ECJ 1. The factor which determines whether Article 71 of Regulation No 1408/71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment. The first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71 for that reason does not apply to a worker who moved with his family to a Member State where he resided and worked and where he suffered incapacity for work followed by invalidity, and who subsequently moved to another Member State without working there, before finally taking up residence in a third Member State, where, owing to his invalidity, he does not work or register for employment.
Such a worker is consequently not covered by Article 39(5) of that regulation and must come within the general rule under Article 39(1), which provides that, with regard to invalidity benefit, the competent Member State is the State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred, in this case the State of last employment.
2. It follows from Article 86 of Regulation No 1408/71 and from Article 35 of Regulation No 574/72 that when a claimant submits a claim for invalidity benefit to the institution of the State of residence, that institution is required to forward it to the institution of the competent Member State, that is to say, the State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred.
On the other hand, and in contrast to the system laid down with respect to other benefits, there is no provision in Regulation No 1408/71 which requires the institutions of the State of residence to pay invalidity benefit to a claimant, even if the competent State is required to make reimbursement, subject to the application of Article 114 of Regulation No 574/72 in the case of a dispute between the relevant institutions. Community law, however, does not in any way prohibit the institution of the State of residence from assisting a claimant in the submission of a claim to the institution of the competent State.
Citations:
C-287/92, [1994] EUECJ C-287/92
Links:
Jurisdiction:
European
Benefits
Updated: 03 June 2022; Ref: scu.160953
