61978J0268

SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES - CASH BENEFITS - CALCULATION - AVERAGE WAGE - DETERMINATION

( REGULATION NO 3 OF THE COUNCIL , ARTS . 18 ( 1 ) AND 13 ( 2 ))

ARTICLE 18 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL CANNOT BE INTERPRETED AS MERELY DETERMINING THE LEGISLATION APPLICABLE FOR FIXING THE REFERENCE PERIOD FOR THE AVERAGE WAGE WITHOUT AFFECTING IN ANY WAY THE DETERMINATION OF THE REMUNERATION TO BE TAKEN INTO CONSIDERATION IN CALCULATING THE PENSION . IT IS CLEAR FROM BOTH THE WORDING AND THE OBJECTIVES OF THAT PROVISION THAT IT IS INTENDED TO ESTABLISH , WHERE , UNDER THE LEGISLATION OF ONE MEMBER STATE , THE BASIC WAGE EMPLOYED IN CALCULATING CASH BENEFITS IS THE AVERAGE WAGE OVER A GIVEN PERIOD , THE REMUNERATION OF WHICH THE COMPETENT INSTITUTION MUST TAKE ACCOUNT IN ORDER TO DETERMINE THAT WAGE . IT PROVIDES FOR THAT PURPOSE THAT THE REMUNERATION TO BE TAKEN INTO CONSIDERATION IS THE WAGE ' ' OBTAINED ' ' DURING THE PERIODS OF WORK COMPLETED UNDER THE LEGISLATION OF SUCH STATE .

IF , HAVING REGARD TO THE PROVISIONS OF ARTICLES 12 TO 15 OF THE REGULATION , THE LEGISLATION APPLICABLE IS THAT OF THE MEMBER STATE ON WHOSE TERRITORY THE WORKER WAS EMPLOYED AT THE TIME WHEN THE ACCIDENT OCCURRED , THE WAGE ' ' OBTAINED ' ' WITHIN THE MEANING OF ARTICLE 18 ( 1 ) CONSTITUTES ONLY THE WAGES PAID IN THE REFERENCE PERIOD , ESTABLISHED IN ACCORDANCE WITH THAT LEGISLATION , ON THE TERRITORY OF THAT STATE .

CONSEQUENTLY , IN PURSUANCE OF ARTICLES 18 ( 1 ) AND 30 ( 2 ) OF THE REGULATION , WHERE , UNDER THE LEGISLATION OF ONE OF THE MEMBER STATES , THE BASIC WAGE TO BE RECKONED FOR THE CALCULATION OF CASH BENEFITS DUE TO A PERSON WHO HAS SUSTAINED AN ACCIDENT AT WORK AND WHO HAS WORKED SUCCESSIVELY IN ONE OR MORE MEMBER STATES IS THE AVERAGE WAGE FOR A GIVEN PERIOD , SUCH AVERAGE WAGE IS TO BE DETERMINED SOLELY BY REFERENCE TO THE WAGES PAID IN THE STATE IN WHICH THE PERSON CONCERNED WAS WORKING AT THE TIME OF THE ACCIDENT , IN ACCORDANCE WITH THE RULES AND THE METHOD OF CALCULATION PREVAILING IN THAT STATE .

IN CASE 268/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION OF FRANCE ( SOCIAL CHAMBER ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

JEAN-LOUIS PENNARTZ , CANNES-LA-BOCCA ,

AND

CAISSE PRIMAIRE D ' ASSURANCE MALADIE DES ALPES-MARITIMES ( CENTRAL SICKNESS INSURANCE FUND FOR THE ALPES-MARITIMES ), NICE ,

ON THE INTERPRETATION OF ARTICLE 18 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ,

1 BY A JUDGMENT OF 22 NOVEMBER 1978 , WHICH WAS RECEIVED AT THE COURT OF JUSTICE ON 27 DECEMBER 1978 , THE COUR DE CASSATION OF FRANCE SUBMITTED TO THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 OF THE EEC TREATY A PRELIMINARY QUESTION ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL , 1958 , P . 561 ).

2 THIS QUESTION WAS RAISED IN THE COURSE OF AN ACTION BETWEEN MR PENNARTZ , A WORKER OF FRENCH NATIONALITY RESIDING IN FRANCE , WHO , ON 25 APRIL 1969 , SUSTAINED AN ACCIDENT AT WORK THERE , AND THE CAISSE PRIMAIRE D ' ASSURANCE MALADIE DES ALPES-MARITIMES ( CENTRAL SICKNESS FUND FOR THE ALPES-MARITIMES ) ( HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ) CONCERNING THE AWARD OF AN INVALIDITY PENSION IN CONNEXION WITH THAT ACCIDENT .

