JUDGMENT OF 29. 5. 1979 — JOINED CASES 173 AND 174/78 VILLANO v NORDWESTLICHE EISEN- UND STAHL-BERUFSGENOSSENSCHAFT

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

THE COURT composed of: J. Mertens de Wilmars, President of the First Chamber, Acting as President, Lord Mackenzie Stuart (President of the Second Chamber), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations

III — Oral Procedure

Decision

Costs

I —. Facts and procedure

1. Article 30 (1) of Regulation No 3 of the Council of the EEC on social security for migrant workers (Journal Officiel 1958, p. 561) and Article 61 (5) of Regulation (EEC) No 1408/71 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) both lay down the rule that where the legislation of a Member State expressly or by implication provides that accidents at work or occupational diseases which have occurred or 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.

2. In the Federal Republic of Germany Article 581 (3) of the Reichsversicherungsordnung (National Social Insurance Regulations) (hereinafter referred to as the RVO) (as amended by the UVNG of 30 April 1963 (BGBI. I, p. 241)) provides for the granting of an invalidity pension of two-thirds of the annual salary (Vollrente) if a worker is completely disabled as a result of sustaining an accident at work and, if his capacity for work is reduced by at least 20 % as a result of such an accident, for the granting of a proportional pension or partial pension (Teilrente) corresponding to the degree of incapacity. According to the first sentence of Article 581 (3) the injured person whose capacity for work has been reduced as a result of more than one accident at work shall receive an invalidity pension in respect of each such accident, including any which occurred previously, provided that the reduced capacity for work caused by the individual accidents at work amounts in the aggregate to not less than 20 %. According to the second sentence of Article 581 (3) the effects of an accident at work are however only to be taken into consideration if they caused a reduction in capacity for work af at least 10 %. Under Article 548 of the RVO only accidents insured against under the RVO may be treated as accidents at work within the meaning of Article 581 (3) of the RVO.

3. In Case 173/78 the plaintiff in the main action, Mr Villano, an Italian national resident in Italy, sustained an accident at work on 6 September 1969 in the Federal Republic of Germany. As a result of that accident the defendant in the main action paid the plaintiff as from 9 March 1970 a provisional pension equivalent to 20 % of the pension at the full rate. That pension was discontinued at the end of November 1970 on the ground that his degree of incapacity was less than the minimum of 20 % prescribed by German law in order to substantiate a claim to receive an invalidity pension.

4. In Case 174/78 the plaintiff in the main action, Mr Barion, an Italian national resident in Italy, sustained an accident at work in 1942 in territory which at the time was part of the German Reich and is now part of the Federal Republic of Germany. As a result of that accident the defendant in the main action granted him a pension equivalent to 25 % of the full pension.

5. The Bundessozialgericht before which the two cases were brought referred, by separate orders, the following question to the Court for a preliminary ruling:

II —. Written observations

III —. Oral Procedure

1. By 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:

2. This 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.

3. Article 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.

4. The 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.

5. It is however impossible to accept that argument.

6. The 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.

7. The 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.

8. The costs incurred by the Italian Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

9. As 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: