61974J0035

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY - PENSION - ARTICLES 27 AND 28 OF REGULATION NO 3 - APPLICATION BY ANALOGY - BENEFITS - APPORTIONMENT - CONDITION - AGGREGATION OF PERIODS OF INSURANCE COMPLETED UNDER DIFFERENT LEGISLATIONS

( COUNCIL REGULATION NO 3, ARTICLE 26 ( 2 ), 27, 28 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY, OLD AGE AND DEATH - BENEFITS - RECOVERABLE ADVANCE - LIMITATION - APPLICATION OF NATIONAL LAW

( COUNCIL REGULATION NO 4, ARTICLE 34 ( 3 ))

1 . APPLICATION BY ANALOGY OF ARTICLES 27 AND 28 OF REGULATION NO 3 TO THE CASES REFERRED TO UNDER ARTICLE 26 ( 1 ) MEANS THAT APPORTIONMENT OF BENEFITS MAY NOT BE MADE UNLESS IT HAS BEEN NECESSARY, IN ORDER TO GIVE RISE TO ENTITLEMENT, TO AGGREGATE BEFOREHAND THE PERIODS COMPLETED UNDER DIFFERENT LEGISLATIONS .

2 . AS ARTICLE 34 ( 3 ) IS INTEGRATED WITH THE PROVISIONS OF NATIONAL SOCIAL SECURITY LAWS AND SUPPLEMENTS THEM, ANY LIMITATION OR TIME LIMIT WHICH MAY APPLY MUST, IN THE PRESENT STATE OF THE LAW, BE DICTATED BY NATIONAL SOCIAL SECURITY LAW .

IN CASE 35/74

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE LABOUR COURT ( TRIBUNAL DU TRAVAIL ) OF MONS FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALLIANCE NATIONALE DES MUTUALITES CHRETIENNES

AND

INSTITUT NATIONAL D'ASSURANCE MALADIE INVALIDITE

V

THOMAS RZEPA

ON A QUESTION OF LIMITATION UNDER THE LAW APPLICABLE TO THE SOCIAL SECURITY OF EMPLOYED PERSONS MOVING WITHIN THE COMMUNITY,

1 BY JUDGMENT OF 2 MAY 1974, REGISTERED AT THE COURT OF JUSTICE ON 24 MAY 1974, THE LABOUR COURT OF MONS, UNDER ARTICLE 177 OF THE TREATY, REFERRED QUESTIONS CONCERNING THE LIMITATION OF AN ACTION FOR REPAYMENT OF ADVANCES MADE UNDER ARTICLE 34 ( 3 ) OF REGULATION NO 4 OF THE COUNCIL ( OFFICIAL JOURNAL 1958, P . 597 ).

2 THE DOCUMENTS IN THE CASE SHOW THAT THE DEFENDANT IN THE MAIN ACTION, A REFUGEE WITHIN THE MEANING OF ARTICLES 1 ( J ) AND 4 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL ( OFFICIAL JOURNAL 1958, P . 561 ), WAS IN RECEIPT OF INVALIDITY BENEFIT FROM 9 JANUARY 1953, UNDER BELGIAN LEGISLATION ON INVALIDITY BENEFITS, TO WHICH ANNEX F OF THE REGULATION REFERS AS BEING OF TYPE A, WHICH MEANS THAT BENEFITS DO NOT DEPEND ON THE LENGTH OF COMPLETED INSURANCE PERIODS .

3 SUBSEQUENTLY, HOWEVER, FROM 1 JANUARY 1959, HE WAS IN RECEIPT OF AN INVALIDITY PENSION IN GERMANY UNDER GERMAN LEGISLATION REFERRED TO AS BEING OF TYPE B, WHICH MEANS THAT, IN PRINCIPLE, BENEFITS ARE CALCULATED AFTER TAKING THE LENGTH OF COMPLETED PERIODS INTO ACCOUNT .

4 IT WAS ESSENTIAL TO APPLY ARTICLE 27 OF REGULATION NO 3 BEFORE AN ENTITLEMENT TO BENEFIT COULD ARISE UNDER GERMAN LEGISLATION .

5 THE BELGIAN INSURER, MAINTAINING THAT THE PROPORTION OF THE BELGIAN BENEFIT CORRESPONDING TO THE BENEFITS GRANTED BY THE GERMAN INSURER FOR ONE AND THE SAME INCAPACITY WAS NO MORE THAN A RECOVERABLE ADVANCE WITHIN THE MEANING OF ARTICLE 34 ( 3 ) OF REGULATION NO 4, BROUGHT AN ACTION FOR REPAYMENT ( BUT ONLY IN 1972 ) OF PART OF THE SUMS PAID BETWEEN 1 JANUARY 1959 AND 31 OCTOBER 1959 .

