DELIVERED ON 10 FEBRUARY 1982 (*1)

Mr President,

Members of the Court

The case of Mrs Baccini shows that the measures to coordinate or link national social security schemes prescribed by Article 51 of the EEC Treaty to help workers move freely and which are now mainly contained in Regulation No 1408/71 (codified version, Official Journal 1980, C 138, p. 1) do not always lead to the desired result in national practice. Owing to the literal application of the relevant national law of two Member States, the failure to take account of the unavoidable delays in administrative procedures, particularly where a large number of administrative authorities cooperate internationally, and owing to interpretations of Community law which are in themselves comprehensible although open to question, a result was achieved in this case which at the hearing the Commission's representative justifiably likened to a Kafka novel. Indeed, as a result of that set of circumstances, the linkage of social security schemes led to Mrs Baccini's not securing the maintenance or even an increase of national benefits as intended by Article 51. Quite the reverse, financially she has ended up in a considerably worse situation than that in which she would have been if Belgian law alone had been applied and not Community law. That cannot have been the intention of Regulation No 1408/71, but that is not to say that the issue which has arisen can be resolved by this Court. Even the Community legislature did not recognize in time that practical difficulties such as those now in question might arise. The reoccurrence of such absurd results produced by the measures implementing Article 51 of the EEC Treaty has now been prevented by the Community legislature through Regulation No 2793/81 of 29 September 1981 (Official Journal 1981 L 275, p. 1) only as regards the future. The question now before the Court is whether by construing Community law as it stood at the date on which Regulation No 2793/81 entered into force the Court can also find a satisfactory solution to the problems which have arisen in respect of that earlier period which does justice to the clear aims of Article 51 of the EEC Treaty, or whether the provisions of Community law, as they stood during that period, prevent such a solution, in which case a solution will have to be sought in the national law of the Member States concerned. Although this Court has no power to interpret national law, it is partly for that reason, but primarily for a good understanding of the underlying facts of the problem, that I shall consider the relevant national law of Belgium and Italy in this opinion. It will emerge from my analysis of the law of those two countries first that the problem submitted to the Court arose partly, although not exclusively, through the provisions of the relevant Belgian and Italian law and their construction by the competent national authorities. Secondly, it will emerge that it might not be impossible to resolve the problem on the basis of either Belgian or Italian law, even without the complementary application of Community law. However, a determination of the national law on the basis of which the problem must then be resolved would then only be possible on the basis of provisions of Community law. Because the questions submitted to the court relate solely to Community law the Court will, moreover, not be able to escape a closer interpretation of Community law in cases such as this. Finally, interpretation of Community law is also desired because an analysis of the case shows that ultimately the problem arose precisely as the result of that law.

It became clear during the course of the proceedings that the case submitted to the Court is not the only one of its kind. According to information given to the Court during the proceedings, in Belgium alone there are about forty similar cases waiting for the outcome of the Baccini case. Moreover, the Commission considers it probable that similar problems will arise in the future between Member States other than those concerned in this case. I, too, think this is probable. I think it is probable not just because if the existing economic crisis continues it may tempt other Member States to apply unemployment benefits restrictively where, as in this case, claimants are in receipt of different benefits in another Member State. I also think it is probable because the problem of the occasionally very long duration of correspondence between the competent institutions caused by the linkage of the national social security schemes may also occur in other branches of social security. Therefore I do not rule out that the Community legislature will, in view of this case, have to devote attention more generally to the problems which the time factor creates in the practical coordination of social security schemes. This case is novel not only because it is the first to my knowledge to be concerned with the disastrous effect which the time factor may have in some circumstances on the effective coordination of social security schemes; it is also novel because the question of overlapping unemployment and invalidity benefits has never been dealt with by the Court before.

The nature and significance of the problem of interpretation are put in general terms in the two questions which the Cour du Travail, Mons, has referred to the Court. Those questions read as follows:

1.Must Article 51 of the Treaty of Rome and Regulations Nos 1408/71 and 574/72 be interpreted as meaning that it is in accordance with the aims of the Treaty for a migrant worker to be prohibited from receiving both unemployment benefit in a Member State of the Community (in which he fulfils the conditions of that State's legislation as to the state of incapacity denied by the authorities of that State) and an apportioned invalidity pension (type B legislation) payable by another Member State for incapacity for work accepted by the authorities of that State, when both social security benefits do not cover the same injury, the amount of the invalidity benefit is much lower than the unemployment allowance and the two medical authorities of the competent institutions have adopted different attitudes as to the claimant's state of incapacity?

