61993J0482

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1. Social security for migrant workers ° Sickness insurance ° Conditions for the granting of benefits ° Non-applicability under Community rules of a condition laid down by a Member State relating to the origin of the illness ° Scope

(Council Regulation No 1408/71, Art. 35(3))

2. Social security for migrant workers ° Sickness insurance ° Conditions for the granting of benefits ° Legislation of the competent Member State making the grant of benefits subject to the condition that the person insured was not unfit for work at the time when he became insured ° Obligation to take into account periods of insurance completed under the legislation of another Member State ° Worker not insured for a short period owing to transfer of residence from one Member State to another ° Irrelevant

(EC Treaty, Art. 51; Council Regulation No 1408/71, Art. 18(1))

1. Article 35(3) of Regulation No 1408/71, which provides that where, under the legislation of a Member State, the granting of sickness benefits is conditional upon the origin of the illness, that condition is not to apply to a worker to whom the Regulation applies, regardless of the Member State in whose territory he resides, does not apply to a situation in which the applicable legislation precludes, in whole or in part, the grant of sickness benefits if the worker was already unfit for work at the time when he became insured under the scheme which it establishes.

2. Article 18(1) of Regulation No 1408/71 must, in the light of the objective laid down by Article 51 of the Treaty, be interpreted as meaning that, where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it administers.

The fact that, having transferred his residence from one Member State to another Member State, the person concerned was for a short period neither employed nor registered as seeking employment in the latter State does not interrupt the continuity of the insurance periods completed by that person or preclude application of the rule on the aggregation of insurance periods.

It is inherent in the normal exercise of the right to exercise freedom of movement for a migrant worker to be out of work for a short period during which he is physically moving from one Member State to another.

In Case C-482/93,

REFERENCE to the Court under Article 177 of the EC Treaty by the Arrondissementsrechtbank, Amsterdam (Netherlands), for a preliminary ruling in the proceedings pending before that court between

S.E. Klaus

and

Bestuur van de Nieuwe Algemene Bedrijfsvereniging

on the interpretation of Article 25(2), Article 35(3) and Article 71(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Chamber, J.C. Moitinho de Almeida, C. Gulmann, P. Jann and L. Sevón, Judges,

Advocate General: A.M. La Pergola,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the Bestuur van de Nieuwe Algemene Bedrijfsvereniging, by C.R.J.A.M. Brent, Director of the Administration and Legal Affairs Section of the "Gemeenschappelijk Administratiekantoor", acting as Agent,

° the Commission of the European Communities, by M. Patakia and B.J. Drijber, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Bestuur van de Nieuwe Algemene Bedrijfsvereniging, represented by F.W.M. Keunen, Legal Assistant to the "Gemeenschappelijk Administratiekantoor", and of the Commission, represented by B.J. Drijber, at the hearing on 4 May 1995,

after hearing the Opinion of the Advocate General at the sitting on 27 June 1995,

gives the following

Judgment

1 By order of 15 October 1992, received at the Court on 28 December 1993, the Arrondissementsrechtbank, Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions concerning the interpretation of Article 25(2), Article 35(3) and Article 71(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter "Regulation No 1408/71").

2 Those questions were raised in proceedings between Mrs Klaus and the Nieuwe Algemene Bedrijfsvereniging (the New General Occupations and Trades Association, hereinafter "the NAB") concerning the grant of cash sickness benefits.

3 From December 1985 until July 1987, Mrs Klaus, a Netherlands national, worked as a nurse in the Netherlands, on which basis she was insured under the Ziektewet (Sickness Law, hereinafter "the ZW"). In July 1987, she ceased work on account of back complaint, whereupon her insurance cover under the ZW came to an end.

4 In June 1988, after attending a course in tourism management for eight months, Mrs Klaus went to Spain to work as a hostess and public relations assistant.

5 In December 1988, she returned to the Netherlands where she had a number of jobs over a brief period.

6 From May 1989 until October 1989, Mrs Klaus again worked in Spain as a hostess and public relations assistant. She then returned to the Netherlands and from 20 October 1989 she obtained work through the employment agency Randstad Industrie BV. The national case-file made available to the Court discloses that, although Mrs Klaus was not working for a period of several days between the time when she stopped working in Spain and the time when she commenced her temporary work, she made no application for unemployment benefit to either the competent Spanish body or its Netherlands counterpart.

7 The temporary employment agency mentioned above obtained a catering job for Mrs Klaus in a works canteen in the Netherlands. However, on 7 November 1989, she had to give up that job because of back pain.

