61981J0093

SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - SCRUTINY OF CLAIMS - FORM E 26 - LEGAL SIGNIFICANCE - SUPPLEMENTARY INFORMATION WITHOUT A FORMAL AMENDMENT - PERMISSIBILITY

( EEC TREATY , ARTS 48 TO 51 ; REGULATION NO 4 OF THE COUNCIL OF THE EEC , ARTS 33 AND 34 )

THE LEGAL SIGNIFICANCE OF FORM E 26 MUST BE APPRAISED IN SUCH A WAY AS NOT TO JEOPARDIZE THE EFFECTIVENESS OF ARTICLES 48 TO 51 OF THE TREATY AND THE REGULATIONS CONCERNING THE RIGHTS OF MIGRANT WORKERS IN THE FIELD OF SOCIAL SECURITY .

THE SAID FORM IS NOT EXHAUSTIVE IN THE SENSE THAT IT DOES NOT PRECLUDE THE INFORMATION WHICH IT CONTAINS FROM BEING SUBSEQUENTLY EXPLAINED OR SUPPLEMENTED BY OFFICIAL DOCUMENTS EVEN IF THEY DO NOT CONSTITUTE AN AMENDMENT OF THE FORM PREVIOUSLY SENT .

IN CASE 93/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE THIRD CHAMBER OF THE BELGIAN COUR DE CASSATION ( COURT OF CASSATION ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE ( NATIONAL SICKNESS AND INVALIDITY INSURANCE INSTITUTION ), BRUSSELS ,

AND

PETER KNOELLER , OF OBRIGHEIM , FEDERAL REPUBLIC OF GERMANY , ON THE INTERPRETATION OF ARTICLE 34 OF REGULATION NO 4 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 DECEMBER 1958 ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ,

1 BY JUDGMENT OF 6 APRIL 1981 , WHICH WAS REGISTERED AT THE COURT ON 16 APRIL 1981 , THE THIRD CHAMBER OF THE BELGIAN COUR DE CASSATION ( COURT OF CASSATION ), REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 33 AND 34 OF REGULATION NO 4 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 DECEMBER 1958 ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL , 16 DECEMBER 1958 , P . 597 ). THE QUESTION SEEKS TO DETERMINE WHETHER THE INFORMATION ENTERED ON FORM E 26 , THE MODEL OF WHICH WAS DRAWN UP BY THE ADMINISTRATIVE COMMISSION SET UP BY REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY , MAY BE EXPLAINED SUBSEQUENTLY BY OTHER DOCUMENTS .

2 THE MAIN PROCEEDINGS CONCERN A COMPLAINT LODGED BY MR KNOELLER , A GERMAN NATIONAL WHO WORKED FROM 1927 TO 1937 IN BELGIUM AND FROM 15 MAY 1939 TO 18 AUGUST 1967 IN GERMANY , AGAINST THE DECISION OF THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE ( NATIONAL SICKNESS AND INVALIDITY INSURANCE INSTITUTION ), A BELGIAN SOCIAL SECURITY INSTITUTION ( HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' ), TO REFUSE TO GRANT HIM THE PROPORTIONAL BELGIAN INVALIDITY PENSION .

3 MR KNOELLER WAS INCAPABLE OF WORKING AS FROM 18 AUGUST 1967 BUT IT WAS ONLY WITH EFFECT FROM 1 DECEMBER 1967 THAT AN INVALIDITY PENSION WAS GRANTED TO HIM , UPON HIS APPLICATION , BY THE LANDESVERSICHERUNGSANSTALT RHEINPROVINZ ( REGIONAL INSURANCE INSTITUTION FOR THE RHINE PROVINCE ), HEREINAFTER REFERRED TO AS ' ' THE GERMAN INSTITUTION ' ' . IN THE MEANTIME , HE WAS , NEVERTHELESS , IN RECEIPT OF UNEMPLOYMENT BENEFITS IN THE FEDERAL REPUBLIC OF GERMANY . UNDER GERMAN LAW THAT INTERVAL IN NO WAY AFFECTS ENTITLEMENT TO THE INVALIDITY PENSION AND WAS THEREFORE NOT MENTIONED ON FORM E 26 WHICH WAS FORWARDED BY THE GERMAN INSTITUTION TO THE BELGIAN INSTITUTION SO AS TO ENABLE MR KNOELLER TO ACQUIRE A RIGHT TO A BELGIAN INVALIDITY PENSION PROPORTIONATE TO THE PERIOD OF EMPLOYMENT COMPLETED BY HIM IN BELGIUM . FOR THE REASON GIVEN ABOVE , THAT FORM MERELY MENTIONS PERIODS OF INSURANCE COMPLETED BY MR KNOELLER UNTIL 18 AUGUST 1967 , THAT IS TO SAY UNTIL THE DATE OF TERMINATION OF HIS EMPLOYMENT .

4 HAVING REGARD TO THE FACT THAT UNDER BELGIAN LAW A WORKER IS NOT ENTITLED TO AN INVALIDITY PENSION IF HE HAS NOT COMPLETED 120 DAYS OF WORK OR DAYS ASSIMILATED THERETO ( SUCH AS PERIODS OF REGISTERED UNEMPLOYMENT ) DURING THE SIX MONTHS PRECEDING THE CESSATION OF WORK , THE BELGIAN INSTITUTION IN THE PRESENT CASE CONSIDERED THAT , ON THE BASIS OF THE INFORMATION CONTAINED IN FORM E 26 , THAT CONDITION HAD NOT BEEN SATISFIED . IN FACT , THE BELGIAN INSTITUTION TOOK THE VIEW THAT THE INFORMATION GIVEN COULD NOT BE AMENDED OR SUPPLEMENTED BY THE LETTERS OF 5 AND 21 MARCH 1970 FROM THE GERMAN INSTITUTION IN WHICH IT WAS EXPLAINED THAT DURING THE PERIOD OF UNEMPLOYMENT MR KNOELLER WAS LEGALLY ' ' INSURED ' ' UNDER GERMAN LAW .

5 FOLLOWING MR KNOELLER ' S COMPLAINT , BOTH THE TRIBUNAL DU TRAVAIL ( LABOUR COURT ), VERVIERS , AND THE COUR D ' APPEL ( COURT OF APPEAL ), LIEGE , RULED THAT THE CLAIMANT WAS ENTITLED TO THE PROPORTIONAL BELGIAN INVALIDITY PENSION . THE BELGIAN INSTITUTION APPEALED ON A POINT OF LAW AGAINST THE JUDGMENT OF THE COUR D ' APPEL , LIEGE , AND THE BELGIAN COUR DE CASSATION BY JUDGMENT OF 6 APRIL 1981 , DECIDED TO STAY THE PROCEEDINGS AND TO REFER THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :

' ' TO DETERMINE THE PROPORTIONAL INVALIDITY PENSION DUE TO A WORKER FOR WORK DONE IN BELGIUM MUST REFERENCE BE MADE ONLY TO THE INFORMATION CONTAINED IN FORM E 26 PROVIDED FOR BY ARTICLE 34 OF REGULATION NO 4 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 DECEMBER 1958 ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS OR MAY THE SAID FORM E 26 BE SUPPLEMENTED OR EXPLAINED SUBSEQUENTLY BY OTHER INFORMATION?

' '

6 UNDER ARTICLE 43 OF REGULATION NO 3 AN ADMINISTRATIVE COMMISSION WAS SET UP WITH RESPONSIBILITY , INTER ALIA , FOR SETTLING ALL ADMINISTRATIVE QUESTIONS AND QUESTIONS OF INTERPRETATION ' ' ARISING UNDER THIS REGULATION AND SUBSEQUENT REGULATIONS ' ' . ARTICLE 2 ( 1 ) OF REGULATION NO 4 PROVIDES THAT THAT COMMISSION IS TO DRAW UP MODELS OF CERTIFICATES , CERTIFIED STATEMENTS , DECLARATIONS , APPLICATIONS AND OTHER DOCUMENTS REQUIRED FOR GIVING EFFECT TO REGULATIONS NOS 3 AND 4 . FORM E 26 , WHICH IS AT ISSUE IN THIS CASE , WAS DRAWN UP BY THE ADMINISTRATIVE COMMISSION IN APPLICATION OF THE PROVISIONS OF ARTICLES 33 AND 34 OF REGULATION NO 4 . ARTICLE 33 IS WORDED AS FOLLOWS :

' ' ( 1 ) FOR THE SCRUTINY OF THE CLAIMS FOR BENEFITS DUE , BY VIRTUE OF ARTICLES 26 TO 28 OF THE REGULATION ( DEFINED AS MEANING REGULATION NO 3 ), THE SCRUTINEER INSTITUTION SHALL USE A FORM SETTING OUT THE DETAIL AND TOTAL OF THE INSURED PERIODS AND ASSIMILATED PERIODS COMPLETED BY THE INSURED PERSON UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES TO WHICH HE WAS SUBJECT .

