Court of Justice 11-03-1982 ECLI:EU:C:1982:89

I — Facts and written procedure

Mr Knoeller, a German national, worked from 1927 to 1937 in Belgium where he was compulsorily insured. He then worked in Germany until 18 August 1967 on which date his employment was terminated by his employer. From 19 August to 1 December 1967 he was registered as unemployed and received unemployment benefits from the competent Arbeitsamt [Employment Office].

On 4 December 1967, Mr Knoeller lodged a claim for an invalidity pension with the Landesversicherungsanstalt Rheinprovinz [Regional Insurance Institution for the Rhine Province, hereinafter referred to as “the German institution”] which granted him such a pension under the heading Erwerbsunfähigkeitsrente [disability pension] with effect from 1 December 1967.

Pursuant to Regulations Nos 3 and 4 of the Council of the European Economic Community concerning social security for migrant workers, the German institution forwarded to the Institut National d'Assurance Maladie-Imahditŕ (hereinafter referred to as “the Br run institution”) a request for the grar.proportional Belgian invalidity pc -.i>n To that end it forwarded to the hr.jr. institution Form E 26, prescribed. Jer Article 2 (1) of Regulation No a, he Council of the European Ea K>mic Community of 3 December 19.on implementing procedures and supplementary provisions in respect of Regulation No 3 concerning social security for migrant workers, on which even' social security institution must state the insurance periods recognized by its national legislation.

Under Belgian law, an invalidity pension is granted only if, inter alia, the claimant has completed 120 days of work, or days assimilated thereto, during the last six months preceding the cessation of work. In the present case, in order to claim that pension, the claimant had to prove that he had worked at least 120 days between 1 June 1967 and 1 December 1967 (six months). But the Form E 26 sent by the German institution mentioned only the period to 18 August 1967 and did not take into consideration the period of unemployment as from that date. Therefore, in the eyes of the Belgian institution, the claimant was unable to satisfy the aforementioned condition necessary to found the right in Belgium to an invalidity pension. However, the German institution, in two letters addressed to the Belgian institution, dated 5 and 21 March 1970, stated that the period of unemployment following the occurrence of invalidity could not be taken into account under German law for the purposes of an invalidity pension but that the insured was nevertheless considered as legally “insured” during that same period.

In spite of those explanations, the Belgian institution, having regard to the provisions of Belgian law applicable by virtue of Community rules, concluded that Mr Knoeller was not entitled to the Belgian proportional pension and maintained its refusal, insisting on its own interpretation of the statements appearing on Form E 26. Indeed, according to the statements made on the form,Mr Knoeller had not completed 120 days of work, or days treated as such, during the six months prior to 1 December 1967, the date on which the invalidity pension was granted to him in the Federal Republic of Germany, and the period of employment or periods assimilated thereto had come to an end on 18 August 1967.

Mr Knoeller lodged a complaint against the decision of the Belgian institution with the Tribunal du Travail [Labour Tribunal], Verviers. The tribunal gave judgment on 2 March 1972 finding as a fact that the applicant was in fact incapable of working as from 19 August 1967 and that the period from 19 August to 1 December 1967 was treated under German law as a period assimilated to a period of employment. The tribunal thus found that the requirements of Belgian law had been satisfied and held that the applicant was entitled to the grant of the invalidity pension from the Belgian institution.

The Belgian institution appealed against that decision to the Cour d'Appel [Court of Appeal], Liège, which, by judgment of 2 April 1973, fully upheld the judgment appealed against.

The Belgian institution then appealed to the Cour de Cassation, which took the view that since the judgment of the Cour d'Appel was being criticized for having decided that it was not necessary to have regard solely to the statements made on Form E 26 provided for by Article 33 of Regulation No 3 and by Article 34 of Regulation No 4, but that that form was intended for purposes of information and might be supplemented or explained subsequently and that, precisely for that reason, regard should be had to the explanations given by the German institution in its letters of 5 and 21 March 1970. Considering that that ground raised a question of the interpretation of Community law, the Cour de Cassation decided by judgment of 6 April 1981 to stay the proceedings and referred 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?”

The order making the reference was registered at the Court on 16 April 1981.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted on behalf of the Belgian institution by Adolphe Houtekier, Advocate at the Belgian Cour de Cassation, and by the Commission of the European Communities, represented by its Legal Adviser, Jean Amphoux, acting as Agent, assisted by Georges Vandersanden, of the Brussels Bar.

On hearing the report of the Judge-Rapporteur and the views of the Avocate General the Court decided to open the oral procedure without any preparatory inquiry.

Bv order of 11 November 1981, the court, pursuant to Article 95 (1) of the Rules of Procedure, assigned the case to the First Chamber.

