61979J0150

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - LEGISLATION OF A MEMBER STATE - CONCEPT - BELGIAN LAW ON SOCIAL SECURITY FOR WORKERS FROM THE FORMER BELGIAN CONGO AND RUANDA-URUNDI - INCLUSION - APPLICATION TO WORKERS WHO ARE NATIONALS OF OTHER MEMBER STATES WITHOUT CONDITIONS OF NATIONALITY OR RESIDENCE

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 1(J ), 2(1 ), 3(1 ) AND 10(1 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SPECIAL APPLICATION PROCEDURES FOR LEGISLATION OF CERTAIN MEMBER STATES - APPLICATION BY ANALOGY - NOT PERMISSIBLE

( REGULATION NO 1408/71 OF THE COUNCIL , ANNEX V )

1 . THE BELGIAN LAW OF 16 JUNE 1960 PLACING UNDER THE CONTROL AND GUARANTEE OF THE BELGIAN STATE THE INSTITUTIONS ADMINISTERING SOCIAL SECURITY FOR WORKERS FROM THE BELGIAN CONGO AND RUANDA-URUNDI AND PROVIDING A GUARANTEE BY THE BELGIAN STATE OF SOCIAL SECURITY BENEFITS IN FAVOUR OF SUCH PERSONS , CONSTITUTES ' ' LEGISLATION OF A MEMBER STATE ' ' WITHIN THE MEANING OF REGULATION NO 1408/71 . ACCORDINGLY THE BELGIAN STATE CANNOT IMPOSE CONDITIONS OF NATIONALITY OR RESIDENCE ON WORKERS WHO ARE NATIONALS OF THE MEMBER STATES OF THE COMMUNITY AND WHO COME WITHIN THE SPHERE OF APPLICATION OF THE SAID REGULATION FOR THE GRANT OF THE SOCIAL SECURITY BENEFITS PROVIDED FOR BY THAT LAW .

2 . ANNEX V TO REGULATION NO 1408/71 CONTAINS A NUMBER OF PROVISIONS CONTAINING SPECIAL APPLICATION PROCEDURES WHICH REFER TO VARIOUS SPECIAL SITUATIONS . SUCH PROCEDURES MAY ONLY DERIVE FROM AN EXPRESS PROVISION IN THE RULES IN QUESTION AND CANNOT BE EXTENDED TO SITUATIONS OTHER THAN THOSE EXPRESSLY ENVISAGED .

IN CASE 150/79

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JEAN AMPHOUX , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

KINGDOM OF BELGIUM , REPRESENTED BY THE MINISTER FOR FOREIGN AFFAIRS , WHOSE AGENT IS ROBERT HOEBAER , DIRECTOR OF EXTERNAL TRADE AND DEVELOPMENT COOPERATION AT THE MINISTRY FOR FOREIGN AFFAIRS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY , RESIDENCE CHAMPAGNE , 4 RUE DES GIRONDINS ,

DEFENDANT ,

APPLICATION BY THE COMMISSION TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 5 , 48 AND 51 OF THE TREATY , INASMUCH AS THE BELGIAN PRACTICE IS TO IMPOSE CONDITIONS AS TO NATIONALITY OR RESIDENCE ON WORKERS WHO ARE NATIONALS OF MEMBER STATES AND WHO COME WITHIN THE SPHERE OF APPLICATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) FOR THE GRANT OF THE SOCIAL SECURITY BENEFITS PROVIDED FOR BY THE BELGIAN LAW OF 16 JUNE 1960 ( MONITEUR BELGE OF 30 JUNE 1960 ) PLACING UNDER THE CONTROL AND GUARANTEE OF THE BELGIAN STATE THE INSTITUTIONS ADMINISTERING SOCIAL SECURITY FOR WORKERS FROM THE CONGO AND RUANDA-URUNDI AND PROVIDING A GUARANTEE OF THE BENEFITS PROVIDED IN FAVOUR OF SUCH PERSONS PRIOR TO 1 JULY 1960 ,

1 BY APPLICATION DATED 28 SEPTEMBER 1979 THE COMMISSION BROUGHT AN ACTION PURSUANT TO ARTICLE 169 OF THE EEC TREATY SEEKING A DECLARATION THAT THE KINGDOM OF BELGIUM , BY IMPOSING CONDITIONS OF NATIONALITY OR RESIDENCE ON WORKERS WHO ARE NATIONALS OF THE MEMBER STATES OF THE COMMUNITY AND WHO COME WITHIN THE SPHERE OF APPLICATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) FOR THE GRANT OF THE SOCIAL SECURITY BENEFITS PROVIDED FOR BY THE BELGIAN LAW OF 16 JUNE 1960 , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 5 , 48 AND 51 OF THE TREATY AND UNDER COMMUNITY RULES .