2.If a worker is in receipt of an allowance for incapacity for work under the legislation of Member State A (type A legislation) and invalidity benefits (type B legislation) payable by an institution in Member State B pursuant to Community regulations, and that worker then ceases to be accepted as unfit for work by the competent authority in State A, ceases to draw benefit under the invalidity insurance legislation of that State's competent institution but signs on for unemployment benefit with State A's competent institution whilst nevertheless still drawing State B's invalidity pension (the attitude of the competent authority in State B remaining unchanged), is the competent institution of State A justified on the basis of the aims of Article 51 of the Treaty in claiming that there is incompatibility between two benefits of a different kind (unemployment benefit and invalidity pension) and in relying on national rules on overlapping to reduce the employment benefit to nothing? If the answer is in the affirmative is not that situation itself the result of the enjoyment of the invalidity pension under Regulation No 1408/71 so that the regulation does not provide the security required by Article 51 of the Treaty and is contrary to the objectives of the Treaty?

Although they relate to different aspects of Community law, the two questions put to the Court essentially seek to establish whether a provision of national law against the overlapping of benefits is also compatible with Article 51 of the EEC Treaty, Regulation No 1408/71 and Regulation No 574/72 (Official Journal, English Special Edition 1972 (I), p. 159) in the case of two benefits of a wholly different kind, one of which is based solely on the national law of one Member State whilst the other could be based on the national law of another Member State only by virtue of Community law, with the result that the amount of benefit is lower than that which the worker would have received had he worked only in the first-named Member State.

Although other provisions of Community law were discussed in detail during the proceedings, the Court is thus asked primarily to interpret Article 12 of Regulation No 1408/71. Particularly in point is the interpretation of the second paragraph of that article which deals with overlapping benefits of a different kind, as in this case. Besides that provision, particular consideration was given in the proceedings to Article 40 of the same regulation and Articles 36, 41 and 44 of Regulation No 574/72 owing to the part which their application in this case originally played in bringing about the conflict. Finally, there is a request for an interpretation of Article 51 of the EEC Treaty itself, the aim of which might be a factor in the interpretation of its implementing provisions.

As I have said before, the underlying practical problem is however partly caused by what happens in practice where the relevant national systems are coordinated and by the provisions of the relevant national legislation. In order to put the case in the correct perspective I shall therefore first give a summary of the main relevant administrative events and the part they played in causing the problem to arise. I shall then look more closely at the main provisions of Belgian and Italian law which played a role in this case. Only against the background of those administrative and legal circumstances shall I then finally consider the questions of Community law which have been posed.

Mrs Baccini, an Italian national, worked first in Italy and then in Belgium from 1962. On 5 July 1973 she became entitled in Belgium to an invalidity benefit. She was later declared to be fit for work in that country. The Belgian invalidity benefit was withdrawn and because she was unemployed it was replaced by an unemployment benefit. Meanwhile the apportioned Italian invalidity benefit awarded pursuant to Regulation No 1408/71 also continued to be paid owing first, to Italian legislation and, secondly, to the delay factor which I have mentioned. By virtue of the provisions of Belgian law against the overlapping of benefits that led to the withdrawal of the much higher Belgian unemployment benefit and a demand for its repayment in so far as it had already been paid.

However, as regards the interaction of the relevant Belgian and Italian schemes and the resultant delays, both of which contributed to the underlying problem, a more detailed summary of the facts is highly instructive.

