61973J0184

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - INSURANCE AGAINST INCAPACITY TO WORK - BENEFITS - OVERLAPPING - PROHIBITION UNDER NATIONAL LEGISLATION - CHARACTER - PROVISION FOR SUSPENSION OR REDUCTION - APPLICABILITY

( REGULATION NO 3, ARTICLE 11 ( 2 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - NATIONAL LEGISLATIVE PROVISIONS - PROVISIONS FOR SUSPENSION OR REDUCTION - APPLICABILITY - COUNTERWEIGHT TO ADVANTAGES UNDER COMMUNITY REGULATIONS

( REGULATION NO 3, ARTICLE 11 ( 2 ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - NATIONAL LEGISLATIVE PROVISIONS - PROVISIONS FOR SUSPENSION OR REDUCTION - BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE - MEANING

( REGULATION NO 3, ARTICLE 11 ( 2 ))

1 . ARTICLE 11 ( 2 ) OF REGULATION NO 3 COVERS ALL NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION OR SUSPENSION INTENDED TO PREVENT THE OVERLAPPING OF BENEFITS WITHOUT DISTINCTION AS TO WHETHER THE PROVISION DEALS WITH THE ENTITLEMENT TO BENEFIT OR THE PROVISION THEREOF .

A PROVISION OF NATIONAL LAW INTENDED TO PROHIBIT THE SIMULTANEOUS RECEIPT OF SICKNESS BENEFIT AND BENEFIT ON ACCOUNTS OF INCAPACITY TO WORK CONSTITUTES A PROVISION FOR SUSPENSION OR REDUCTION WITHIN THE MEANING OF ARTICLE 11 ( 2 ) OF REGULATION NO 3 .

2 . ARTICLE 11 ( 2 ) OF REGULATION NO 3 IS THE COUNTERWEIGHT TO THE ADVANTAGES WHICH REGULATIONS NOS 3 AND 4 SECURE FOR WORKERS BY ENABLING THEM TO CLAIM THE SIMULTANEOUS APPLICATION OF THE SOCIAL SECURITY LAWS OF SEVERAL MEMBER STATES, AND IS INTENDED TO PREVENT THEM DERIVING FROM THAT APPLICATION ADVANTAGES CONSIDERED EXCESSIVE BY THE NATIONAL LEGISLATION .

THE LIMITATIONS IN ARTICLE 11 ( 2 ) ARE ACCORDINGLY APPLICABLE TO INSURED PERSONS ONLY AS REGARDS BENEFITS ACQUIRED UNDER THOSE SAME REGULATIONS .

3 . THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' CANNOT BE LIMITED MERELY TO THE CASE WHERE THE PROVISION AGAINST OVERLAPPING IS EXPRESSED IN TERMS COVERING ALL BENEFITS IN GENERAL, WHETHER ACQUIRED UNDER THE SCHEME IN OTHER MEMBER STATES OR UNDER THAT OF THE STATE CONCERNED .

THE EXTENSION OF A PROVISION AGAINST OVERLAPPING OF NATIONAL BENEFIT TO BENEFIT DUE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IS POSSIBLE, HOWEVER, ONLY IN SO FAR AS THE TWO BENEFITS ASSIMILATED ARE GENUINELY COMPARABLE, PARTICULARLY AS REGARDS THE POSSIBILITY OF THEIR OVERLAPPING .

THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' CAN ONLY MEAN THE AMOUNT ACTUALLY PAID AS ASSIMILATED BENEFIT .

IN CASE 184/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP AT UTRECHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING OF AMSTERDAM, NETHERLANDS,

AND

H . W . KAUFMANN, RESIDENT AT NEUWIED, FEDERAL REPUBLIC OF GERMANY,

ON THE INTERPRETATION OF ARTICLE 11 ( 2 ) OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ NO 30, 16 . 12 . 1958, P . 561/58 ),

1 BY JUDGMENT DATED 2 NOVEMBER 1973 THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 11 ( 2 ) OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ NO 30, 16 . 12 . 1958, P . 561/58 ).

2 UNDER THIS PROVISION, 'THE LEGISLATIVE PROVISIONS OF A MEMBER STATE FOR REDUCTION OR SUSPENSION OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS OR WITH OTHER INCOME ... SHALL APPLY TO A BENEFICIARY, EVEN IN RESPECT OF BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE ...'.

3 THE FIRST QUESTION ASKS WHETHER THIS ARTICLE COVERS A PROVISION OF NATIONAL LAW, SUCH AS ARTICLE 20 OF THE NETHERLANDS LAW ON INSURANCE AGAINST INCAPACITY TO WORK ( WAO ) WHICH PROVIDES THAT 'SO LONG AS THE INSURED IS ENTITLED TO PAYMENT OF SICKNESS BENEFIT ( ZIEKENGELD ) UNDER THE LAW RELATING TO SICKNESS INSURANCE ( ZIEKTEWET ) HE SHALL NOT BE ENTITLED TO ANY BENEFIT ON ACCOUNT OF INCAPACITY TO WORK '.