3 THE JUDGMENT MAKING THE REFERENCE INDICATES THAT THE FUND GRANTED MR PENNARTZ FROM 3 MAY 1970 A PENSION FOR ACCIDENT AT WORK AT A RATE OF PERMANENT PARTIAL INVALIDITY OF 4% , WHICH WAS SUBSEQUENTLY INCREASED TO 6% . THE FUND CALCULATED THE AMOUNT OF THE PENSION FROM AN AVERAGE WAGE BASED SOLELY ON THE WAGE ACTUALLY RECEIVED BY HIM IN HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT . IN THIS CONNEXION THE FUND PROCEEDED ON THE BASIS OF THE PROVISIONS OF ARTICLE L 451 OF THE FRENCH SOCIAL SECURITY CODE AND ON ARTICLES 103 AND 108 OF DECREE NO 46-2959 OF 31 DECEMBER 1946 .

4 MR PENNARTZ CONTESTED THIS METHOD OF CALCULATION , CLAIMING THAT THE WAGE TAKEN AS THE BASIS FOR THE CALCULATION OF THE PENSION MUST BE DETERMINED NOT ONLY IN TERMS OF THE WAGE RECEIVED IN HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT BUT ALSO OF THE HIGHER WAGE WHICH HE HAD IN FACT RECEIVED PREVIOUSLY IN BELGIUM . THE FUND TOOK THE VIEW INTER ALIA THAT ITS METHOD OF CALCULATION WAS IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 18 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL AND MR PENNARTZ THEN MAINTAINED THAT IT HAD MISAPPLIED THAT PROVISION WHICH , IN HIS VIEW , MERELY DETERMINED THE LAW APPLICABLE IN FIXING THE REFERENCE PERIOD AND IN NO WAY AFFECTED THE DETERMINATION OF THE WAGE TO BE TAKEN INTO ACCOUNT IN CALCULATING THE PENSION .

5 THE FRENCH COUR DE CASSATION , THE COURT OF LAST INSTANCE TO WHICH THE DISPUTE WAS REFERRED , CONSIDERED THAT SETTLEMENT THEREOF CONCERNED THE APPLICATION OF RELEVANT RULES OF COMMUNITY LAW AND SUBMITTED THE FOLLOWING PRELIMINARY QUESTION TO THE COURT OF JUSTICE :

' ' PURSUANT TO THE COMMUNITY PROVISIONS THEN APPLICABLE , MUST THE BASIC WAGE TO BE USED IN CALCULATING THE BENEFITS PAYABLE TO A PERSON WHO HAS SUFFERED AN ACCIDENT AT WORK AND WHO HAS WORKED SUCCESSIVELY IN MORE THAN ONE MEMBER STATE DURING THE REFERENCE PERIOD FIXED IN ACCORDANCE WITH THE LEGISLATION OF THE STATE WHERE THE ACCIDENT OCCURRED BE RECKONED ON THE BASIS OF ALL REMUNERATION RECEIVED DURING THAT PERIOD IN ANY OF THOSE STATES OR SOLELY ON THE BASIS OF THE REMUNERATION RECEIVED IN THE STATE IN WHICH THE CLAIMANT WAS WORKING AT THE TIME OF THE ACCIDENT , IN ACCORDANCE WITH THE PROVISIONS AND THE METHOD OF CALCULATION IN FORCE IN THAT STATE?

' '

6 IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THE QUESTION SUBMITTED CONCERNS THE INTERPRETATION OF THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL CONCERNING ACCIDENTS AT WORK , WHICH WERE IN FORCE AT THE TIME WHEN THE PENSION IN DISPUTE WAS AWARDED .

7 CHAPTER 4 OF HEAD III OF REGULATION NO 3 , WHICH DEALS WITH ' ' INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES ' ' , DOES NOT CONTAIN ANY SPECIFIC PROVISIONS CONCERNING THE CALCULATION OF CASH BENEFITS , SUCH AS PENSIONS . NEVERTHELESS ARTICLE 30 ( 2 ) OF THAT CHAPTER REFERS AS REGARDS SUCH BENEFITS TO THE ' ' PROVISIONS OF ARTICLE 18 OF THIS REGULATION ' ' , THE FIRST PARAGRAPH OF WHICH IS WORDED AS FOLLOWS :

' ' WHERE , UNDER THE LEGISLATION OF ONE MEMBER STATE , THE PAYMENT OF CASH BENEFITS IS RELATED TO THE AVERAGE WAGE OVER A GIVEN PERIOD , THE AVERAGE WAGE TO BE RECKONED FOR THE CALCULATION OF SUCH BENEFITS SHALL BE BASED ON ACTUAL WAGES OBTAINED DURING THE PERIOD COMPLETED UNDER THE LEGISLATION OF SUCH MEMBER STATE . ' '

8 ARTICLE 18 ( 1 ) SHOULD NOT BE INTERPRETED AS MERELY DETERMINING THE LEGISLATION APPLICABLE FOR FIXING THE REFERENCE PERIOD FOR THE AVERAGE WAGE WITHOUT AFFECTING IN ANY WAY THE DETERMINATION OF THE REMUNERATION TO BE TAKEN INTO CONSIDERATION IN CALCULATING THE PENSION . APART FROM THE FACT THAT SUCH AN INTERPRETATION IS CONTRARY TO THE VERY WORDING OF THAT PROVISION , IT WOULD DEPRIVE IT OF ALL PRACTICAL PURPOSE SINCE THE LEGISLATION APPLICABLE HAS ALREADY BEEN SETTLED BY ARTICLES 12 TO 15 IN HEAD II OF THE REGULATION IN QUESTION .