The first phase

On 5 July 1973 Mrs Baccini obtained the Belgian invalidity benefit. Not until 6 September 1974, that is fourteen months later, did the competent Belgian institution, the Rijksdienst voor Ziekteen Invaliditeitsverzekering (better known to the Court under the French abbreviation INAMI and hereinafter referred to as “the Belgian institution”) inform the competent Italian institution, the INPS (hereinafter referred to as “the Italian institution”) about this, pursuant to Regulation No 574/72. A good three years later, on 13 September 1977, the Italian institution informed Mrs Baccini that as from 1 August 1974 she had also been awarded an apportioned Italian invalidity pension. This last benefit was partly based on the relevant provisions of Community law coordinating national social security schemes. The delayed reaction of the Italian institution was partly the result of more detailed information which it requested from the Belgian institution on 5 June 1976. Thus, for the purpose of the award of the Italian benefit, that coordination in practice took a good four years. As I have already remarked, the fact that the coordination process takes so long will rob Community law of much of its practical importance for claimants and not only in a case such as this. The retroactive effect of the delayed decision to award a benefit will in most cases do little if nothing to alter that alarming conclusion.

The second phase

From 28 April 1975 to 4 June 1975 Mrs Baccini was declared fit for work again in Belgium which meant that her invalidity benefit was convened into unemployment benefit while she was unemployed. As far as can be seen from the file on the case, this phase is not relevant for the purposes of the present case.

The third and fourth phases

On 5 June 1975 Mrs Baccini was once more declared unfit for work in Belgium. She then received Belgian invalidity benefit again until 1 September 1977 on which date she was declared fit for work again. The invalidity benefit was once more convened into unemployment benefit. As far as can be made out from the file in the case, the Italian institution was not informed by the Belgian institution until 23 June 1977, of the declaration concerning Mrs Baccini's unfitness for work made on 5 June 1975, that is a good two years after the event, and was not informed about her being declared fit for work again until 17 October 1977 or 17 October 1978 (both dates are mentioned in the file).

However, on 18 April 1978 the competent Italian Consulate in Belgium had at Mrs Baccini's request notified this last fact to the Italian institution in any case and asked to be informed about its consequences for the purpose of the Italian benefit.

The fifth phase

On 8 December 1978 the Belgian authorities decided, on the basis of the provisions of Belgian law against the overlapping of benefits, and evidently without waiting for a response from the Italian authorities to the information given to them, to stop paying unemployment benefit to Mrs Baccini and to demand repayment of the benefit already paid.

The sixth phase

In order to restrict the catastrophic effects of the interaction of Community law and national law in practice, or at least to limit them in time, on 11 December 1978 Mrs Baccini requested the Italian institution to suspend the Italian benefits. With the benefit of hindsight, it might have been better for her to request the benefits to be withdrawn with retroactive effect from 1 September 1977 and to indicate that she was willing to repay the benefits which she had received in respect of that period. But she cannot really be criticized for not doing that. As we shall see later, the grant and withdrawal of benefits in Italy in a case such as this should take place ex officio and no action on the part of recipients of benefits is required. On 22 May 1980 the Italian institution informed Mrs Baccini that it had stopped the benefits as from 1 February 1980. On 18 September 1981 the Council adopted Regulation No 2793/81 amending Regulation No 1408/71. Amongst other things it brought to an end the concordance of conditions regarding invalidity between Belgium and Italy. Mrs Baccini's problem therefore remained unresolved as regards the period from 1 September 1977 to 1 February 1980.

During that period she did receive a small Italian benefit but she had to pay back much higher Belgian unemployment benefit over the same period. Thus in her case the system of coordinating national social security schemes led in the result to the competent Belgian institution's making a claim for repayment of benefits which she could not meet.

For a proper understanding of the contribution of the national legislation of Belgium and Italy to that result, which the Commission has described as absurd, I shall now summarize the most important relevant provisions of national law.

3 The main relevant provisions of national law

3.1. The Belgian legislation

The main Belgian benefits for incapacity for work and invalidity benefits are based on the Law of 9 August 1963 on the introduction and organization of a scheme of compulsory sickness and invalidity insurance. This Law is so called type A legislation, as the national court correctly indicated in its second question. As the Court will know, the division of legislation on invalidity into types A and B stems from Regulation No 3/58 but it is still used by those versed in this branch of law.

