61976J0087

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - LEGISLATION OF A MEMBER STATE WITHIN THE MEANING OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71 - CONCEPT

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - RIGHTS ACQUIRED UNDER THE LEGISLATION OF A MEMBER STATE - RECIPIENT - EMPLOYMENT EXCLUSIVELY IN A NON-METROPOLITAN TERRITORY - RESIDENCE CLAUSE - WAIVER - APPLICATION

( REGULATION NO 1408/71 , ARTICLE 10 ( 1 ))

1 . THE EXPRESSION ' LEGISLATION ' WITHIN THE MEANING OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71 INCLUDES 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 , NOT ONLY WITHIN THE METROPOLITAN TERRITORIES BUT ALSO IN TERRITORIES MAINTAINING SPECIAL RELATIONS WITH THOSE STATES .

2 . IN THE ABSENCE OF EXPRESS PROVISIONS TO THE CONTRARY , THE WAIVING OF RESIDENCE CLAUSES PRESCRIBED BY THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 APPLIES TO THE SITUATION OF A RECIPIENT OF BENEFITS GUARANTEED BY THE LEGISLATION OF A MEMBER STATE RELATING TO EMPLOYMENT EXCLUSIVELY IN A TERRITORY WHICH AT THE TIME MAINTAINED SPECIAL RELATIONS WITH A MEMBER STATE , WHERE THAT RECIPIENT , WHO IS A NATIONAL OF A MEMBER STATE , RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT WHICH IS RESPONSIBLE FOR PAYMENT OF SOCIAL SECURITY BENEFITS IN RESPECT OF EMPLOYMENT IN THE SAID TERRITORY .

IN CASE 87/76 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL OF BRUSSELS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WALTER BOZZONE

AND

OFFICE DE SECURITE SOCIALE D ' OUTRE-MER ( OVERSEAS SOCIAL SECURITY OFFICE )

ON THE INTERPRETATION OF THE CONCEPT OF A WORKER WITHIN THE MEANING OF REGULATION NO 1408/71 , WHERE THE EMPLOYMENT WAS IN A STATE WHICH WAS ONCE A COLONY AND IS NOW AN ASSOCIATED TERRITORY ,

1 BY JUDGMENT OF 6 SEPTEMBER 1976 WHICH REACHED THE COURT REGISTRY ON 11 OCTOBER 1976 THE TRIBUNAL DU TRAVAIL , BRUSSELS , REFERRED TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS INTENDED TO ASCERTAIN :

1 . WHETHER THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 , CONCERNING THE WAIVING OF RESIDENCE CLAUSES , IS APPLICABLE TO A RECIPIENT OF BENEFITS ACQUIRED IN RESPECT OF EMPLOYMENT EXCLUSIVELY IN AN ASSOCIATED TERRITORY WHEN SUCH RECIPIENT , WHO IS A NATIONAL OF A MEMBER STATE , RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT WHICH IS RESPONSIBLE FOR PAYMENT OF THE SOCIAL SECURITY BENEFITS IN RESPECT OF EMPLOYMENT IN THE SAID ASSOCIATED TERRITORY ; IN OTHER WORDS , WHETHER ARTICLE 2 ( 2 ) OF THE COLONIAL DECREE OF 7 AUGUST 1952 , AS AMENDED BY THE COLONIAL DECREE OF 2 JULY 1956 , IS CONTRARY TO THE PROVISIONS OF REGULATION NO 1408/71 IN THAT IT REQUIRES ACTUAL AND HABITUAL RESIDENCE IN BELGIUM , THE BELGIAN CONGO , RUANDA-URUNDI OR IN A STATE WITH WHICH A RECIPROCAL AGREEMENT HAS BEEN CONCLUDED .

2 . WHETHER IT IS NECESSARY TO CONSIDER A WORKER EMPLOYED IN AN ASSOCIATED TERRITORY AND AT THE SAME TIME SUBJECT TO SPECIFIC LEGISLATION ENACTED BY ONE OF THE MEMBER STATES WITH REGARD TO THAT TERRITORY AND THE PERSONS EMPLOYED IN IT , IN THIS CASE THE COLONIAL DECREE OF 7 AUGUST 1952 , AS A WORKER WHO IS OR HAS BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 .

2 THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF AN ACTION BROUGHT BY AN ITALIAN WORKER RESIDENT IN ITALY AGAINST A BELGIAN SOCIAL SECURITY INSTITUTION FOR THE ANNULMENT OF THE REFUSAL BY THAT INSTITUTION TO GRANT THE PLAINTIFF INVALIDITY BENEFITS ON THE BASIS OF INSURANCE PERIODS COMPLETED BY THE LATTER IN THE FORMER BELGIAN CONGO , NOW THE REPUBLIC OF ZAIRE .