II — Written observations submitted in pursuance of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. The Institut National d'Assurance Maladie-Invalidité, after referring to the facts of the case and to the relevant Belgian legislation and to the order making the reference by the Cour de Cassation, submits essentially the following observations :

• Claims for benefit by migrant workers and the scrutiny of those claims under Anieles 26 to 28 of Regulation No 3 are governed by Regulation No 4. Articles 33 and 34 of that regulation provide that a form shall be used for the scrutiny of such claims which must, in particular, contain the detail and total of the insurance periods and periods assimilated thereto completed by the insured person under the legislation of each of the Member States to which he has been subject. Those articles also provide that the sending of that form to the competent institutions of another Member State supersedes the forwarding of supporting documents and that the scrutineer institution shall enter on the form the details of the insurance periods or periods assimilated thereto completed under the legislation to which it is subject and must send the form thus completed to each of the competent institutions, which must determine the rights which arise under its own legislation, regard being had to the provisions of Articles 26 to 28 of the regulation, and which must also state the amount of benefit which the claimant may claim, for those insurance periods and periods assimilated thereto completed solely under the legislation applied by it without application of the provisions of Article 27. Those articles further provide for the whole of that information to be entered on the form together with an indication of rights of appeal and the periods of time within which they are to be brought. The form must then be returned to the scrutineer institution.

• In the present case Form E 26 did not state that the period from 19 August to 1 December 1967 was to be deemed to be an insurance period or a period assimilated thereto. Despite repeated requests from the Belgian institution the German institution did not at any time amend Form E 26 and refused to forward a revised form. The Belgian institution was thus unable to include the period in question for the purposes of aggregation since it was not indicated as such by the German institution on the form intended for this purpose.

• The Belgian institution does not deny that information may be given in addition to Form E 26 and acknowledges that supplementary explanations as to its terms are often necessary. Nevertheless, in its opinion, those explanations cannot replace Form E 26, when they are in summary form or too brief, as in the present case, in particular when they concern periods which are not mentioned in that document. In fact Form E 26 is a document of prime importance in this respect whose nature and objective are to certify that there have been insurance periods completed under the legislation of the various competent institutions. Forms E 26 and E 27, far from being of value simply for information purposes, are official documents which, pursuant to Article 27 of Regulation No 3 and Articles 13 (1) (a), 33 and 34 of Regulation No 4, give details of the actual periods of insurance or periods assimilated thereto recognized as such by the institutions of the Member States where they have been completed. For a consideration of the conditions for the acquisition of a right to receive benefits, only those insurance periods which are included on the form are valid, where the aggregation of the periods of insurance is necessary. On the other hand any period not included on Form E 26 or E 27 is not recognized as a period of insurance, or period treated as such, by the relevant institution which completed the Form E 26.

• By judgment of 6 June 1972 in Case 2/72 Murru v Caisse Régionale d'Assurance Maladie de Paris [1972] ECR 333, the Court of Justice held that, in order to ascertain whether and to what extent a period of unemployment may be assimilated to a period of employment for the purpose of determining the entitlement of a migrant worker to an invalidity pension, reference must be made to the legislation under which such period was completed. That complies with the principle laid down by Articles 27 and 28 of Regulation No 3 and by Article 51 of the Treaty which expressly provides for the aggregation of all periods taken into account under the legislation of the various Member States. It is clear that the principle of aggregation of insurance periods would be undermined if the Belgian institution, in examining whether the conditions had been satisfied for the acquisition of a right to invalidity benefit, had to take into consideration a period of unemployment in Germany which cannot be taken into account in that State to calculate the invalidity pension, since it was subsequent to the occurrence of the risk, and which cannot in any event be taken into account for the fulfilment of the conditions of insurance provided for in that country.

• In reaching a solution to the problem it is therefore necessary to follow the guidelines of the case-law of the Court of Justice on this matter, which emerge from the judgment of 9 July 1975 in Case 20/75 D'Amico [1975] ECR 891 where the Court held that “under Article 51, implementing regulations must secure for migrant workers aggregation ... of all periods taken into account under the laws of the several countries ”; and from the judgment of 5 December 1967 in Case 14/76 Welchner [1967] ECR 331 where the Court held that “... the term ‘assimilated periods’means periods treated as insurance periods or, where applicable, as periods of employment, as defined in the legislation under which they were completed, in so far as they are regarded by the said legislation as being equivalent to insurance periods or periods of employment” and “in particular, the phrase ‘in so far as they are regarded ... as being equivalent...’ shows that the regulation is also referring to the conditions under which national law will regard a given period as being equivalent to insurance periods properly so called”.

• Articles 33 and 34 of Regulation No 4 provide for the use of certain forms for the communication of periods of insurance and periods assimilated thereto which each competent institution recognizes by entering them on the correct form. That system guarantees that a period of insurance completed in a Member State other than the competent Member State is taken into consideration and the question whether such a period is valid must be determined by the institution applying the legislation under which that period was completed. If th* competent institution ignores the info: mation given on Form E 26, that entails great inconvenience for the insurance institutions which must have precise information available in order to be able to determine whether the claimant satisfies the necessary conditions for entitlement to benefits; those inconveniences arise, inter alia, from the fact that incomplete or imprecise information may thus be given and that different interpretations might therefore be possible.