In the case of type A legislation the amount of the benefits is fixed at a certain amount which does not depend on the length of the claimant's periods of insurance. On the other hand it follows from Articles 46 and 50 of the Belgian Law that both the primary benefit for incapacity for work, which lasts for a maximum period of one year, and the subsequent invalidity benefits are paid only while the claimant continues to be unfit for work. Under Article 51 of the Law, the Medical Council on Invalidity, acting on the basis of a report drawn up by the medical practitioner advising the insurance institution, determines the degree of invalidity and assesses its duration. Under the second paragraph of Article 51, the advising medical practitioner, or, if asked to do so, the medical inspector, may determine that invalidity has come to an end. Mrs Baccini's difficulties were in part due to the fact that as a result of the time factor, amongst other things, the Belgian declaration of 1 September 1977 that she was fit for work did not cause the Italian invalidity pension to be withdrawn until 1980.

Besides the legislation on sickness and invalidity, the Belgian Royal Decree of 20 December 1963 on employment and redundancy played a considerable pan in these proceedings. By virtue of the third paragraph of Article 41 of that Royal Decree “a worker in receipt of a benefit under a foreign sickness and invalidity insurance scheme for incapacity for work not caused by an accident at work or by occupational disease shall not be entitled to unemployment benefit for incapacity for work if the degree of that incapacity is 50 % or more”.

There was an interesting discussion in the written and oral procedure on the question whether that article was correctly applied in this case since the declaration of fitness for work made by the competent Belgian authority shows that the condition or presumption contained in that article was not fulfilled. According to the Commission (which here relies on the authoritative Belgian work of P. Denis and P. Gosseries, Droit de la Sécurité Sociale, Brussels, 1973, p. 370) entitlement to unemployment benefit in Belgium is dependent on three conditions: first, the claimant must be unemployed, secondly he must be involuntarily unemployed and third he must be available on the labour market, that is to say be fit for work. Conversely, unfitness for work rules out entitlement to employment benefit. In the case of a Belgian invalidity benefit the first paragraph of Article 141 of the Royal Decree makes no separate presumption of unfitness for works so that the mere receipt of a Belgian invalidity benefit precludes the right to unemployment benefits. However, the third paragraph of Article 141, which I have cited, is framed differently on this essential point. In the Commission's opinion, the wording of that provision does therefore permit or even require an interpretation which excludes its application if a claimant is fit for work. Although the Court cannot rule on this question of interpretation of national law and such a question is therefore rightly not put to the Court, it may be concluded from this discussion that a solution of the problem on the basis of Belgian law does not appear to be ruled out a priori.

Besides Article 141 of the said Royal Decree, Article 146 of the same Decree is also of some relevance for an understanding of the provisions of national law which played a part in causing Mrs Baccini's problem to arise. So far as is here material the first and second paragraphs of that article provides as follows:

Art. 146 (1)

If the workers referred to in Article 146 are in actual receipt of a pension the daily rate of which is lower than the daily rate of unemployment benefit specified for the claimant's category... they shall be entitled to unemployment benefit in an amount equal to the difference between the said rate and the daily rate of pension but not exceeding the amount of unemployment benefit.

(2)...

without prejudice to Article 142 the provisions of paragraph (1) shall apply to an unemployed person who is entitled to:

a miner's invalidity pension;

a disabled person's allowances...

a benefit granted under a foreign sickness and invalidity insurance scheme on account of incapacity for work of 50o/c or less not caused by an accident at work or occupational disease.

That provision was not applied by the Belgian authorities in this case because, contrary to the facts established by the same authorities in respect of the relevant period, it was assumed that an Italian benefit was paid for a degree of incapacity for work of more than 50%. In its written observations the Commission rightly pointed out the contradiction inherent in the views of the Belgian authorities: on the one hand Mrs Baccini was declared to be fit for work by the competent Belgian institution and on the other hand considered to be unfit for work on the basis of the Italian invalidity benefits which were still being paid. Subject to the same reservation that the Court is not called upon to interpret Belgian law, it may also be concluded with regard to Article 146 of the Belgian Royal Decree that the possibility of satisfactorily resolving the problem by means of a different interpretation of the Belgian legislation does not appear to be ruled out a priori.