3 THAT REFUSAL WAS BASED ON THE FACT THAT PURSUANT TO THE COLONIAL DECREE REFERRED TO BY THE NATIONAL COURT - TO WHICH THE PLAINTIFF IN THE MAIN ACTION HAD BEEN SUBJECT AND OF WHICH THE RELEVANT CLAUSES IN THE PRESENT CONTEXT ARE REPEATED IN A BELGIAN LAW - SUCH BENEFITS ARE GRANTED ONLY TO PERSONS WHO ACTUALLY AND HABITUALLY RESIDE IN BELGIUM OR IN ONE OF THE FORMER BELGIAN COLONIES .

4 REGULATION NO 1408/71 OF 14 JUNE 1971 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) APPLIES , ACCORDING TO ARTICLE 2 ( 1 ) THEREOF , TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES AND WHO ARE NATIONALS OF ONE OF THE MEMBER STATES .

5 IN VIEW OF THAT PROVISION THE SECOND QUESTION REFERRED TO THE COURT MUST BE CONSIDERED FIRST , FOR IF THE APPLICANT - WHOSE STATUS AS A WORKER AND AS A NATIONAL OF A MEMBER STATE IS NOT CONTESTED - CANNOT BE HELD TO BE OR HAVE BEEN ' SUBJECT TO THE LEGISLATION OF A MEMBER STATE ' , HIS SITUATION IS NOT GOVERNED BY COMMUNITY RULES AND THE FIRST QUESTION THEREFORE BECOMES DEVOID OF PURPOSE .

6 IT IS THEREFORE APPROPRIATE TO ESTABLISH FIRST THE SCOPE OF THE CONCEPT ' LEGISLATION OF A MEMBER STATE ' .

7 THE DEFENDANT IN THE MAIN ACTION MAINTAINS THAT ' LEGISLATION OF A MEMBER STATE ' MUST BE TAKEN TO MEAN ' THE LEGISLATION APPLICABLE IN THAT MEMBER STATE AS OPPOSED TO THAT APPLICABLE IN A COUNTRY OR TERRITORY WHICH MAINTAINS SPECIAL RELATIONS WITH THAT MEMBER STATE ' .

8 IT DEDUCES FROM THAT INTERPRETATION THAT THE COMMUNITY RULES APPLY EXCLUSIVELY TO THE METROPOLITAN TERRITORIES OF THE MEMBER STATES .

9 IN INTERPRETING THE EXPRESSION ' LEGISLATION ' REFERENCE MUST BE MADE TO ARTICLE 1 ( J ) OF REGULATION NO 1408/71 WHEREBY THAT EXPRESSION MEANS ALL THE LAWS , REGULATIONS , AND OTHER PROVISIONS AND ALL OTHER PRESENT OR FUTURE IMPLEMENTING MEASURES OF EACH MEMBER STATE RELATING TO THE BRANCHES AND SCHEMES OF SOCIAL SECURITY COVERED BY ARTICLE 4 ( 1 ) AND ( 2 ); THIS ARTICLE DETERMINES THE MATTERS COVERED BY THE REGULATION , INCLUDING IN PARTICULAR INVALIDITY BENEFITS , WHICH ARE THE SUBJECT-MATTER OF THE APPLICANT ' S CLAIM .

10 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 .

11 THIS MUST BE BORNE IN MIND WHEN CONSIDERING WHETHER MEASURES SUCH AS THAT REFERRED TO BY THE NATIONAL COURT FORM PART OF THE CONCEPT OF ' LEGISLATION ( OF A MEMBER STATE ) ' WITHIN THE MEANING OF ARTICLES 1 ( J ) AND 2 ( 1 ) OF THE REGULATION .

12 IT IS CLEAR FROM THE FILE THAT THE PERSON CONCERNED FIRST ENJOYED THE BENEFIT OF THE COLONIAL DECREE OF 7 AUGUST 1952 GOVERNING THE SICKNESS AND INVALIDITY INSURANCE OF COLONIAL EMPLOYEES , PURSUANT TO WHICH HE WAS GRANTED AN INVALIDITY PENSION .

13 THAT INSURANCE SCHEME WAS GUARANTEED AND RIGHTS ACQUIRED THEREUNDER WERE AFFIRMED BY A BELGIAN LAW OF 16 JUNE 1960 ENSURING THE CONTINUITY OF THE SCHEME INSTITUTED BY THE SAID DECREE OF 7 AUGUST 1952 .

