED ARE ALONE COMPETENT TO AGGREGATE INSURANCE PERIODS .

13 THE ANSWER TO THE FIRST THREE QUESTIONS SUBMITTED BY THE SOCIAL SECURITY COMMISSIONER MUST THEREFORE BE THAT ONLY THE COMPETENT INSTITUTION OR INSTITUTIONS OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER IS OR WAS LAST EMPLOYED ARE COMPETENT TO AGGREGATE THE INSURANCE PERIODS IN ACCORDANCE WITH ARTICLE 18 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 AND THAT ONLY THE LEGISLATION OF THAT MEMBER STATE IS APPLICABLE TO SICKNESS BENEFIT BY VIRTUE OF ARTICLE 13 ( 2 ) ( A ) OF THAT REGULATION .

INVALIDITY BENEFIT
14 THE FOURTH QUESTION SEEKS ESSENTIALLY TO DETERMINE WHETHER A MEMBER STATE MAY , PURSUANT TO ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , VALIDLY REDUCE INVALIDITY BENEFIT DUE UNDER ITS LEGISLATION FOLLOWING A PERIOD OF INCAPACITY FOR WORK DURING WHICH THE WORKER WAS GRANTED BENEFIT FOR THAT SAME INCAPACITY , INCLUDING BENEFIT FROM ANOTHER MEMBER STATE , WHICH IS TO BE TAKEN INTO CONSIDERATION IN ACCORDANCE WITH ARTICLE 40 ( 3 ) OF THAT REGULATION .

15 WHEN ASKING THAT QUESTION , THE SOCIAL SECURITY COMMISSIONER HAS IN MIND THE JUDGMENT OF THE COURT OF 21 OCTOBER 1975 IN CASE 24/75 , PETRONI ( 1975 ) ECR 1149 , ACCORDING TO WHICH ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON THE OVERLAPPING OF TWO BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE .

16 AS IS APPARENT FROM THE DECISION MAKING THE REFERENCE , EVEN IF IT IS ASSUMED THAT THE MEDICAL CONDITIONS PRESCRIBED BY UNITED KINGDOM LEGISLATION ARE SATISFIED , NO ENTITLEMENT TO INVALIDITY BENEFIT WOULD ARISE IN THIS CASE BY VIRTUE OF UNITED KINGDOM LEGISLATION ALONE SINCE MR COPPOLA DID NOT SATISFY THE CONDITION LAID DOWN BY THAT LEGISLATION FOR ENTITLEMENT TO INVALIDITY BENEFIT , NAMELY RECEIPT OF UNITED KINGDOM SICKNESS BENEFIT FOR A PERIOD OF 168 DAYS . HOWEVER , AS REGARDS LEGISLATION WHICH MAKES THE AWARD OF INVALIDITY BENEFIT SUBJECT TO THE CONDITION THAT THE PERSON CONCERNED MUST HAVE RECEIVED SICKNESS BENEFIT FOR A SPECIFIED PERIOD , ARTICLE 40 ( 3 ) OF REGULATION NO 1408/71 PROVIDES THAT WHERE A WORKER WHO WAS SUBJECT TO LEGISLATION OF THAT KIND SUFFERS INCAPACITY FOR WORK FOLLOWED BY INVALIDITY WHILE SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE , ACCOUNT IS TO BE TAKEN OF ANY PERIOD DURING WHICH , UNDER THE LEGISLATION OF THAT OTHER MEMBER STATE , HE RECEIVED IN RESPECT OF SUCH INCAPACITY FOR WORK OR IN RESPECT OF INVALIDITY FOLLOWING SUCH INCAPACITY CASH SICKNESS BENEFITS OR CONTINUED TO RECEIVE HIS WAGE OR SALARY OR INVALIDITY BENEFIT . IT IS THEREFORE ONLY BY VIRTUE OF THAT PROVISION THAT MR COPPOLA MIGHT BE ENTITLED TO UNITED KINGDOM INVALIDITY BENEFIT .

17 THE ENTITLEMENT TO INVALIDITY BENEFIT WHICH MAY RESULT FROM THE APPLICATION OF ARTICLE 40 ( 3 ) OF REGULATION NO 1408/71 IS NOT A RIGHT CONFERRED ON A WORKER BY VIRTUE OF THE NATIONAL LEGISLATION OF A MEMBER STATE ALONE . IT IS A RIGHT CONFERRED ON HIM , IN ACCORDANCE WITH COMMUNITY LAW , BY REASON OF THE TAKING INTO ACCOUNT OF PERIODS COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE . IT FOLLOWS THAT ANY REDUCTION , IN SUCH A CASE , OF THE BENEFITS PROVIDED BY ANY OF THE COMPETENT INSTITUTIONS PURSUANT TO ARTICLE 46 ( 3 ) IS NOT CONTRARY TO ARTICLE 48 TO 51 OF THE EEC TREATY .

18 IT IS THEREFORE NECESSARY TO REPLY THAT INVALIDITY BENEFIT DUE UNDER THE LEGISLATION OF A MEMBER STATE FOLLOWING A PERIOD OF INCAPACITY FOR WORK DURING WHICH THE WORKER RECEIVED BENEFIT IN RESPECT OF THAT INCAPACITY , INCLUDING BENEFIT FROM ANOTHER MEMBER STATE , WHICH IS TO BE TAKEN INTO ACCOUNT PURSUANT TO ARTICLE 40 ( 3 ) OF REGULATION NO 1408/71 MAY , WHERE APPROPRIATE , BE VALIDLY REDUCED PURSUANT TO ARTICLE 46 ( 3 ) OF THAT REGULATION .

COSTS
19 THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS 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 .

ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
IN REPLY TO THE QUESTIONS REFERRED TO IT BY THE SOCIAL SECURITY COMMISSIONER , HEREBY RULES :
1 . ONLY THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER IS OR WAS LAST EMPLOYED IS APPLICABLE WITH REGARD TO SICKNESS BENEFIT BY VIRTUE OF ARTICLE 13 ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 . THE COMPETENT INSTITUTION OR INSTITUTIONS OF THE MEMBER STATES ARE COMPETENT TO AGGREGATE THE INSURANCE PERIODS PURSUANT TO ARTICLE 18 OF THAT REGULATION .

2.INVALIDITY BENEFIT DUE UNDER THE LEGISLATION OF A MEMBER STATE FOLLOWING A PERIOD OF INCAPACITY FOR WORK DURING WHICH THE WORKER RECEIVED BENEFITS IN RESPECT OF THAT INCAPACITY , INCLUDING BENEFIT FROM ANOTHER MEMBER STATE , WHICH IS TO BE TAKEN INTO ACCOUNT PURSUANT TO ARTICLE 40 ( 3 ) OF REGULATION NO 1408/71 MAY , WHERE APPROPRIATE , BE VALIDLY REDUCED PURSUANT TO ARTICLE 46 ( 3 ) OF THAT REGULATION .