Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The question underlying the main proceedings relating to the case which I am to consider today is which body is the competent institution for the purpose of the award of benefits in respect of an occupational disease to an employed person who was exposed to the same risks of occupational disease in more than one Member State.

The following facts emerge from the request made by the cour d'appel de Douai [Court of Appeal, Douai] for a preliminary ruling and from the documents which it has forwarded to the Court:

1. Mr Deghillage, a Belgian national who started working in 1937, worked from March 1942 to December 1948 in a factory at Feignies (France) where he was employed as a trimmer. From January 1949 to April 1958 he was employed at Jemappes (Belgium) in work in which he had to use pneumatic power tools and welding torches. Finally, from 1958 until 30 November 1981 he resumed his work as a trimmer at Feignies in the same factory in which he had been employed until December 1948.

2. On 14 January 1982 Mr Deghillage submitted an application for benefits in respect of an occupational disease to the Fonds des maladies professionnelles, Bruxelles [Occupational Diseases Fund, Brussels, hereinafter referred to as the Belgian Fund].

3. On 5 April 1983 the Belgian Fund forwarded the claim, together with the report and medical certificate of 12 December 1981 establishing that Mr Deghillage was suffering from an occupational disease (deafness induced by trauma), to the Centre de Sécurité Sociale des Travailleurs Migrants [Social Security Centre for Migrant Workers], Paris, which in turn forwarded^ the documents on 28 April 1983 to the Caisse primaire d'assurance maladie de Maubeuge [Local Sickness Insurance Fund, Maubeuge, hereinafter referred to as the French Fund] requesting it to determine whether the nature of the work carried out by Mr Deghillage in France was capable of causing the complaint diagnosed.

4. The French Fund rejected the application on the ground that, although the work carried out by Mr Deghillage was capable of causing his occupational disease, it was unable to reach the conclusion that he was suffering from one of the occupational diseases set out in Table No 42 since the second audiogram had not been conducted within the prescribed period (three weeks to a year, calculated from the time when the person concerned ceased to be exposed to the harmful noise).

5. By decision of 27 October 1983 the Commission des recours gracieux [Appeals Board] upheld the French Fund's decision.

6. An appeal against that decision was dismissed by the commission de première instance de sécurité sociale [Social Security First Instance Appeals Board], Valenciennes, by decision of 17 April 1984.

7. In the course of an appeal brought against the latter decision, the cour d'appel de Douai, by judgment of 21 December 1984, suspended the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

I shall commence by recapitulating the principal dates.

1. Since on 30 November 1981 Mr Deghillage ceased to carry out work involving the risk of occupational disease, a second audiogram should have been carried out under French law in the period between 21 December 1981 and 30 November 1982. The audograms undergone by Mr Deghillage on 12 September 1980, 3 December 1981 and 19 January 1984 were not carried out within that period. When he submitted his application for benefits to the Belgian Fund on 14 January 1982, the period for carrying out the second audiogram had not yet expired. However, it had expired — by more than four months — when the Belgian Fund forwarded the claim for a pension to the French institution on 5 April 1983.

2. As regards the legal aspects of the case, the views expressed by the Commission and, in the course of the oral procedure, by the Government of the French Republic are largely in agreement.

3. The solution suggested by the Government of the French Republic and the Commission to the effect that the case should be referred back to the Belgian Fund may admittedly be appropriate on the basis of a literal interpretation of Regulation No 1408/71. However, I consider that, in this case, the Court should not confine itself to a purely literal interpretation, since the end result would not be compatible either with the meaning and purpose of Regulation No 1408/71 or with the requirements of effective legal protection. It is self-evident, without any further explanation being called for, that it would be manifestly unjust to refer Mr Deghillage's case back to the Belgian Fund, since it has already taken thirteen months to adopt an incorrect onepage decision and a further five weeks to discharge its duty to forward the claim without delay to the French institution.

In the light of the foregoing I propose that the Court of Justice should answer the question referred to it for a preliminary ruling by the cour d'appel de Douai as follows:

Article 57 (2) of Regulation No 1408/71 in conjunction with Article 86 thereof should be interpreted as follows:

Where a person who has contracted an occupational disease has pursued an activity capable of causing that disease, according to the legislation of two or more Member States, the benefits to which he is entitled are to be awarded under the legislation of the last of those States, on the understanding that it is sufficient if the occupational disease was diagnosed for the first time in another Member State in accordance with its legislation.

In such a case, it does not_matter that the institution to which the claim for benefits was first submitted did not, contrary to Article 86 of Regulation No 1408/71, forward the claim without delay to the competent institution of the other Member State, with the result that the claimant was unable to comply with the period prescribed for the first diagnosis of his occupational disease by the law of the competent Member State.

1 Translated from the German.

2 Table No 42 (noise-induced occupational diseases) annexed to Decree No 46-2959 of 31 December 1946 implementing the provisions of Book IV of the Social Security Code (as amended by Decree No 81-507 of 4 May 1981).

3 Regulation (EEC) No 1408/71 of lhe Council of 14 June 1971 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).

4 Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing 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 1972(1), p. 159).

5 See judgment of 22 May 1980 in Case 143/79, Walsh v National Insurance Officer [1980] ECR 1639.

6 See, for example, the judgment of 11 April 1983 in Case 76/72 Michel S. v Fonds national de reclassement social des handicapés [1973] ECR 457, and the judgment of 11 July 1985 in Case 137/84 Ministère Public v Mutsch [1985] ECR 2681.