( 2)THIS FORM SHALL BE TRANSMITTED TO THE COMPETENT INSTITUTIONS OF ANOTHER MEMBER STATE IN PLACE OF TRANSMISSION OF THE SUPPORTING DOCUMENTS . ' '

ARTICLE 34 ( 1 ) OF REGULATION NO 4 IS WORDED AS FOLLOWS :

' ' THE SCRUTINEER INSTITUTION SHALL ENTER ON THE FORM REFERRED TO IN THE PRECEDING PARAGRAPH THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION TO WHICH IT IS SUBJECT , AND SHALL SEND A COPY OF THE SAID FORM TO THE COMPETENT INSTITUTIONS OF EACH OF THE OTHER MEMBER STATES UNDER WHOSE LEGISLATION THE INSURED PERSON HAS COMPLETED SUCH PERIODS . ' '

7 THE BELGIAN INSTITUTION IS OF THE OPINION THAT THOSE PROVISIONS ARE TO BE INTERPRETED AS MEANING THAT ONLY THOSE PERIODS ENTERED ON FORM E 26 MAY BE TAKEN INTO ACCOUNT . IT DOES NOT DENY THAT THE GERMAN INSTITUTION BY ITS LETTERS OF MARCH 1970 DID SUPPLY THE FURTHER INFORMATION MENTIONED ABOVE , BUT MAINTAINS THAT THOSE ' ' SUPPLEMENTARY EXPLANATIONS ' ' CANNOT ' ' TAKE THE PLACE OF FORM E 26 AS REGARDS PERIODS NOT MENTIONED IN THAT DOCUMENT ' ' . IN OTHER WORDS , WHILST ACKNOWLEDGING THAT CERTAIN SUPPLEMENTARY EXPLANATIONS MAY PROVE NECESSARY , THE BELGIAN INSTITUTION NEVERTHELESS ARGUES THAT SUCH INFORMATION MAY NOT BE TAKEN INTO ACCOUNT UNLESS THE SCRUTINEER INSTITUTION EITHER AMENDS THE FORM OR SENDS A FRESH ONE AS THE BELGIAN INSTITUTION HAD EXPRESSLY REQUESTED .

8 HAVING REGARD TO THE VIEW TAKEN BY THE BELGIAN INSTITUTION , THE BELGIAN COUR DE CASSATION RAISED THE QUESTION SET OUT ABOVE , BY WHICH IT REQUESTS THE COURT , IN SUBSTANCE , TO RULE UPON THE LEGAL SIGNIFICANCE OF FORM E 26 .

9 IN ORDER TO REPLY TO THAT QUESTION , IT SHOULD FIRST BE STATED THAT ARTICLES 33 AND 34 OF REGULATION NO 4 , AS WELL AS THE RULES ADOPTED BY THE ADMINISTRATIVE COMMISSION AS REGARDS THE FORM IN QUESTION , MUST BE INTERPRETED IN THE LIGHT OF ARTICLES 48 TO 51 OF THE EEC TREATY WHICH THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY HAVE AS THEIR BASIS , THEIR FRAMEWORK AND THEIR BOUNDS ( JUDGMENT OF THE COURT OF 5 JULY 1967 IN CASE 1/67 CIECHELSKI ( 1967 ) ECR 181 ). IN FACT THOSE PROVISIONS ARE AIMED AT SECURING FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMON MARKET BY PERMITTING THEM INTER ALIA TO AVAIL THEMSELVES OF RIGHTS ARISING OUT OF PERIODS OF EMPLOYMENT COMPLETED IN DIFFERENT MEMBER STATES . THE LEGAL SIGNIFICANCE OF FORM E 26 MUST THEREFORE BE APPRAISED IN SUCH A WAY AS NOT TO JEOPARDIZE THE EFFECTIVENESS OF THOSE ARTICLES AND THOSE REGULATIONS CONCERNING THE RIGHTS OF MIGRANT WORKERS IN THE FIELD OF SOCIAL SECURITY .

10 ARTICLES 33 AND 34 OF REGULATION NO 4 MUST THEREFORE BE INTERPRETED IN THE LIGHT OF THOSE PRINCIPLES . ARTICLE 33 PROVIDES THAT FOR THE SCRUTINY OF THE CLAIMS FOR BENEFITS DUE , BY VIRTUE OF ARTICLES 26 TO 28 OF REGULATION NO 3 , THE SCRUTINEER INSTITUTION IS TO ' ' USE ' ' A FORM FOR THE DRAWING-UP OF WHICH THE AFOREMENTIONED ADMINISTRATIVE COMMISSION WAS MADE RESPONSIBLE , BUT THAT ARTICLE DOES NOT PRECLUDE THE GIVING OF OTHER SUPPLEMENTARY INFORMATION . ARTICLE 34 ( 1 ) OF THAT REGULATION PROVIDES THAT THE SCRUTINEER INSTITUTION , HAVING ENTERED ON THE FORM THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION TO WHICH IT IS SUBJECT , IS TO SEND A COPY OF THE SAID FORM TO THE COMPETENT INSTITUTIONS OF EACH OF THE OTHER MEMBER STATES UNDER WHOSE LEGISLATION THE INSURED HAS COMPLETED SUCH PERIODS . IT IS CLEAR FROM THESE PROVISIONS THAT THE PROCEDURES LAID DOWN ARE ESSENTIALLY INTENDED TO ASSIST THE SOCIAL SECURITY INSTITUTIONS IN THE PERFORMANCE OF THEIR DUTIES AND TO SIMPLIFY THE COMPLEX ADMINISTRATIVE OPERATIONS OF AGGREGATION AND APPORTIONMENT IN THE VARIOUS MEMBER STATES INVOLVED . THE SCRUTINEER INSTITUTION ' S DUTY OF SENDING THE FORM TO THE OTHER INSTITUTIONS INVOLVED DOES NOT MEAN THAT ANY OTHER SUPPORTING DOCUMENTS THEREBY LOSE ALL PROBATIVE VALUE WITH THE RESULT THAT IT IS NO LONGER POSSIBLE TO RELY ON SUCH DOCUMENTS TO SUPPLEMENT OR EXPLAIN THE FORM . THE FORM IS THEREFORE NOT EXHAUSTIVE IN THE SENSE THAT IT DOES NOT PRECLUDE THE INFORMATION WHICH IT CONTAINS FROM BEING SUBSEQUENTLY EXPLAINED BY OFFICIAL DOCUMENTS SUCH AS THE LETTERS OF 5 AND 21 MARCH 1970 SENT TO THE BELGIAN INSTITUTION BY THE GERMAN INSTITUTION . THE INSTITUTION TO WHICH IT IS ADDRESSED IS THEREFORE OBLIGED TO TAKE INTO ACCOUNT THE INFORMATION CONTAINED IN THOSE DOCUMENTS EVEN IF THAT INFORMATION DOES NOT CONSIST OF AN AMENDMENT OF THE FORM PREVIOUSLY SENT .

11 THE REPLY TO BE GIVEN TO THE QUESTION RAISED BY THE BELGIAN COUR DE CASSATION MUST THEREFORE BE THAT THE FORM PROVIDED FOR BY ARTICLE 34 OF REGULATION NO 4 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 DECEMBER 1958 MAY BE SUPPLEMENTED OR EXPLAINED SUBSEQUENTLY BY OTHER INFORMATION EVEN IF THAT INFORMATION DOES NOT CONSIST OF AN AMENDMENT OF THE FORM PREVIOUSLY SENT .

COSTS

THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BELGIAN COUR DE CASSATION , BY JUDGMENT OF 6 APRIL 1981 , HEREBY RULES :

THE FORM PROVIDED FOR BY ARTICLE 34 OF REGULATION NO 4 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 DECEMBER 1958 MAY BE SUPPLEMENTED OR EXPLAINED SUBSEQUENTLY BY OTHER INFORMATION EVEN IF THAT INFORMATION DOES NOT CONSIST OF AN AMENDMENT OF THE FORM PREVIOUSLY SENT .