4 ARTICLE 11 ( 2 ) OF REGULATION NO 3 COVERS ALL NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION OR SUSPENSION OF BENEFIT INTENDED TO PREVENT OVERLAPPING, WITHOUT DISTINCTION AS TO WHETHER THE PROVISIONS CONCERN THE ENTITLEMENT TO BENEFIT OR THE PROVISION THEREOF .

5 A PROVISION OF NATIONAL LAW INTENDED TO PROHIBIT THE SIMULTANEOUS RECEIPT OF BOTH SICKNESS BENEFIT AND BENEFIT ON ACCOUNT OF INCAPACITY TO WORK ACCORDINGLY CONSTITUTES A PROVISION FOR SUSPENSION OR REDUCTION WITHIN THE MEANING OF THE ABOVE MENTIONED ARTICLE 11 ( 2 ).

6 IT IS FOR THE NATIONAL JUDGE TO DECIDE WHETHER, IN THE PRESENT CASE, SUCH A RISK OF OVERLAPPING EXISTS .

7 THE SECOND QUESTION ASKS, IN SUBSTANCE, WHETHER THE FACT THAT A NATIONAL PROVISION AGAINST OVERLAPPING DESCRIBES THE SICKNESS BENEFIT WHICH MAY NOT OVERLAP WITH BENEFIT ON ACCOUNT OF INCAPACITY TO WORK BY ITS TYPICALLY NATIONAL DESIGNATION, RENDERS THIS CLAUSE INAPPLICABLE TO THE RECIPIENT OF SICKNESS BENEFIT GRANTED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE .

8 THE ANSWER TO THIS QUESTION MUST ENABLE THE NATIONAL COURT TO DETERMINE WHETHER ARTICLE 20 OF THE WAO, WHICH PRECLUDES THE RECEIPT OF THE BENEFIT PROVIDED FOR BY THAT LAW, SO LONG AS THE INSURED IS IN RECEIPT OF THE SICKNESS BENEFIT PROVIDED FOR BY DUTCH LAW UNDER A SPECIFIC NAME ( ZIEKENGELD ), APPLIES TO THE RECIPIENT OF SICKNESS BENEFIT PROVIDED FOR BY GERMAN LAW ( KRANKENGELD ) SO THAT FOR THE PURPOSES OF THE SAID ARTICLE 20 OF THE WAO THE GERMAN 'KRANKENGELD' IS ASSIMILATED TO THE DUTCH 'ZIEKENGELD '.

9 IN THE LIGHT OF ARTICLES 48 TO 51 OF THE TREATY, ARTICLE 11 ( 2 ) OF REGULATION NO 3 IS THE COUNTERWEIGHT TO THE ADVANTAGES WHICH REGULATIONS NOS 3 AND 4 PROCURE FOR WORKERS BY ENABLING THEM TO CLAIM BENEFIT SIMULTANEOUSLY UNDER THE SOCIAL SECURITY LAWS OF SEVERAL MEMBER STATES, AND ITS PURPOSE IS TO PREVENT THEM DERIVING FROM THAT CLAIM ADVANTAGES WHICH THE NATIONAL LEGISLATION CONSIDERS EXCESSIVE .

10 THE LIMITATIONS MENTIONED IN ARTICLE 11 ( 2 ) ACCORDINGLY APPLY TO INSURED PERSONS ONLY IN SO FAR AS REGARDS BENEFITS ACQUIRED THROUGH THE OPERATION OF THOSE SAME REGULATIONS .

11 THIS CONDITION IS SATISFIED WHEN A WORKER WHO HAS BEEN SUCCESSIVELY EMPLOYED IN DIFFERENT MEMBER STATES CLAIMS, ON THE BASIS OF ARTICLE 26 OF REGULATION NO 3, THAT ARTICLE 27 BE APPLIED BY ANALOGY IN ORDER TO ESTABLISH HIS ENTITLEMENT IN ONE MEMBER STATE TO INVALIDITY BENEFIT EXCLUSIVELY DEPENDENT ON THE MATERIALIZATION OF A RISK, WHERE THAT RISK MATERIALIZED IN ANOTHER MEMBER STATE .

12 ARTICLE 11 ( 2 ) OF REGULATION NO 3 PROVIDES FOR PROVISIONS FOR REDUCTION OR SUSPENSION TO APPLY 'EVEN IN RESPECT OF BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE '.