2 THE LAW OF 16 JUNE 1960 ' ' PLACING UNDER THE CONTROL AND GUARANTEE OF THE BELGIAN STATE THE INSTITUTIONS ADMINISTERING SOCIAL SECURITY FOR WORKERS FROM THE BELGIAN CONGO AND RUANDA-URUNDI AND PROVIDING A GUARANTEE BY THE BELGIAN STATE OF SOCIAL SECURITY BENEFITS IN FAVOUR OF SUCH PERSONS ' ' ( MONITEUR BELGE , 30 JUNE 1960 ) WAS ADOPTED WHEN THOSE TERRITORIES GAINED THEIR INDEPENDENCE ON 1 JULY 1960 IN ORDER TO ENSURE THE CONTINUITY OF THE COLONIAL SOCIAL SECURITY SCHEME , WHICH WAS BASED ON COLONIAL DECREES SUBSEQUENTLY REPEALED BY THE NEW INDEPENDENT STATES . THE LAW , WHICH REFERS BACK TO THE PROVISIONS OF THE COLONIAL DECREES CONCERNING THE GRANT OF BENEFITS , INCLUDING CONDITIONS OF NATIONALITY AND OF RESIDENCE , ITSELF CONTAINS ADDITIONAL PROVISIONS WHICH RESTRICT THE GUARANTEE GIVEN TO BENEFICIARIES WHO ARE NOT OF BELGIAN NATIONALITY . THE LAW WAS AMENDED A NUMBER OF TIMES TO PROVIDE , INTER ALIA , EXTRA BENEFITS AND TO VARY THEM IN ACCORDANCE WITH FLUCTUATIONS OF THE BELGIAN CONSUMER PRICE-INDEX , AND THOSE ADVANTAGES WERE GRANTED EXCLUSIVELY TO PERSONS ENTITLED TO THE BENEFITS WHO WERE OF BELGIAN NATIONALITY OR WHO RESIDED IN BELGIUM .

3 THE BELGIAN GOVERNMENT DOES NOT DISPUTE THAT THOSE CONDITIONS CONCERNING NATIONALITY AND RESIDENCE ARE IMPOSED BY THE BELGIAN AUTHORITIES ON ALL PERSONS ENTITLED TO SUCH BENEFITS , INCLUDING NATIONALS OF THE MEMBER STATES OF THE COMMUNITY . IT MAINTAINS , HOWEVER , THAT THE LAW OF 16 JUNE 1960 IS NOT INCLUDED IN THE EXPRESSION ' ' LEGISLATION OF ONE OR MORE MEMBER STATES ' ' WHICH APPEARS IN ARTICLE 2 ( 1 ) OF THE REGULATION AND THAT , EVEN IF IT WERE , THE NON-APPLICATION OF THE REGULATION IS PERMITTED , BY ANALOGY WITH THE DEROGATION PROVIDED FOR IN FAVOUR OF THE FEDERAL REPUBLIC OF GERMANY IN PARAGRAPH C 1 ( B ) OF ANNEX V TO THE REGULATION .

4 IN THAT REGARD , IN GIVING A PRELIMINARY RULING ON A QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), BRUSSELS , CONCERNING A CLAUSE RELATING TO RESIDENCE CONTAINED IN ONE OF THE COLONIAL DECREES , THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 31 MARCH 1977 IN CASE 87/76 , BOZZONE V OFFICE DE SECURITE SOCIALE D ' OUTRE-MER ( 1977 ) ECR 687 , THAT ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS APPLYING TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE INSURANCE SCHEME INSTITUTED BY THE DECREE IN QUESTION , THE CONTINUITY OF WHICH IS GUARANTEED BY THE BELGIAN LAW . IN FINDING THAT THOSE PROVISIONS AS A WHOLE CONSTITUTE ' ' NATIONAL LEGISLATION ' ' WITHIN THE MEANING OF THE REGULATION , THE COURT PROCEEDED UPON THE DEFINITION OF THAT TERM WHICH IS TO BE FOUND IN ARTICLE 1 ( J ) OF THE REGULATION AND DECLARED THAT : ' ' THIS DEFINITION IS REMARKABLE FOR ITS BREADTH , INCLUDING AS IT DOES ALL PROVISIONS LAID DOWN BY LAW , REGULATION AND ADMINISTRATIVE ACTION BY THE MEMBER STATES AND MUST BE TAKEN TO COVER ALL THE NATIONAL MEASURES APPLICABLE IN THIS CASE . ' ' AFTER OBSERVING ALSO THAT NO SPECIAL RULES FOR THE IMPLEMENTATION OF THE LEGISLATION IN QUESTION WERE LAID DOWN IN THE ANNEXES TO THE REGULATION , THE COURT CONCLUDED THAT THE WAIVER OF RESIDENCE CLAUSES PRESCRIBED BY THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 IS APPLICABLE IN THE CIRCUMSTANCES DESCRIBED BY THE COURT MAKING THE REFERENCE .