9 ON THE OTHER HAND IT IS CLEAR FROM BOTH THE WORDING AND THE OBJECTIVES OF ARTICLE 18 ( 1 ) THAT THAT PROVISION IS INTENDED TO ESTABLISH , WHERE , UNDER THE LEGISLATION OF ONE MEMBER STATE , THE BASIC WAGE EMPLOYED IN CALCULATING CASH BENEFITS IS THE AVERAGE WAGE OVER A GIVEN PERIOD , THE REMUNERATION OF WHICH THE COMPETENT INSTITUTION MUST TAKE ACCOUNT IN ORDER TO DETERMINE THAT WAGE AND IT PROVIDES FOR THAT PURPOSE THAT THE REMUNERATION TO BE TAKEN INTO CONSIDERATION IS THE WAGE ' ' OBTAINED ' ' DURING THE PERIODS OF WORK COMPLETED UNDER THE LEGISLATION OF SUCH STATE .

10 IF , HAVING REGARD TO THE PROVISIONS OF ARTICLES 12 TO 15 OF THE REGULATION , THE LEGISLATION APPLICABLE IS THAT OF THE MEMBER STATE ON WHOSE TERRITORY THE WORKER WAS EMPLOYED AT THE TIME WHEN THE ACCIDENT OCCURRED , THE WAGE ' ' OBTAINED ' ' WITHIN THE MEANING OF ARTICLE 18 ( 1 ) CONSTITUTES ONLY THE WAGES PAID IN THE REFERENCE PERIOD , ESTABLISHED IN ACCORDANCE WITH THAT LEGISLATION , ON THE TERRITORY OF THAT STATE .

11 FOR THESE REASONS THE ANSWER TO BE GIVEN TO THE QUESTION SUBMITTED IS THAT IN PURSUANCE OF ARTICLES 18 ( 1 ) AND 30 ( 2 ) OF REGULATION NO 3 OF THE COUNCIL , WHERE , UNDER THE LEGISLATION OF ONE OF THE MEMBER STATES , THE BASIC WAGE TO BE RECKONED FOR THE CALCULATION OF CASH BENEFITS DUE TO A PERSON WHO HAS SUSTAINED AN ACCIDENT AT WORK AND WHO HAS WORKED SUCCESSIVELY IN ONE OR MORE MEMBER STATES IS THE AVERAGE WAGE FOR A GIVEN PERIOD , SUCH AVERAGE WAGE IS TO BE DETERMINED SOLELY BY REFERENCE TO THE WAGES PAID IN THE STATE IN WHICH THE PERSON CONCERNED WAS WORKING AT THE TIME OF THE ACCIDENT , IN ACCORDANCE WITH THE RULES AND THE METHOD OF CALCULATION PREVAILING IN THAT STATE .

COSTS

12 THE COSTS INCURRED BY THE DIRECTION REGIONALE DES AFFAIRES SANITAIRES ET SOCIALES PROVENCE-ALPES-COTE D ' AZUR AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE AND SINCE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , THESE PROCEEDINGS ARE IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR DE CASSATION OF FRANCE BY A JUDGMENT OF 22 NOVEMBER 1978 , HEREBY RULES :

IN PURSUANCE OF ARTICLES 18 ( 1 ) AND 30 ( 2 ) OF REGULATION NO 3 OF THE COUNCIL , WHERE , UNDER THE LEGISLATION OF ONE OF THE MEMBER STATES , THE BASIC WAGE TO BE RECKONED FOR THE CALCULATION OF CASH BENEFITS DUE TO A PERSON WHO HAS SUSTAINED AN ACCIDENT AT WORK AND WHO HAS WORKED SUCCESSIVELY IN ONE OR MORE MEMBER STATES IS THE AVERAGE WAGE FOR A GIVEN PERIOD , SUCH AVERAGE WAGE IS TO BE DETERMINED SOLELY BY REFERENCE TO THE WAGES PAID IN THE STATE IN WHICH THE PERSON CONCERNED WAS WORKING AT THE TIME OF THE ACCIDENT , IN ACCORDANCE WITH THE RULES AND THE METHOD OF CALCULATION PREVAILING IN THAT STATE .