61978J0173

SOCIAL SECURITY FOR MIGRANT WORKERS - ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES - ASSESSMENT OF DEGREE OF INCAPACITY - TAKING INTO CONSIDERATION OF ACCIDENTS OR DISEASES OCCURRING SUBSEQUENTLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE - REQUIREMENT - NONE

( REGULATION NO 3 OF THE COUNCIL , ART . 30 ( 1 ); REGULATION NO 1408/71 OF THE COUNCIL , ART . 61 ( 5 ))

ARTICLE 30 ( 1 ) OF REGULATION NO 3 AND ARTICLE 61 ( 5 ) OF REGULATION NO 1408/71 MERELY REQUIRE THE COMPETENT INSTITUTION OF A MEMBER STATE TO TAKE INTO CONSIDERATION ACCIDENTS OR DISEASES WHICH HAVE OCCURRED PREVIOUSLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , AS IF THEY HAD OCCURRED UNDER THE LEGISLATION OF THE FIRST MEMBER STATE BUT DO NOT REQUIRE IT TO TAKE INTO CONSIDERATION ALSO ACCIDENTS OR DISEASES WHICH HAVE OCCURRED SUBSEQUENTLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE .

IN JOINED CASES 173/78 AND 174/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

ALBERTO VILLANO , LUMEZZANE PIEVE ( BRESCIA )

AND

NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT ( NORTH-WEST IRON AND STEEL EMPLOYERS ASSOCIATION FOR SOCIAL INSURANCE ), HANOVER ( CASE 173/78 )

AND

PASQUALE BARION , MATTERELLO DI TRENTO

AND

TIEFBAU-BERUFSGENOSSENSCHAFT ( MINE ENGINEERING EMPLOYERS ASSOCIATION FOR SOCIAL INSURANCE ), MUNICH ( CASE 174/78 ),

ON THE INTERPRETATION OF ARTICLE 30 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ) AND ARTICLE 61 ( 5 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL 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 ).

1BY SEPARATE ORDERS OF 28 JUNE 1978 , WHICH WERE RECEIVED AT THE COURT REGISTRY ON 14 AUGUST 1978 , THE BUNDESSOZIALGERICHT SUBMITTED , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , THE FOLLOWING PRELIMINARY QUESTION TO THE COURT OF JUSTICE :

' ' DOES THE DEFENDANT GERMAN SOCIAL INSURANCE INSTITUTION ACCORDING TO ARTICLE 30 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND ACCORDING TO ARTICLE 61 ( 5 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY HAVE TO TAKE INTO CONSIDERATION AN ACCIDENT AT WORK SUSTAINED BY THE PLAINTIFF WHICH OCCURRED SUBSEQUENTLY IN ITALY AS IF IT HAD OCCURRED UNDER GERMAN LEGISLATION , IF THE GRANTING OF A PENSION TO THE PLAINTIFF ARISING OUT OF A PREVIOUS ACCIDENT AT WORK WHICH OCCURRED UNDER GERMAN LEGISLATION DEPENDS UPON THE PERCENTAGE OF THE REDUCTION IN CAPACITY FOR WORK CAUSED BY BOTH ACCIDENTS AT WORK AMOUNTING AT LEAST TO THE FIGURE 20 ( FIRST SENTENCE OF ARTICLE 581 ( 3 ) OF THE REICHSVERSICHERUNGSORDNUNG ( NATIONAL SOCIAL INSURANCE REGULATIONS))?

' '

2THIS QUESTION WAS RAISED IN THE CONTEXT OF TWO ACTIONS BETWEEN , FIRST , THE NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT ( CASE 173/78 ) AND , SECONDLY , THE TIEFBAU-BERUFSGENOSSENSCHAFT , OF MUNICH ( CASE 174/78 ) AND WORKERS OF ITALIAN NATIONALITY , THE PLAINTIFFS IN THE MAIN ACTIONS , WHO BOTH SUFFERED ACCIDENTS AT WORK ON THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY . AFTER SUFFERING FURTHER ACCIDENTS AT WORK , THIS TIME IN ITALY , BOTH WORKERS REQUESTED THE INSURANCE INSTITUTIONS , THE DEFENDANTS IN THE MAIN ACTIONS , TO TAKE THE SAID ACCIDENTS INTO CONSIDERATION FOR THE PURPOSES OF ESTABLISHING WHETHER THE CONDITIONS PRESCRIBED BY GERMAN LEGISLATION FOR THE AWARD OF A PENSION IN RESPECT OF ACCIDENTS HAVE BEEN FULFILLED .

3ARTICLE 30 ( 1 ) OF REGULATION NO 3 AND ARTICLE 61 ( 5 ) OF REGULATION NO 1408/71 BOTH PROVIDE THAT WHERE THE LEGISLATION OF A MEMBER STATE EXPRESSLY OR BY IMPLICATION PROVIDES THAT ACCIDENTS AT WORK OR OCCUPATIONAL DISEASES WHICH HAVE OCCURRED OR WHICH HAVE BEEN CONFIRMED PREVIOUSLY SHALL BE TAKEN INTO CONSIDERATION IN ORDER TO ASSESS THE DEGREE OF INCAPACITY , THE COMPETENT INSTITUTION OF THAT STATE SHALL ALSO TAKE INTO CONSIDERATION ACCIDENTS AT WORK OR OCCUPATIONAL DISEASES WHICH HAVE OCCURRED OR HAVE BEEN CONFIRMED PREVIOUSLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , AS IF THEY HAD OCCURRED OR HAD BEEN CONFIRMED UNDER THE LEGISLATION WHICH IT ADMINISTERS . ACCORDINGLY , THOSE TWO PROVISIONS MERELY REQUIRE THE COMPETENT INSTITUTION TO TAKE INTO CONSIDERATION ACCIDENTS OR DISEASES WHICH HAVE OCCURRED PREVIOUSLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE AND NOT THOSE WHICH HAVE OCCURRED SUBSEQUENTLY .

4THE PLAINTIFFS IN THE MAIN ACTIONS NEVERTHELESS MAINTAIN THAT IT IS NECESSARY TO EXTEND BY ANALOGY THE RULE LAID DOWN IN THE SAID PROVISIONS TO ACCIDENTS OR DISEASES OCCURRING SUBSEQUENTLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , HAVING REGARD TO THE OBJECTIVES OF ARTICLES 48 TO 51 OF THE EEC TREATY AND TO THE GENERAL PRINCIPLES ON WHICH REGULATIONS NOS 3 AND 1408/71 ARE BASED . ACCORDING TO THE PLAINTIFFS IN THE MAIN ACTIONS THE COMPETENT INSTITUTIONS ARE OBLIGED TO TAKE INTO CONSIDERATION NOT ONLY ACCIDENTS OR DISEASES WHICH HAVE OCCURRED PREVIOUSLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , AS IS LAID DOWN IN THE PROVISIONS IN QUESTION , BUT ALSO THOSE WHICH OCCUR SUBSEQUENTLY .

5IT IS HOWEVER IMPOSSIBLE TO ACCEPT THAT ARGUMENT .

6THE PROVISIONS IN QUESTION , WHEN THEY REQUIRE THE INSTITUTION WHICH IS COMPETENT IN THE MOST RECENT INSTANCE TO TAKE INTO CONSIDERATION ACCIDENTS OR DISEASES WHICH HAVE OCCURRED PREVIOUSLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE AS IF THEY HAD OCCURRED OR BEEN CONFIRMED UNDER THE LEGISLATION WHICH THE SAID INSTITUTION ADMINISTERS , ARE CONCERNED TO ENSURE THAT AN EMPLOYED PERSON WHO HAS SUFFERED ONE OR MORE ACCIDENTS OR DISEASES IN ANOTHER MEMBER STATE OBTAINS TREATMENT EQUAL TO THAT PROVIDED FOR A WORKER WHO IS IN THE SAME POSITION AND WHO HAS NOT LEFT THE MEMBER STATE IN QUESTION . THOSE PROVISIONS THUS GIVE SUFFICIENT EFFECT TO THE BASIC PRINCIPLES SET OUT IN ARTICLES 48 TO 51 OF THE EEC TREATY .

7THE ANSWER TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT ARTICLE 30 ( 1 ) OF REGULATION NO 3 AND ARTICLE 61 ( 5 ) OF REGULATION NO 1408/71 DO NOT REQUIRE THE COMPETENT INSTITUTION OF A MEMBER STATE TO TAKE INTO CONSIDERATION ACCIDENTS OR DISEASES WHICH HAVE OCCURRED SUBSEQUENTLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , AS IF THEY HAD OCCURRED UNDER THE LEGISLATION OF THE FIRST MEMBER STATE .

COSTS

8THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

9AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT , BY SEPARATE ORDERS OF 28 JUNE 1978 , HEREBY RULES :

ARTICLE 30 ( 1 ) OF REGULATION NO 3 AND ARTICLE 61 ( 5 ) OF REGULATION NO 1408/71 DO NOT REQUIRE THE COMPETENT INSTITUTION OF A MEMBER STATE TO TAKE INTO CONSIDERATION ACCIDENTS OR DISEASES WHICH HAVE OCCURRED SUBSEQUENTLY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , AS IF THEY HAD OCCURRED UNDER THE LEGISLATION OF THE FIRST MEMBER STATE .