5 THE REASONING GIVEN BY THE COURT IN THE ABOVE-MENTIONED JUDGMENT APPLIES EQUALLY TO ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 , WHICH PROVIDES THAT :

' ' SUBJECT TO THE SPECIAL PROVISIONS OF THIS REGULATION , PERSONS RESIDENT IN THE TERRITORY OF ONE OF THE MEMBER STATES TO WHOM THIS REGULATION APPLIES SHALL BE SUBJECT TO THE SAME OBLIGATIONS AND ENJOY THE SAME BENEFITS UNDER THE LEGISLATION OF ANY MEMBER STATE AS THE NATIONALS OF THAT STATE . ' '

FOR THE PURPOSES OF THE PRESENT CASE IT IS SUFFICIENT , THEREFORE , TO CONSIDER WHETHER THE ARGUMENTS PRODUCED BY THE BELGIAN GOVERNMENT INTRODUCE ANY NEW FACTOR IN RELATION TO THAT STATEMENT OF THE LAW .

6 IN THE FIRST PLACE , THE BELGIAN GOVERNMENT CLAIMS THAT ARTICLES 48 TO 51 OF THE TREATY HAVE NEVER APPLIED TO THE FORMER BELGIAN COLONIES , WHICH WERE ALSO EXLUDED FROM THE SPHERE OF APPLICATION OF REGULATION NO 3 OF THE COUNCIL OF 16 DECEMBER 1958 ON SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ). IT CONSIDERS IT UNREASONABLE FOR SOCIAL LEGISLATION WHICH HAS BEEN FORMALLY EXCLUDED FROM THE SPHERE OF APPLICATION OF THE TREATY FOR THE WHOLE OF THE PERIOD DURING WHICH THE WORKERS WERE IN FACT SUBJECT TO IT TO BE SUBSEQUENTLY INCLUDED IN THAT SPHERE OF APPLICATION . THE LAW OF 16 JUNE 1960 IS SAID TO BE BASED ON THAT LEGISLATION AND TO DO NO MORE THAN GUARANTEE ENTITLEMENT TO BENEFITS WHICH HAVE BEEN ACQUIRED UNDER THE COLONIAL SCHEME . IT IS , IN FACT , A GESTURE OF GOODWILL ON THE PART OF THE BELGIAN STATE TOWARDS PERSONS FORMERLY EMPLOYED IN THE COLONIES WHICH HAVE BECOME INDEPENDENT . APART FROM A FEW MINOR EXCEPTIONS , THE SCHEME HAS BEEN KEPT INDEPENDENT OF THE GENERAL BELGIAN SOCIAL SECURITY SYSTEM IN THE FORM IN WHICH IT WAS ORGANIZED UNDER THE COLONIAL DECREES .

7 AS TO THAT ARGUMENT OF THE DEFENDANT , IT MUST BE STRESSED THAT THE APPLICATION DOES NOT REFER TO THE COLONIAL SCHEME AS IT OPERATED IN THE BELGIAN COLONIES PRIOR TO THEIR GAINING INDEPENDENCE ON 1 JULY 1960 . THERE IS NO QUESTION BUT THAT THAT SCHEME , REPEALED BY THE NEWLY INDEPENDENT STATES , FELL OUTSIDE THE AMBIT OF THE TREATY AND OF REGULATION NO 3 . THE APPLICATION CONCERNS A SCHEME INTRODUCED BY A BELGIAN LAW AND ADMINISTERED UNDER THE CONTROL OF THE BELGIAN STATE BY A PUBLIC BODY SUBJECT TO BELGIAN LAW THE EFFECTS OF WHICH ARE PRODUCED , IN GENERAL , NOT IN THE FORMER BELGIAN COLONIES BUT PRINCIPALLY IN THE BELGIAN METROPOLITAN TERRITORY . IT FOLLOWS THAT THAT SCHEME IS CAPABLE OF AFFECTING THE MOVEMENT OF WORKERS WITHIN THE COMMUNITY , THE FREEDOM OF WHICH IS ENSURED BY ARTICLES 48 TO 51 OF THE TREATY AND BY COMMUNITY REGULATIONS . FURTHERMORE , THE INDEPENDENT NATURE OF THE PRESENT SCHEME AS OPPOSED TO THE COLONIAL SCHEME IS MADE EVIDENT BY THE FACT THAT , WHILST THE BELGIAN LEGISLATION REFERS TO THE COLONIAL DECREES , IT INCLUDES A LARGE NUMBER OF AMENDMENTS WHICH RELATE BOTH TO THE CONDITIONS OF PAYMENT AND THE BENEFITS THEMSELVES . IN THE CIRCUMSTANCES THE MERE FACT THAT ALL THE PAYMENTS ARE BASED ON PERIODS OF INSURANCE COMPLETED PRIOR TO 1 JULY 1960 OUTSIDE COMMUNITY TERRITORY DOES NOT PREVENT THE COMMUNITY REGULATIONS ON SOCIAL SECURITY FROM APPLYING .