6 THE QUESTIONS TO BE ANSWERED ARE : WHAT IS THE PERIOD OF LIMITATION TO BE APPLIED TO THE ACTION UNDER THE LAW OF THE COMMUNITY; WHEN DOES THIS PERIOD BEGIN TO RUN; AND IN WHAT CIRCUMSTANCES MAY THE PERIOD BE INTERRUPTED?

7 IN ASKING THESE QUESTIONS THE NATIONAL COURT CAN BE REFERRING ONLY TO AN ACTION FOR REPAYMENT OF SUMS PAID PURSUANT TO ARTICLE 34 ( 3 ) OF REGULATION NO 4 OF THE COUNCIL AND NOT TO THOSE PAID UNDER THE PROVISIONS OF NATIONAL LAW .

8 ARTICLE 34 ( 3 ) PROVIDES AS FOLLOWS : 'BEFORE DETERMINING THE BENEFIT IN ACCORDANCE WITH ARTICLES 26 TO 28 OF THE REGULATION, AND IN CASES WHICH MIGHT LEAD TO DELAY, THE SCRUTINEER INSTITUTION SHALL MAKE A RECOVERABLE ADVANCE, CALCULATED ON THE BASIS OF THE AMOUNT OF BENEFIT WHICH WOULD BE PAYABLE UNDER THE NATIONAL LEGISLATION APPLIED BY THE SAID INSTITUTION, TAKING ACCOUNT OF THE PROVISIONS OF THE REGULATION '.

9 APPLICATION BY ANALOGY OF ARTICLES 27 AND 28 OF REGULATION NO 3 TO THE CASES REFERRED TO UNDER ARTICLE 26 ( 1 ) MEANS THAT APPORTIONMENT OF BENEFITS MAY NOT BE MADE UNLESS IT HAS BEEN NECESSARY, IN ORDER TO GIVE RISE TO ENTITLEMENT, TO AGGREGATE BEFOREHAND THE PERIODS COMPLETED UNDER DIFFERENT LEGISLATIONS .

10 IT FOLLOWS THAT ARTICLE 34 ( 3 ) IS APPLICABLE ONLY IN CASES WHERE PRIOR AGGREGATION IS AN ESSENTIAL CONDITION OF ENTITLEMENT .

11 THIS POSITION CANNOT ARISE IN A CASE CONCERNING AN INVALIDITY BENEFIT IN A MEMBER STATE WITH A TYPE A INVALIDITY INSURANCE SCHEME, WHICH DOES NOT TAKE THE LENGTH OF COMPLETED PERIODS INTO ACCOUNT .

12 IN ANY CASE, AS THE SYSTEM EMBODIED IN REGULATIONS NOS 3 AND 4 RESTS ON MERE COORDINATION OF NATIONAL LEGISLATION IN THE FIELD OF SOCIAL SECURITY AND DOES NOT AFFECT THE RULES ON LIMITATION LAID DOWN BY SUCH LEGISLATIONS, IT WAS NOT ABSOLUTELY NECESSARY THAT THESE REGULATIONS SHOULD LAY DOWN RULES EITHER ON LIMITATION OR ON TIME LIMITS .

13 AS ARTICLE 34 ( 3 ) IS INTEGRATED WITH THE PROVISIONS OF NATIONAL SOCIAL SECURITY LAWS AND SUPPLEMENTS THEM, PAYMENTS MADE ON THIS DUAL BASIS DO NOT ARISE ONLY BY VIRTUE OF COMMUNITY LAW, FROM WHICH IT FOLLOWS THAT ANY LIMITATION OR TIME LIMIT WHICH MAY APPLY MUST, IN THE PRESENT STATE OF THE LAW, BE DICTATED BY NATIONAL SOCIAL SECURITY LAW .

14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

15 AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE LABOUR COURT OF MONS, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE LABOUR COURT OF MONS BY ORDER OF THAT COURT DATED 2 MAY 1974, HEREBY RULES :

AS ARTICLE 34 ( 3 ) OF REGULATION NO 4 IS INTEGRATED WITH THE PROVISIONS OF NATIONAL SOCIAL SECURITY LAWS AND SUPPLEMENTS THEM, PAYMENTS MADE ON THIS DUAL BASIS DO NOT ARISE ONLY BY VIRTUE OF COMMUNITY LAW, FROM WHICH IT FOLLOWS THAT ANY LIMITATION OR TIME LIMIT WHICH MAY APPLY MUST, IN THE PRESENT STATE OF THE LAW, BE DICTATED BY NATIONAL SOCIAL SECURITY LAW .