From the point of view of Community law it is also relevant that the Commission considers Article 146 of the Belgian Royal Decree under consideration to be a typical provision for the prevention of overlapping benefits whereas the requirements of Article 141 are rather a condition for unemployment benefit. However, in view of paragraph 4 of the decision in Case 184/73 Kaufmann [1974] ECR 524, that distinction does not appear to be material from the point of view of Community law. What is relevant for the purposes of Community law is the question whether the determination in this case of a degree of incapacity for work of more than 50% accords with Article 40(4) of Regulation No 1408/71. Although the national court has not put any question on this point, I shall nevertheless make some observations on it in the final part of my opinion for the sake of completeness, for the construction placed on that provision by the Belgian authorities definitely contributed to the unfavourable outcome for Mrs Baccini of the national administrative procedure. Article 40(4) of Regulation No 1408/71 thus figured in the written and oral submissions made to the Court during the proceedings.

3.2. The italian legislation

Unlike the Belgian legislation, the Italian legislation on invalidity benefits is of the so-called type B legislation which means that the benefits depend on the length of the insurance periods. Only by the aggregation of the Belgian and Italian insurance periods in accordance with the applicable Community law could Mrs Bąccini acquire entitlement to a small apportioned Italian benefit. In accordance with Community law that Italian benefit was deducted from the higher Belgian invalidity benefits.

The relevant Italian provisions are to be found in Decree Law No 636 of 14 April 1939, later, so far as here material, incorporated in Law No 1276 of 6 July 1939 as it now stands after various amendments. Judging by Article 10 of the said Decree Law, the Italian benefits take the form of an invalidity pension which in principle is permanent. It is thus based on the presumption that, once determined, invalidity is permanent. From that both Mrs Baccini and the Commission deduce in their written observations that, once awarded, the Italian invalidity benefits cannot in principle be subsequently withdrawn. At the hearing the representative of the Italian Government did confirm in answer to a question put by the Judge-Rapporteur that this was the case but he did not rule out the benefits being withdrawn in the light of new facts. In fact Article 10 of the Italian Decree Law provides as follows:

“An insured person whose earning capacity in employment suited to his abilities is reduced permanently owing to sickness or physical or mental disability to less than one-third shall be considered to be unfit for work.

The invalidity pension shall be withdrawn if the recipient's earning capacity ceases to be less than the limit indicated in the first paragraph hereof. The provisions of the third paragraph of Article 61 of the Regio decreto legge No 1827 of 4 October 1935 shall remain in force.” (2)

In my view it is clear from the second paragraph of that article that the Italian invalidity benefits should also be terminated ex officio if a recipient's unfitness for work, as described in the first paragraph, has come to an end. Following the Commission's description, in the annex to its written observations, of the inconsistencies in the Italian legislation, the degree of invalidity of more than two-thirds stipulated in the original text of the first paragraph of Article 10 has been restored. It then appears to follow from the second paragraph that the present problem might also be laid to rest by applying Italian law. However, that depends on the question of Community law whether the Belgian declaration of incapacity for work of 1 September 1977 was also binding on the Italian authorities. That again underlines the importance of the interpretation to be placed on Article 40(4) of Regulation No 1408/71.

3.3 Final observations

The analysis of the applicable Belgian and Italian law shows that the possibility of resolving the problem either on the basis of Belgian or Italian law does not appear to be ruled out. However, that presupposes in both cases an interpretation of Article 40(4) of Regulation No 1408/71 which the national court has not asked for. Above all, it is a question of the coordination of the relevant national legislation on the basis of which national law the solution would then have to be found. This question, too, can only be answered on the basis of Community law but here again the national court has not asked this Court any question on this matter. Finally, it must be observed that the present problem would never have arisen if Community law, in the case in point Article 40 of Regulation No 1408/71, had not required the Italian authorities to pay Mrs Baccini an apportioned Italian benefit. On pages 20 and 24 of its written observations the Commission therefore rightly observes that Community law must provide a solution to the present problem which it has itself brought about. As I said earlier, that has since been done by the Community legislature as regards the future. In the following part of my opinion I shall therefore examine whether this Court can, on the basis of Community law as it then stood, provide a solution as regards the period in which the present problem occurred.

4. Interpretation of the relevant provisions of Community law

4.1. Article 40 and Chapter 6 of Regulation No 1408/71

I think it is logical to consider first Article 40 of Regulation No 1408/71, although the questions put by the national court do not, or at any rate not expressly, relate to it. For, as I have said, the application given to that article is the direct cause of the problems which have arisen and on which the national court has submitted questions to this Court.

Mrs Baccini became entitled to an Italian benefit owing to the application of Article 40(1) of the regulation.

Of the articles to which that provision refers, the second subparagraph of Article 46(1) in particular is or some importance in this case. It provides that the competent institution of each Member State “shall also calculate the amount of benefit which would be obtained by applying the rules laid down in paragraph (2) (a) and (b). Only the higher of these two amounts shall be taken into consideration”. The Court has derived a restrictive principle from this provision as regards the effect of its case-law on the application by national courts of provisions of national law against overlapping benefits. I refer here in particular to the Court's judgments in Case 22/77 Mura [1977] ECR 1699 and Case 180/78 Brouwer-Kaune [1979] ECR 2118. The Court's reasoning in those judgments is also relevant mutatis mutandis to the present case.

Problems of interpretation have however occurred in this case particularly in connection with Article 40(4) which reads as follows:

“A decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislations of these States on conditions relating to the degree of invalidity is acknowledged in Annex IV.”

Until Regulation No 2793/81 amending Regulation No 1408/71 was adopted on 18 September 1981 the concordance between Belgian and Italian conditions in relation to the degree of invalidity was in fact acknowledged in Annex IV.

The question of interpretation which has arisen with respect to the relevant period prior to 17 September 1981 is whether Article 40(4) applies only to declarations of invalidity or also to declarations of sound health or fitness for work. On a very literal interpretation of the provision this question could be answered in the negative. It may also be answered in the affirmative on the basis of the logic of that provision considered in isolation. A decision concerning the degree of invalidity would then contain positive as well as negative conclusions as to the degree of invalidity. Between these, the question remains open whether subsequent decisions, which declare a state of invalidity previously found to exist to have come to an end by means of a declaration of fitness to work, are also binding on the institutions of other Member States. Like the Commission I am of the opinion that in any case this question can be answered only in the broader context of the entire scheme of the regulation. Both Article 40 as well as the whole of Chapter 2 of that regulation which relate to invalidity, are concerned with the determination of the benefits when invalidity occurs. No other aim can be inferred from Article 51 of the EEC Treaty, which the regulation implements, than that of guaranteeing migrant workers the right to acquire or maintain entitlement to benefits through the aggregation of relevant periods and the determination of the Member States required to pay benefits. Neither Article 51 nor the relevant chapter of the regulation contain any provisions concerning rights or obligations of Member States subsequently to withdraw rights once acquired. Judging by its title alone, Chapter 3 of Regulation No 574/72 deals exclusively with the submission and processing of applications for benefit, and not with the discontinuance of a benefit. Finally, this case provides a striking illustration of the fact that the delays which inevitably occur in the correspondence between the competent institutions of two or more Member States precisely where Article 40(4) is interpreted widely, as the competent Belgian institution advocates, must lead to results which do not promote the interests of migrant workers but positively harm them. This would be contrary to any reasonable interpretation of Article 51 and the implementing provisions based upon it.

Moreover, even an interpretation of Article 40(4) binding the Italian authorities to a Belgian declaration of fitness for work would not necessarily mean that the Italian benefit would have to be discontinued as well. For such a declaration is at most relevant for the purposes of the determination of the existence (or cessation) of invalidity. Continuing invalidity is, however, only one of the conditions for the continuance of national invalidity benefits. The right of a national legislative body to confer upon invalidity benefits, once granted, the character of a permanent and in principle non-withdrawable pension is not restricted by Community law. As I have said, various parties have stated in these proceedings that in principle the Italian benefits have that character of permanence.

As I remarked earlier, Regulation No 1408/71 does not seek to harmonize national social security schemes but, so far as is here material, only to coordinate them; this is necessary for the aims of Articles 48 to 51 of the EEC Treaty in order to ensure that migrant workers do not lose periods of insurance.

In view of the foregoing considerations, Article 40(4) of Regulation No 1408/71 must, in my view, be construed as meaning that it does not relate to decisions determining that a person entitled to invalidity benefits is once more fit for work. That construction as well as the limited meaning which even another construction of Article 40(4) would have for the purpose of the application of the Italian Law; means there there is nothing in the scheme of Regulation No 1408/71 which permits the discontinuance of Belgian invalidity benefits and their conversion into unemployment benefit from being accompanied by the continuance of Italian invalidity benefits which is permissible from the point of view of Community law.

The provisions of Chapter 6 of Title III of Regulation No 1408/71 concerning unemployment contain nothing on the overlapping of invalidity and unemployment benefits

4.2. Article 12 of Regulation No 1408/71

If the construction of Article 40(4) which I advocate is accepted and because of the permissible continuance of the Italian benefits — even if the provision is construed differently — then in the final analysis the crucial question is that of the permissibility of the anti-duplication provisions of national law preventing unemployment benefit paid in Member State A from overlapping with invalidity benefits paid in Member State B which are permissible in themselves.

The relevant provision of Community law is to be found in Article 12 of Regulation No 1408/71 concerning the prevention of overlapping of benefits. As this is not a case of benefits of the same kind the second paragraph of that article is particularly relevant. It reads as follows;

“The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the territory of another Member State. However, this provision shall not apply when the person concerned receives benefits of the same kind in respect of invalidity, old age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States in accordance with the provisions of Articles 46, 50, 51 or Article 60(1 )(b).”

This Court has already ruled on the scope of that provision in a large number of cases. I refer in particular to the following cases:

(1)Case 34/69 Duffy [1969] ECR 597. The case concerned the overlapping of old-age pensions and widows' pensions;

(2)Case 184/73 Kaufmann [1974] ECR 517 concerning the overlapping of benefits for incapacity for work and sickness benefit;

(3)Case 22/77 Mura [1977] ECR 1699. This case concerned invalidity pensions of Italian miners in Belgium and Italy. However, see also Cases 112/76, 32/77 and 37/77 which in the Opinion of Mr Advocate General Warner in the Mura case ([1977] ECR 1657) also dealt with;

(4)Case 180/78 Brouwer-Kaune [1979] ECR 2111. This case concerned the overlapping of an invalidity pension converted into an old-age pension and paid in one Member State with an invalidity pension paid in another Member State;

(5)Case 4/80 d'Amico [1980] ECR 2951 concerning the overlapping of an invalidity pension converted into an old-age pension with an invalidity pension which had not been so converted.

In its written observations the Commission cites yet other decisions of the Court relevant to this case. Those decisions do not, however, lead to substantially different conclusions.

For an analysis of the Court's previous decisions on Article 12 I can refer the Court to pages 15 and 16 of the Commission's written observations and to pages 171 to 187 of Social Security Law of the European Communities by Philippa Watson, London 1980.

Of prime importance in this case are the judgments in the Mura and Brouwer-Kaune cases together with the respective opinions of Mr Advocate General Warner and Mr Advocate General Capotorti. However, my brief description of the subject-matter of the judgments just cited shows that the issue of the overlapping of unemployment benefits and invalidity benefits now under consideration has not been submitted to the Court before.

Contrary to the view expressed by the Commission on page 18 of its written observations, I am of the opinion that Article 12(2) applies in principle in this case and consequently the decisions of the Court which I have cited are also relevant in principle to the answers to the questions put to the Court. Article 12 is contained in Title I, General Provisions, of the regulation. Article 12(2) refers, and without any limitation, to the overlapping of a benefit with other social security benefits. In principle that must therefore be taken to mean all the different benefits which are set out in Article 4 of the regulation, including unemployment benefits and invalidity benefits.

Therefore in order to answer the questions put to the Court it is necessary, having regard to Article 12(2) of Regulation No 1408/71 and to the case-law of the Court, which also applies in this case, to start from the premise that so long as a worker is receiving benefits (in this case unemployment benefits) by virtue of national legislation alone the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied to him in its entirety. For that initial principle I refer inter alia to paragraph 6 of the decision in Case 180/78 Brouwer-Kaune (cited above).