14 MOREOVER , THAT LAW DOES NOT MERELY GUARANTEE BENEFITS ACQUIRED PURSUANT TO THE DECREE BUT , BY WAY OF SUBSEQUENT AMENDMENTS , SUPPLEMENTS IT BY PROVIDING FOR THE GRANT OF ADDITIONAL BENEFITS ( ARTICLE 5 BIS ) AND IN PARTICULAR ADAPTS IT TO THE COST OF LIVING ACCORDING TO THE RULES IN FORCE IN BELGIUM ( ARTICLE 11 , FINAL PROVISION ).

15 AS A WHOLE , THOSE PROVISIONS THEREFORE CONSTITUTE ' NATIONAL LEGISLATION ' WITHIN THE MEANING OF ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 .

16 FINALLY , NO SPECIAL RULES FOR THE IMPLEMENTATION OF THE LEGISLATION IN QUESTION ARE LAID DOWN IN THE ANNEXES TO THE REGULATION .

17 IT IS CLEAR FROM THESE CONSIDERATIONS TAKEN AS A WHOLE THAT THE SECOND QUESTION REFERRED BY THE TRIBUNAL DU TRAVAIL , BRUSSELS , MUST BE ANSWERED TO THE EFFECT 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 OF 7 AUGUST 1952 , THE CONTINUITY OF WHICH IS GUARANTEED BY THE BELGIAN LAW OF 16 JUNE 1960 .

18 AS REGARDS THE FIRST QUESTION , IT IS SUFFICIENT TO NOTE THAT ACCORDING TO THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION , INVALIDITY . . . CASH BENEFITS . . . ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT BE SUBJECT TO ANY REDUCTION , MODIFICATION , SUSPENSION , WITHDRAWAL OR CONFISCATION BY REASON OF THE FACT THAT THE RECIPIENT RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED ' .

19 THE REGULATION CONTAINS NO PROVISION DEROGATING FROM THAT ARTICLE IN RELATION TO SITUATIONS SUCH AS THAT UNDER CONSIDERATION .

20 THE REPLY TO THE QUESTION MUST THEREFORE BE IN THE AFFIRMATIVE .

21 IT IS THEREFORE APPROPRIATE TO REPLY TO THE FIRST QUESTION REFERRED BY THE TRIBUNAL DU TRAVAIL , BRUSSELS , THAT , IN THE ABSENCE OF EXPRESS PROVISIONS TO THE CONTRARY , THE WAIVING OF RESIDENCE CLAUSES PRESCRIBED BY THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 APPLIES TO THE SITUATION OF A RECIPIENT OF BENEFITS GUARANTEED BY THE LEGISLATION OF A MEMBER STATE RELATING TO EMPLOYMENT EXCLUSIVELY IN A TERRITORY WHICH AT THE TIME MAINTAINED SPECIAL RELATIONS WITH A MEMBER STATE , WHERE THAT RECIPIENT , WHO IS A NATIONAL OF A MEMBER STATE , RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT WHICH IS RESPONSIBLE FOR PAYMENT OF SOCIAL SECURITY BENEFITS IN RESPECT OF EMPLOYMENT IN THE SAID TERRITORY .

COSTS

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

23 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE TRIBUNAL DU TRAVAIL , BRUSSELS , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , BRUSSELS , BY JUDGMENT OF 6 SEPTEMBER 1976 , HEREBY RULES :

1 . 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 OF 7 AUGUST 1952 , THE CONTINUITY OF WHICH IS GUARANTEED BY THE BELGIAN LAW OF 16 JUNE 1960 .

2 . IN THE ABSENCE OF EXPRESS PROVISIONS TO THE CONTRARY , THE WAIVING OF RESIDENCE CLAUSES PRESCRIBED BY THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 APPLIES TO THE SITUATION OF A RECIPIENT OF BENEFITS GUARANTEED BY THE LEGISLATION OF A MEMBER STATE RELATING TO EMPLOYMENT EXCLUSIVELY IN A TERRITORY WHICH AT THE TIME MAINTAINED SPECIAL RELATIONS WITH A MEMBER STATE , WHERE THAT RECIPIENT , WHO IS A NATIONAL OF A MEMBER STATE , RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT WHICH IS RESPONSIBLE FOR PAYMENT OF SOCIAL SECURITY BENEFITS IN RESPECT OF EMPLOYMENT IN THE SAID TERRITORY .