61975J0103

SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - RETIRED PERSON - BENEFITS WITHIN THE MEANING OF ARTICLE 27 OF REGULATION NO 1408/71 - CONCEPT - VOLUNTARY SICKNESS INSURANCE - CONTRIBUTION - ALLOWANCE TOWARDS - GRANT UNDER THE LEGISLATION OF ANOTHER MEMBER STATE - SAFEGUARD

ARTICLE 27 OF REGULATION NO 1408/71 REFERS ONLY TO SICKNESS OR MATERNITY BENEFITS GRANTED BY THE COMPETENT INSTITUTION OF THE STATE IN WHICH THE RETIRED PERSON RESIDES AFTER THESE RISKS MATERIALIZE , AND CANNOT AFFECT ANY RIGHT OF THE RETIRED PERSON TO RECEIVE , UNDER THE LEGISLATION OF ANOTHER STATE , A BENEFIT OF THE TYPE OF AN ALLOWANCE TOWARDS THE CONTRIBUTION TO A VOLUNTARY SICKNESS INSURANCE .

IN CASE 103/75

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE LANDESSOZIALGERICHT BERLIN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WALTER AULICH , LIVING AT EINDHOVEN ( NETHERLANDS )

AND

BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE , WHOSE REGISTERED OFFICE IS IN BERLIN

ON THE INTERPRETATION OF ARTICLE 27 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ,

1 BY ORDER OF 13 AUGUST 1975 , WHICH REACHED THE COURT OF JUSTICE ON 29 SEPTEMBER 1975 , THE LANDESSOZIALGERICHT , BERLIN , HAS REFERRED TO THE COURT A QUESTION UNDER ARTICLE 177 OF THE TREATY CONCERNING THE INTERPRETATION OF ARTICLE 27 AND OF SECTION H ( 1 ) OF ANNEX V TO REGULATION NO 1408/71 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THE QUESTION WAS RAISED IN CONNEXION WITH A DISPUTE BETWEEN A GERMAN INSURANCE FUND AND A RETIRED PERSON OF GERMAN NATIONALITY WHO RESIDES IN THE NETHERLANDS , WHERE HE RECEIVES AN OLD-AGE PENSION BUT NOT SICKNESS INSURANCE BENEFITS . IT IS CONCERNED WITH THE POINT WHETHER THE PERSON CONCERNED CAN TAKE ADVANTAGE OF PARAGRAPH 381 ( 4 ) OF THE REICHSVERSICHERUNGSORDNUNG IN ORDER TO COMPEL THE GERMAN INSURANCE FUND TO CONTRIBUTE TOWARDS THE PAYMENT OF THE CONTRIBUTION WHICH HE PAYS FOR A VOLUNTARY SICKNESS INSURANCE WHICH HE TOOK OUT WITH A NETHERLANDS INSURER .

3 THE QUESTION IS , ESSENTIALLY , WHETHER ARTICLE 27 OF REGULATION NO 1408/71 OF THE COUNCIL AND SECTION H ( 1 ) ( A ) OF ANNEX V , TAKEN TOGETHER , COULD HAVE AFFECTED ANY RIGHT OF A RETIRED PERSON TO RECEIVE AN ALLOWANCE FROM AN INSURANCE FUND OF A MEMBER STATE , UNDER THE LEGISLATION OF THE LATTER , TOWARDS A VOLUNTARY SICKNESS INSURANCE TAKEN OUT UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IF THE RETIRED PERSON HAS HIS PLACE OF RESIDENCE IN THE LATTER STATE .

4 IN ITS ORIGINAL VERSION , WHICH WAS IN FORCE FROM 1 OCTOBER TO 31 DECEMBER 1972 , ARTICLE 27 PROVIDED AS FOLLOWS :

' A PENSIONER WHO IS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES AND WHO IS ENTITLED TO BENEFITS IN KIND UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY HE RESIDES , TAKING ACCOUNT WHERE APPROPRIATE OF THE PROVISIONS OF ARTICLE 18 AND ANNEX V , SHALL , WITH THE MEMBERS OF HIS FAMILY , RECEIVE SUCH BENEFITS FROM THE INSTITUTION OF THE PLACE OF RESIDENCE AND AT THE EXPENSE OF THAT INSTITUTION AS THOUGH HE WERE A PENSIONER WHOSE PENSION WAS PAYABLE SOLELY UNDER THE LEGISLATION OF THE LATTER STATE . '

ON THE ACCESSION OF THE NEW MEMBER STATES TO THE COMMUNITIES , THIS PASSAGE WAS , UNDER ARTICLE 1 ( 5 ) OF REGULATION NO 2864/72 OF THE COUNCIL ( JO L 306 , P . 1 ) REPLACED BY A NEW ONE , EXCEPT IN RESPECT OF THE NEW MEMBER STATES , IN WHOSE CASE THE APPLICATION OF THE REGULATION WAS POSTPONED UNTIL 1 APRIL 1973 . IN THE CASE OF THE OLD MEMBER STATES , ARTICLE 27 OF REGULATION NO 1408/71 PROVIDED , WITH EFFECT FROM 1 JANUARY 1973 , THAT :

' A PENSIONER WHO IS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES , AMONG WHICH IS THE MEMBER STATE IN WHOSE TERRITORY HE RESIDES , AND WHO IS ENTITLED TO BENEFITS UNDER THE LEGISLATION OF THAT MEMBER STATE , TAKING ACCOUNT WHERE APPROPRIATE OF THE PROVISIONS OF ARTICLE 18 AND ANNEX V , SHALL , WITH THE MEMBERS OF HIS FAMILY , RECEIVE SUCH BENEFITS FROM THE INSTITUTION OF THE PLACE OF RESIDENCE AND AT THE EXPENSE OF THAT INSTITUTION AS THOUGH HE WERE A PENSIONER WHOSE PENSION WAS PAYABLE SOLELY UNDER THE LEGISLATION OF THE LATTER MEMBER STATE . '