In my opinion, however, this initial premise should be supplemented and mitigated, amongst other things, by considerations such as those which the Commission indicated on pages 21 to 25 of its observations. Those considerations relate first to the recitals in the preamble to Regulation No 1408/71 (see the original text in the Official Journal, English Special Edition 1971 (II), p. 416) and the wording and the aim of Article 51 of the Treaty. I agree with the Commission's observations on this point as set out on pages 22 and 23 of its observations. Like the Commission, the first fundamental principle which I derive from the Court's decisions on this aspect is that the aim of Article 51 and the implementing regulations based upon it is to prevent a migrant worker from losing the benefit of the periods during which he has worked in the various Member States as a result of his moving from one Member State to another, and thus being put at a disadvantage compared to the situation in which he would have been had he spent his whole working life in one Member State. I would only add to the Commission's further observations that, upon analogous application to this case the point made by Mr Advocate General Warner in his Opinion in Cases 112/76, 22/77 and 32/77 cited by the Commission and which I have considered may be paraphrased and amplified as follows: “It would clearly be incompatible with the Treaty and particularly with Articles 7 and 48 (2) for a Member State to apply a provision of national law in such a way that after application of the national provisions against the overlapping of benefits the situation arises in which someone who has worked in both that State and in another State in fact receives less than if he had never worked anywhere else than in that State. That would indeed constitute discrimination against a migrant worker which is prohibited by the directly applicable Articles 7 and 48 (2) of the EEC Treaty”. Owing to circumstances directly related to his nationality a migrant worker is then always treated worse than a State's own nationals who have worked only in their own country. In my opinion if that consideration were applied it would be sufficient in itself to provide a convincing and conclusive solution to the problem before us.

However, I also endorse the second fundamental principle which the Commission derives, on pages 23 to 25 of its observations, from the Court's decisions. That principle is that the provisions implementing Article 51 may not deprive a migrant worker of rights which he would have acquired by virtue of the application of national legislation alone — therefore, in this case, without his also receiving another kind of benefit from another Member State as a result of the application of Regulation No 1408/71. Besides the authorities cited by the Commission, particularly paragraph 6 of the Court's decision in the Gravina case (Case 807/79 [1980] ECR 2205 at p. 2218), I would also refer at this point to the third sentence of paragraph 8 of the Court's decision in the Brouwer-Kaune case in which the Court expressly held that the protection of the rights which the person concerned possesses by virtue of national legislation alone is just as necessary as respect for any advantages resulting from Community law.

Finally, I also agree with the third principle stated by the Commission on page 25 of its observations that imperfections inherent in a system which coordinates laws which have not been harmonized may not be allowed to prejudice migrant workers. However, I consider that the first two principles of interpretation which the Commission derives from the Treaty, the Court's previous decisions and from the prohibition of discrimination which is laid down in Articles 7 and 48(2) of the EEC Treaty and which I have treated in greater detail provide more secure foundations for answering the questions put to the Court.

4.3. Answer to the questions raised

Finally, on the basis of the foregoing considerations, I propose that the questions put to the Court should be answered as follows:

1.Regulations Nos 1408/71 and 574/72 must be construed as meaning that so long as a worker receives benefits (in this case unemployment benefits) on the basis of national legislation alone the provisions of Regulation No 1408/71 taken on their own do not prevent the national legislation, including provisions against the overlapping of benefits, from being applied in its entirety.

2.It is however contrary to the aims of Article 51, which must be borne in mind when Regulation No 1408/71 is applied, and with the directly applicable Articles 7 and 48(2) of the EEC Treaty, to which Article 51 implicitly refers, for a provision of national law against the overlapping of benefits which is in principle permitted by Article 12(2) of Regulation No 1408/71 to be applied by the Member State concerned in such a way that a migrant worker is put in a less favourable position than if he had worked only in that Member State.

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(1) Translated from the Dutch

(2) Si considera invalido l'assicurato la cui capacita di guadagno, in occupazioni contacenti alle sur attitudini, sia ridona m modo permanente, a causa di iniermita o diletto tisico o mentale, a meno di un terzo.

La pensione di invalidità ė soppressa quando la capacita di guadagno del pensionato cessi di essere in/enore ai limiti indicati al 1o comma. Resta ferma la disposizione del terzo comma dell'ari. 61 del RDL 4 ottobre 1935. n. 1827.