Opinion of Mr Advocate General Lenz delivered on 23 January 1986. # Alexandre Deghillage v Caisse primaire d'assurance maladie de Maubeuge. # Reference for a preliminary ruling: Cour d'appel de Douai - France. # Social security - Recognition of an occupational disease. # Case 28/85.

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.

Since 1 December 1981 Mr Deghillage has no longer been in employment.

On 12 September 1980 Mr Deghillage underwent an audiogram to ascertain whether he was suffering from defective hearing. A second audiogram was carried out on 3 December 1981 and a third on 19 January 1984.

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’].

By a decision of 28 February 1983 the Belgian Fund rejected that application as ‘inadmissible’ on the following grounds:

‘The requirements laid down in the international agreements relating to social security for migrant workers have not been fulfilled. The person concerned was most recently exposed to the risk of occupational disease in the territory of another Member State of the EEC (Article 57 (1) of Regulation (EEC) No 1408/71).’

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 ( 1 ) 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:

‘Pursuant to Article 86 of Regulation (EEC) No 1408/71, what consequences must be drawn from the fact that the Belgian institution to which the claim was submitted was late in forwarding it to the French institution?’

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.

Both attribute Mr Deghillage's inability to undergo the second audiogram within the period prescribed by French law to the fact that the Belgian Fund was late in forwarding the application to the French institution.

In their view, according to Article 86 of Regulation No 1408/71 ( 2 ) it was permissible for Mr Deghillage to submit his claim to the Belgian Fund whereupon the Belgian Fund should have forwarded it without delay to the French institution. However, no penalty attaches to failure to comply with that obligation.

They maintain that under Article 86, Mr Deghillage's claim is to be regarded as having been submitted in time even though it was late in being forwarded. However, no further consequences can be inferred from Article 86 since it is a purely procedural provision, which must be distinguished from the substantive rules relating to the recognition of occupational diseases.

Since the period prescribed in the French legislation for carrying out the second audiogram which is a requirement for the recognition of damage to hearing was not complied with, they argue that Mr Deghillage is no longer entitled to benefits under French law in respect of his occupational disease.

Furthermore, the Commission urges the Court to provide the national court with additional indications for the resolution of the dispute going beyond the wording of the question. In view of its continuing concern to keep national courts fully informed of the scope of Community law, the Court may — if necessary by supplementing the wording of the question — point to other provisions which enable the problem to be resolved.

To that end, the Commission considers two possibilities:

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.

Since Mr Deghillage spent in France 20 of the 30 years in which he was engaged in hazardous work, the existence of a substantive obligation on the part of the French institution to pay the contested benefits cannot seriously be disputed. Moreover, it is not apparent why the French institution should derive from the wrongful conduct of the Belgian Fund the advantage of not having to pay benefits which it is under a substantive duty to grant.

In seeking an appropriate solution to this legal issue the aim pursued by the Community legislature in adopting Regulation No 1408/71 must not be left out of account, namely ‘guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence’.

I shall therefore consider, in the light of those previous decisions, whether Article 57 (2) of Regulation No 1408/71 can be applied to these proceedings.

Article 57 (2) of Regulation No 1408/71 reads as follows:

‘If under the legislation of a Member State the granting of benefits in respect of an occupational disease is subject to the condition that the disease in question was first diagnosed within its territory, such condition shall be deemed to be fulfilled if the disease was first diagnosed in the territory of another Member State.’

I take this provision to contain a further procedural advantage for the claimaint: the institution of the Member State which is under a duty to pay the benefits must recognize the first diagnosis of an occupational disease as valid even where that diagnosis is made in the territory of another Member State. In that respect Article 57 (2) derogates from Article 57 (1), which provides that benefits are to be ‘awarded exclusively under the legislation of the last of these States ’. That may indeed be so, in general terms, as regards the evaluation of the amount of the benefit and the procedure for granting it, but it does not apply as regards the first diagnosis of an occupational disease.

If, therefore, the institution required to pay the benefits must recognize a diagnosis made in another Member State that the person concerned is suffering from an occupational disease, that must also be true where that diagnosis was not made in accordance with the procedural requirements of the Member State required to pay the benefits. In fact, it is conceivable that when the occupational disease is diagnosed, it has not yet been established which Member State is under a duty to pay the benefits. Moreover, the doctor called upon to diagnose the disease cannot be required to know the procedural rules of other Member States' social security legislation.

Consequently, Article 57 (2) of Regulation No 1408/71 must be interpreted as meaning that where there is a requirement in the legislation of a Member State making the award of benefits in respect of an occupational disease subject to the disease having been diagnosed for the first time within the territory of that Member State, that requirement is deemed to be fulfilled even if the disease in question was diagnosed in the territory of another Member State and even if that diagnosis was made in accordance with the procedural rules ofthat Member State.

The French Centre de sécurité sociale de travailleurs migrants also seems to have acted on that assumption when in its — admittedly brief — letter of 28 April 1983 to the French Fund it asked the latter simply to ascertain whether the work done by Mr Deghillage in France was capable of causing the impairment diagnosed in his case. Thus the French Fund was not asked to go through the whole procedure for establishing that the claimant was suffering from an occupational disease but merely to state its views on one particular aspect of the case.

However, it should also be mentioned that it is not altogether clear whether under French legislation a condition for the award of benefits in respect of an occupational disease is that the disease must have been diagnosed for the first time in the territory of the French Republic. Admittedly, certain provisions of the French Social Security Code seem to suggest that this is the case, but that is a matter which may have to be resolved by the national court.

That problem does not however need to be resolved in this case. If the diagnosis of an occupational disease made in accordance with the procedural rules of the country of residence of the doctor suffices even where the legislation of the Member State which is under a duty to pay the benefits requires that diagnosis to have been made in its territory, then a fortiori that first diagnosis must suffice where no such requirement is expressly laid down by the Member State which is under a duty to pay the benefits. Here too, the basic consideration must apply that the doctor who first diagnoses an occupational disease cannot be expected to know the procedural rules of other Member States' social security legislation.

Lastly, it should also be mentioned for the sake of clarity that the second audiogram provided for in Table No 42 appended to Decree No 46-2959, as amended by Decree No 81-507, must still be regarded as part of the first diagnosis of an occupational disease for the purposes of Article 57 (2) of Regulation No 1408/71, since that regulation draws a distinction between diagnosis of an occupational disease for the first time and aggravation of the worker's condition (Article 60).