8 THE BELGIAN GOVERNMENT MAINTAINS IN THE ALTERNATIVE THAT THE NON-APPLICATION OF ARTICLE 10 OF REGULATION NO 1408/71 IS PERMITTED BY ANALOGY WITH PARAGRAPH C 1 ( B ) OF ANNEX V THERETO , ACCORDING TO WHICH :

' ' THE PROVISIONS OF ARTICLE 10 OF THE REGULATION SHALL NOT AFFECT THE PROVISIONS UNDER WHICH ACCIDENTS ( AND OCCUPATIONAL DISEASES ) OCCURRING OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , AND PERIODS COMPLETED OUTSIDE THAT TERRITORY , DO NOT GIVE RISE TO PAYMENT OF BENEFITS , OR ONLY GIVE RISE TO PAYMENT OF BENEFITS UNDER CERTAIN CONDITIONS , WHEN THOSE ENTITLED TO THEM RESIDE OUTSIDE THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY . ' '

IT ADDS THAT ALTHOUGH BELGIUM DID NOT SEEK TO HAVE THE LAW OF 16 JUNE 1960 INCLUDED IN ANNEX V THE REASON FOR THAT WAS THAT THE BELGIAN STATE WAS CONVINCED THAT THE BENEFITS IN QUESTION FELL OUTSIDE THE SCOPE OF REGULATION NO 1408/71 .

9 THAT DEFENCE CANNOT BE ACCEPTED EITHER . ANNEX V CONTAINS A NUMBER OF PROVISIONS CONTAINING SPECIAL APPLICATION PROCEDURES WHICH REFER TO VARIOUS SPECIAL SITUATIONS . SUCH PROCEDURES MAY ONLY DERIVE FROM AN EXPRESS PROVISION IN THE RULES IN QUESTION AND CANNOT BE EXTENDED TO SITUATIONS OTHER THAN THOSE EXPRESSLY ENVISAGED .

10 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE KINGDOM OF BELGIUM , BY IMPOSING CONDITIONS OF NATIONALITY OR RESIDENCE ON WORKERS WHO ARE NATIONALS OF THE MEMBER STATES OF THE COMMUNITY AND WHO COME WITHIN THE SPHERE OF APPLICATION OF REGULATION NO 1408/71 FOR THE GRANT OF THE SOCIAL SECURITY BENEFITS PROVIDED FOR BY THE LAW OF 16 JUNE 1960 PLACING UNDER THE CONTROL AND GUARANTEE OF THE BELGIAN STATE THE INSTITUTIONS ADMINISTERING SOCIAL SECURITY FOR WORKERS FROM THE BELGIAN CONGO AND RUANDA-URUNDI AND PROVIDING A GUARANTEE BY THE BELGIAN STATE OF SOCIAL SECURITY BENEFITS IN FAVOUR OF SUCH PERSONS , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE KINGDOM OF BELGIUM HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT THE KINGDOM OF BELGIUM , BY IMPOSING CONDITIONS OF NATIONALITY OR RESIDENCE ON WORKERS WHO ARE NATIONALS OF THE MEMBER STATES OF THE COMMUNITY AND WHO COME WITHIN THE SPHERE OF APPLICATION OF REGULATION NO 1408/71 FOR THE GRANT OF THE SOCIAL SECURITY BENEFITS PROVIDED FOR BY THE LAW OF 16 JUNE 1960 PLACING UNDER THE CONTROL AND GUARANTEE OF THE BELGIAN STATE THE INSTITUTIONS ADMINISTERING SOCIAL SECURITY FOR WORKERS FROM THE BELGIAN CONGO AND RUANDA-URUNDI AND PROVIDING A GUARANTEE BY THE BELGIAN STATE OF SOCIAL SECURITY BENEFITS IN FAVOUR OF SUCH PERSONS , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ;

2.ORDERS THE KINGDOM OF BELGIUM TO PAY THE COSTS .