13 THE PRACTICAL EFFECT OF THIS PROVISION WOULD BE GREATLY DIMINISHED IF THE EXPRESSION, 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE', WERE LIMITED MERELY TO THE CASE WHERE THE PROVISION AGAINST OVERLAPPING IS EXPRESSED IN TERMS COVERING ALL BENEFITS IN GENERAL WHETHER ACQUIRED UNDER THE SCHEME OF THE OTHER MEMBER STATES OR UNDER THAT OF THE STATE CONCERNED .

14 THE EXTENSION OF A PROVISION AGAINST OVERLAPPING OF NATIONAL BENEFIT TO BENEFIT DUE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IS THE COUNTERWEIGHT TO THE ASSIMILATION UNDER REGULATION NO 3 OF A NATIONAL RISK WITH A RISK MATERIALIZING IN ANOTHER MEMBER STATE .

15 SUCH AN EXTENSION, HOWEVER, IS ONLY POSSIBLE IN SO FAR AS THE TWO BENEFITS ASSIMILATED ARE GENUINELY COMPARABLE, PARTICULARLY AS REGARDS THE POSSIBILITY OF THEIR OVERLAPPING .

16 THE THIRD QUESTION ASKS WHETHER, IN APPLYING THE NATIONAL PROVISION AGAINST OVERLAPPING, THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' USED IN ARTICLE 11 ( 2 ) OF REGULATION NO 3 MUST BE UNDERSTOOD TO MEAN THE ENTIRE BENEFIT TO WHICH THE RECIPIENT IS ENTITLED OR ONLY THE BENEFIT ACTUALLY PAID TO HIM AFTER ITS REDUCTION, IN CONFORMITY WITH THE LAW OF THAT OTHER MEMBER STATE, BY THE AMOUNT OF BENEFIT GRANTED UNDER ANOTHER SOCIAL SECURITY LAW .

17 IT MUST BE REMARKED THAT THE ANSWER TO THIS QUESTION CAN ONLY AFFECT NON-OVERLAPPING PROVISIONS THAT REDUCE BENEFIT AND NOT THOSE WHICH SUSPEND THE GRANT .

18 IT IS FOR THE NATIONAL JUDGE TO DECIDE THE CATEGORY UNDER WHICH ARTICLE 20 OF THE WAO FALLS .

19 WITH THIS QUALIFICATION, THE ANSWER TO THIS QUESTION IS TO BE FOUND IN THE BASIC PURPOSE OF ARTICLE 11 ( 2 ) OF REGULATION NO 3, WHICH IMPOSES ON WORKERS ENJOYING CERTAIN SOCIAL SECURITY ADVANTAGES, LIMITATIONS CORRESPONDING TO THE SAID ADVANTAGES .

20 ARTICLE 11 OF REGULATION NO 3 WOULD, WHEN APPLIED, EXCEED ITS OBJECTIVE, TO THE DETRIMENT OF THE WORKER TO WHOM IT APPLIES, IF IT HAD TO RESULT IN REDUCING SOCIAL SECURITY BENEFIT IN ONE MEMBER STATE BY THE TOTAL AMOUNT OF BENEFIT IN ANOTHER MEMBER STATE, WHERE THAT LATTER BENEFIT, UNDER THE TERMS OF A NON-OVERLAPPING PROVISION, HAS ONLY BEEN ALLOWED FOR AN ALREADY REDUCED AMOUNT .

21 THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' CAN THEREFORE ONLY MEAN THE AMOUNT ACTUALLY PAID AS ASSIMILATED BENEFIT .

22 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

23 AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY JUDGMENT OF THAT COURT DATED 2 NOVEMBER 1973,

HEREBY RULES :

1 . A PROVISION OF NATIONAL LAW INTENDED TO FORBID THE SIMULTANEOUS RECEIPT OF SICKNESS BENEFIT AND BENEFIT FROM INSURANCE AGAINST INCAPACITY TO WORK CONSTITUTES A PROVISION FOR SUSPENSION OR REDUCTION WITHIN THE MEANING OF ARTICLE 11 ( 2 ) OF REGULATION NO 3 .

2 . THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' CANNOT BE LIMITED MERELY TO THE CASE WHERE THE PROVISION AGAINST OVERLAPPING IS EXPRESSED IN TERMS COVERING ALL BENEFITS IN GENERAL, WHETHER ACQUIRED UNDER THE SCHEME IN OTHER MEMBER STATES OR UNDER THAT OF THE STATE CONCERNED .

3 . THE EXPRESSION 'BENEFITS ACQUIRED UNDER A SCHEME IN ANOTHER MEMBER STATE' CAN ONLY MEAN THE AMOUNT ACTUALLY PAID AS ASSIMILATED BENEFIT .