PARAGRAPH F 1 ( A ) OF ANNEX V WHICH , UNDER THE ACT OF ACCESSION , BECAME , WITH EFFECT FROM 1 JANUARY 1973 , PARAGRAPH H 1 ( A ) PROVIDES AS FOLLOWS :

' A PERSON RECEIVING AN OLD-AGE PENSION UNDER NETHERLANDS LEGISLATION AND A PENSION UNDER THE LEGISLATION OF ANOTHER MEMBER STATE SHALL , FOR THE PURPOSES OF ARTICLE 27 AND/OR 28 BE CONSIDERED TO BE ENTITLED TO BENEFITS IN KIND IF , TAKING INTO ACCOUNT ARTICLE 9 WHERE APPROPRIATE , HE SATISFIES THE CONDITIONS REQUIRED FOR ENTITLEMENT TO VOLUNTARY SICKNESS INSURANCE FOR ELDERLY PERSONS . '

5 THE EFFECT OF ARTICLE 27 , IN BOTH OF ITS VERSIONS , IS TO PREVENT THE COMPETENT ORGANIZATION IN THE STATE OF RESIDENCE , WHICH IS COMPELLED BY NATIONAL LEGISLATION TO PAY A SICKNESS OR MATERNITY BENEFIT , FROM RELIEVING ITSELF WHOLLY OR IN PART FROM THAT OBLIGATION ON THE GROUND THAT THE PERSON CONCERNED IS ENTITLED TO A BENEFIT UNDER THE LEGISLATION OF ANOTHER MEMBER STATE . IT IS NEVERTHELESS NECESSARY TO CONSIDER WHETHER ARTICLE 27 MAY ALSO HAVE THE EFFECT OF ABOLISHING A RIGHT TO RECEIVE A BENEFIT OF THE KIND IN QUESTION DUE UNDER THE LEGISLATION OF A STATE OTHER THAN THE STATE IN WHICH THE RETIRED PERSON IS RESIDENT .

6 ARTICLE 4 OF REGULATION NO 1408/71 LISTS THE TYPES OF BENEFIT TO WHICH THE REGULATION APPLIES AND LINKS EACH OF THEM TO THE MATERIALIZATION OF A SPECIFIC RISK .

7 ARTICLE 27 FORMS PART OF CHAPTER I OF TITLE III OF THE REGULATION WHICH COMPRISES SPECIAL PROVISIONS RELATING TO SICKNESS AND MATERNITY BENEFITS . ARTICLE 27 CAN , THEREFORE , REFER ONLY TO SICKNESS OR MATERNITY BENEFITS AFTER MATERIALIZATION OF THE RISK INSURED AGAINST . SINCE A BENEFIT OF THE TYPE OF THE ALLOWANCE TOWARDS THE CONTRIBUTION IN DISPUTE IS NOT GRANTED AFTER MATERIALIZATION OF THE RISK DESIGNATED BY THE PERSON ENTITLED , IT CANNOT BE LIMITED OR AFFECTED BY ARTICLE 27 OF REGULATION NO 1408/71 . A DISTINCTION MUST , IN FACT , BE DRAWN BETWEEN THE CONTRIBUTION AND THE BENEFIT : THE FIRST GOVERNS ACQUISITION OF THE RIGHT , THE SECOND ASSUMES THAT THE RIGHT EXISTS . THUS ALLOWANCES , TO THE EXTENT TO WHICH THEY REPRESENT A SHARE IN THE CONTRIBUTION TO SICKNESS INSURANCE , CANNOT CONSTITUTE BENEFITS FROM THAT INSURANCE .

8 THE ANSWER WHICH , IN CONSEQUENCE , MUST BE GIVEN TO THE NATIONAL COURT IS THAT ARTICLE 27 OF REGULATION NO 1408/71 REFERS ONLY TO SICKNESS OR MATERNITY BENEFIT GRANTED BY THE COMPETENT INSTITUTION OF THE STATE IN WHICH THE RETIRED PERSON IS RESIDENT AFTER THOSE RISKS HAVE MATERIALIZED AND CANNOT AFFECT ANY RIGHT OF THE RETIRED PERSON TO RECEIVE UNDER THE LEGISLATION OF OTHER MEMBER STATES A BENEFIT OF THE TYPE OF THE ALLOWANCE TOWARDS THE CONTRIBUTION TO A VOLUNTARY SICKNESS INSURANCE SCHEME .

COSTS

9 THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE LANDESGERICHT , BERLIN , BY ORDER OF 13 AUGUST 1975 HEREBY RULES :

ARTICLE 27 OF REGULATION NO 1408/71 REFERS ONLY TO SICKNESS OR MATERNITY BENEFITS GRANTED BY THE COMPETENT INSTITUTION OF THE STATE IN WHICH THE RETIRED PERSON IS RESIDENT AFTER THESE RISKS MATERIALIZE AND CANNOT AFFECT ANY RIGHT OF THE RETIRED PERSON TO RECEIVE , UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , A BENEFIT OF THE TYPE OF THE ALLOWANCE TOWARDS THE CONTRIBUTION TO A VOLUNTARY SICKNESS INSURANCE SCHEME .