• In conclusion, the Belgian institution considers that it is necessary in principle to adhere to the information given on Form E 26. Alternatively, if the Court should take the view that Community rules do not prescribe the mandatory use of a certain document and that another document may be used the Belgian institution considers it to be essential that that other document should provide the guarantees which Anieles 33 and 34 of Regulation No 4 were intended to secure in relation to the forms provided for in the context of the application of the EEC regulations. Furthermore, regard must be had to the relevant German legislation to determine whether the period completed by Mr Knoeller in Germany may be regarded as an assimilated period.

2. The Commission of the European Communities submits essentially the following legal observations:

The question raised by the Belgian Cour de Cassation seeks to ascertain whether the forms drawn up by the Administrative Commission set up by Regulation No 3 of the Council of the European Economic Community are exhaustive or whether they may be supplemented by further information. The question therefore involves the problem of defining the powers of that commission and the nature of its decisions. Under Article 43 (a) of Regulation No 3 the Administrative Commission is responsible, inter alia, for settling all administrative questions and questions of interpretation arising under the regulation and subsequent regulations, without prejudice to the right of the authorities, institutions and persons concerned to have recourse to the procedures and legal remedies prescribed under the legislation of Member States, by the regulation or by the Treaty.

Pursuant to Article 2 (1) of Regulation No 4 models of certificates, certified statements, declarations, applications and other documents required for giving effect to Regulations Nos 3 and 4 are to be drawn up by the Administrative Commission which is thus responsible for working out the forms and models needed for the application of the provisions of the two regulations.

The powers of the Administrative Commission were clearly laid down by the judgment of the Court of Justice of 14 May 1981 in Case 98/80 Romano v INAMI [1981] ECR 1241 in which the Court held at paragraph 20 that “it follows both from Article 155 of the Treat)' and from the judicial system created by the Treaty, and in particular by Articles 173 and 177 thereof, that a body such as the Administrative Commission may not be empowered by the Council to adopt acts having the force of law. Whilst a decision of the Administrative Commission may provide an aid to social security institutions, ... it is not of such a nature as to require those institutions to use certain methods or adopt certain interpretations when they come to apply the Community rules”. That passage of the aforementioned judgment merely confirms Article 43 (a) of Regulation No 3 which, as has been seen, makes the Administrative Commission responsible for settling all administrative questions and questions of interpretation, “without prejudice to the right of the authorities, institutions and persons concerned to have recourse to the procedures and legal remedies prescribed under the legislation of Member States”. According to the Commission it follows that the powers of the Administrative Commission are limited to drawing up forms to facilitate the application of Community legislation or to giving advice on that legislation, but those forms or that advice are merely of value for information purposes since the Administrative Commission does not have in any event power to draw up forms having mandatory force.

Having said that, the Commission examines in detail Form E 26 and states that its purpose is to set out in a comprehensible manner the different periods during which the claimant has been covered by insurance and to facilitate relations between the various insurance institutions of the Member States. The purpose of the form in question if hus essentially to facilitate the pracr implementation of Community re..tions in the social security field wnnout nevertheless being exhaustive. Its use is not an essential formal requirement precluding other information or documents from being obtained and the Belgian institution was not entitled to attribute to it the status of such a requirement.

More generally, the Commission states finally that the powers of the Administrative Commission and the legal status of the documents drawn up by it must be interpreted in accordance with the objectives of the EEC Treaty; and that the objectives pursued by Articles 48 to 51 are intended to favour migrant workers by allowing them to improve the incomplete rights which they have not been able to perfect by means of their various periods of residence in the Member States, and entail the elimination of all obstacles prejudicing migrant workers. In that context the strictly formal interpretation which the Belgian institution wishes to give to the forms would jeopardize the effective application of Articles 48 to 51 of the Treaty and of the regulations in the social security field.

The Commission proposes therefore that the following reply should be given to the questions put by the Belgian Cour de Cassation:

“Form E 26 like all other forms drawn up by the Administrative Commission, establishes the framework permitting an exchange of information in implementation of the regulations in the social security field concerning migrant workers. That information may always be supplemented or explained by further information.”

III — Oral procedure

At the sitting on 21 January 1982 oral argument was presented by the following: G. Jacobs of the Brussels Bar, for the Institut National d'Assurance Maladie-Invalidité; T. Amphoux, acting as Agent, assisted G. Vandersanden of the Brussels Bar ir the Commission of the European Communities.

The Advocate General delivered his opinion at the sitting on 4 Februan. 1982.

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.