8 An expert' s report, dated 16 September 1991, which was produced before the national court during the main proceedings, shows that as a result of abnormalities in her spinal column, Mrs Klaus was already unfit to work on 20 October 1989, the date on which her insurance cover under the ZW resumed effect. It is also reported that Mrs Klaus first had back pains in December 1986 and that they became worse during the period she spent working in Spain in 1989.

9 By letter of 24 April 1990, the NAB, which is responsible for implementing the sickness insurance scheme, informed Mrs Klaus that it would not grant her sickness benefit under the ZW with effect from 7 November 1989 because at the time when her sickness insurance cover became effective on 20 October 1989 she was already unfit for work.

10 The ZW is the basis of the general sickness insurance scheme in the Netherlands. In order to qualify for cash sickness benefits under that legislation, the claimant must be unfit for work (as a rule, this means unfit for the work in which he was last engaged) on account of illness (Article 19). In certain circumstances, sickness insurance cover may be maintained after the end of the insurance period, as if the beneficiary were still insured, if incapacity for work occurs within a short period (one month or eight days, depending on the case) following termination of the insurance cover (Article 46).

11 The occupational insurance association may refuse sickness benefit, in whole or in part, if the person concerned was already unfit for work at the time when the insurance cover became effective (Article 44(1), opening words and subparagraph 1(1)). The aim of that rule is to prevent abuse, since Netherlands legislation on incapacity for work makes no provision for conducting a medical examination enabling certain risks to be excluded from the insurance cover when it becomes effective.

12 The NAB relied on those provisions in refusing, by decision of 24 April 1990, to grant Mrs Klaus sickness benefits under the ZW.

13 Mrs Klaus appealed against that decision to the Arrondissementsrechtbank, Amsterdam, which took the view that the dispute raised issues concerning the interpretation of Article 25(2), Article 35(3) and Article 71(1) of Regulation No 1408/71.

14 Article 25(2) of Regulation No 1408/71 provides that: "A totally unemployed person who was formerly employed and to whom the provisions of Article 71(1)((a)(ii) or the first sentence of Article 71(1)(b)(ii) apply, shall receive (sickness) benefits in kind and in cash in accordance with the provisions of the legislation (and at the expense) of the Member State in whose territory he resides, as though he had been subject to that legislation during his last employment ...". That provision applies to totally unemployed persons who, during their last employment, were residing in the territory of a Member State other than the competent State.

15 The national court does not rule out the possibility that just before commencing her last employment in the Netherlands on 20 October 1989, Mrs Klaus was for a number of days an unemployed person (other than a frontier worker) in Spain who had retained her residence in the Netherlands and she was therefore covered by the first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71.

16 Article 35(3) of Regulation No 1408/71 provides in fact that: "Where, under the legislation of a Member State, the granting of (sickness) benefits is conditional upon the origin of the illness, that condition shall apply neither to employed or self-employed persons nor to the members of their families to whom this Regulation applies, regardless of the Member State in whose territory they reside."

17 The Arrondissementsrechtbank, Amsterdam, therefore decided to refer the following questions to the Court of Justice for a preliminary ruling:

"1. Having regard inter alia to Article 48 of the EEC Treaty, must Article 35(3) of Regulation No 1408/71 be interpreted to the effect that sickness benefits cannot be refused, pursuant to a national risk-selection provision such as that contained in Article 44(1)(a)(1) of the ZW, to a worker who (almost immediately) following a period in which he became covered by the legislation on sickness benefit, is insured in the Member State whose national legislation contains a risk-selection provision like that mentioned above?

2. If the answer to Question 1 is in the affirmative, does that interpretation also apply where the unfitness for work which led to the application of a national risk-selection provision arose during a period of insurance against the financial consequences of sickness under the Member State' s legislation of which the risk-selection provision also forms part?

3. Having regard to Article 25(2) of Regulation No 1408/71, does it make any difference to the way the first question is answered whether a worker, before working as an employed person in the competent Member State, was in the situation referred to in Article 71(1)(a)(ii) or Article 71(1)(b)(ii) of Regulation No 1408/71?

4. If Question 3 is answered in the affirmative, must Article 25(2) of Regulation No 1408/71 be interpreted as meaning that the workers to whom this provision applies must be taken to include a worker who meets all the conditions set out in Article 71(1)(a)(ii) or Article 71(1)(b)(ii) of Regulation No 1408/71, even where he has never received unemployment benefit under those provisions from the institution in his country of residence because no such application was ever made?"

18 By its first question the national court is essentially asking whether Article 35(3) of Regulation No 1408/71 applies to the legislation of a Member State which precludes, in whole or in part, the grant of sickness benefits if the worker concerned was already unfit for work at the time when he became insured under the scheme which it establishes.

19 Suffice it to point out that Article 35(3) of Regulation No 1408/71 concerns the situation in which, pursuant to the legislation of the competent State, a condition relating to the origin of the worker' s illness is relied on against him or a member of his family. It does not, however, concern a situation in which, as in this case, the applicable legislation makes entitlement to sickness benefits subject to the condition that no actual incapacity for work must have existed at the time when the worker became insured.

20 Consequently, the first question must be answered in the negative. That being so, there is no need to reply to the second question. However, since it is necessary to arrive at an interpretation of Community law which will be helpful to the national court, the following considerations should also be mentioned.

21 Article 51 of the Treaty entrusted the Council with the task of adopting such measures in the field of social security as are necessary to provide freedom of movement for workers. The provisions of Regulation No 1408/71 must therefore be interpreted in the light of that objective (see, in particular, the judgment in Case C-406/93 Reichling v INAMI [1994] ECR I-4061, paragraph 21).

22 One of those provisions which should be noted is Article 18(1), which provides that: "The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as if they were periods completed under the legislation which it administers."

23 As the Commission pointed out, in the present case that provision prevents the competent institution from treating the effective date of the insurance cover under the legislation which it administers as the starting point for the periods of insurance which are to be taken into account for the purposes of entitlement to sickness benefits.

24 Consequently, where the legislation of the competent Member State makes the grant of cash sickness benefits subject to the condition that no incapacity for work must have existed at the time when the worker concerned became insured, it is for the competent institution, in accordance with Article 18(1) of Regulation No 1408/71, to take account also of periods of insurance completed by that person under the legislation of another Member State, as if they were periods completed under the legislation which it administers.

25 According to the order for reference, the third and fourth questions were submitted to cover the hypothesis that for a few days before 20 October 1989 the plaintiff was in the situation to which the first sentence of Article 71(1)(b)(ii) of Regulation No 1408/71 applies.

26 As to that point, it is sufficient to note that the provisions of Regulation No 1408/71 concerning unemployed persons who were formerly employed or self-employed, particularly those in Article 71, do not apply in the present case, since Mrs Klaus had not registered anywhere as seeking work.

27 The third and fourth questions may, however, be taken as asking whether the lapse of a few days between Mrs Klaus' return to her country of origin and her resumption of employment in that State has the effect of interrupting the continuity of the periods of insurance which may be taken into account under the Community aggregation rules.

28 As the Advocate General notes at point 13 of his Opinion, the fact that a migrant worker may be out of work for a short period during which he is physically moving from one Member State to another is inherent in the normal exercise of the right to exercise freedom of movement.

29 Furthermore, in the present case the representative of the NAB informed the Court at the hearing that if all of Mrs Klaus' working life had been spent in the Netherlands, that interlude would not have been used as a ground for refusing the benefit sought.

30 In the light of the foregoing, the reply to the questions referred by the national court must be that Article 18(1) of Regulation No 1408/71 is to be interpreted as meaning that, where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it administers. The fact that, having transferred his residence from one Member State to another Member State, the person concerned was for a short period neither employed nor registered as seeking employment in the latter State does not interrupt the continuity of the insurance periods completed by that person or preclude application of the aggregation rule laid down by Article 18(1) of Regulation No 1408/71.

Costs

31 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Fifth Chamber),

in answer to the questions referred to it by the Arrondissementsrechtbank, Amsterdam, by order of 15 October 1992, hereby rules:

1. Article 35(3) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Regulation (EEC) No 2001/83 of 2 June 1983, does not apply to the legislation of a Member State which precludes, in whole or in part, the grant of sickness benefits if the worker concerned was already unfit for work at the time when he became insured under the scheme which it establishes.

2. Article 18(1) of Regulation No 1408/71 is to be interpreted as meaning that, where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it administers.

3. The fact that, having transferred his residence from one Member State to another Member State, the person concerned was for a short period neither employed nor registered as seeking employment in the latter State does not interrupt the continuity of the insurance periods completed by that person or preclude application of the aggregation rule laid down by Article 18(1) of Regulation No 1408/71.