61963J0092

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1 . FREE MOVEMENT OF PERSONS - WORKERS - RELATED PROVISIONS - CRITERIA FOR INTERPRETATION

( EEC TREATY, ARTICLES 48 TO 51 )

2 . FREE MOVEMENT OF PERSONS - WORKERS - MANDATORY APPLICATION OF THE LEGISLATION OF THE STATE IN WHICH THE PERSON CONCERNED IS EMPLOYED

( EEC TREATY, ARTICLES 48 TO 51; REGULATION N . 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958 ), ARTICLE 12 )

3 . FREE MOVEMENT OF PERSONS - WORKERS - SIMULTANEOUS APPLICATION OF SEVERAL SYSTEMS OF LEGISLATION - ADMISSIBILITY OF PRINCIPLE - PERMISSIBILITY OF GRANT OF SUPPLEMENTARY PROTECTION BY WAY OF SOCIAL SECURITY BY A STATE OTHER THAN THAT IN WHICH THE PERSON CONCERNED IS EMPLOYED

1 . IN CASE OF DOUBT, MEASURES TAKEN IN IMPLEMENTATION OF ARTICLES 48 TO 51 OF THE TREATY MUST BE CONSTRUED SO AS TO AVOID PLACING MIGRANT WORKERS IN AN UNFAVOURABLE POSITION, PARTICULARLY WITH REGARD TO SOCIAL SECURITY .

2 . ARTICLE 12 OF REGULATION N . 3 OBLIGES THE STATE IN WHOSE TERRITORY WAGE-EARNERS OR ASSIMILATED WORKERS ARE EMPLOYED TO APPLY ITS LEGISLATION TO THEM .

3 . ARTICLE 12 OF REGULATION N . 3 DOES NOT PROHIBIT THE APPLICATION OF THE LEGISLATION OF A STATE OTHER THAN THAT IN WHICH THE INSURED PERSON WORKS EXCEPT TO THE EXTENT THAT IT REQUIRES THAT PERSON TO CONTRIBUTE TO THE FINANCING OF A SOCIAL SECURITY INSTITUTION WHICH IS UNABLE TO PROVIDE HIM WITH ADDITIONAL ADVANTAGES IN RESPECT OF THE SAME PERIOD .

IT IS ACCORDINGLY PERMISSIBLE FOR SUCH A STATE TO PROVIDE FOR THE GRANT OF RIGHTS TO BENEFITS IN FAVOUR OF THE INSURED PERSON EVEN IF HE ENJOYS, IN RESPECT OF THE SAME RISK AND PERIOD, SIMILAR RIGHTS UNDER THE LEGISLATION OF THE STATE IN WHICH HE WORKS .

IN CASE 92/63

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

MRS M . TH . NONNENMACHER, WIDOW OF H . E . MOEBS, RESIDENT AT DRUSENHEIM ( FRANCE ), APPELLANT,

AND

BESTUUR DER SOCIALE VERZEKERINGSBANK, AMSTERDAM, RESPONDENT,

ON THE INTERPRETATION OF ARTICLE 12 OF REGULATION N . 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P . 561 );

THE COURT HAS BEEN PROPERLY SEISED OF A REQUEST FOR INTERPRETATION UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP .

1 . THE QUESTION ASKED BY THE SAID COURT FIRST REQUESTS THE COURT TO SAY WHETHER ARTICLE 12 OF REGULATION N . 3 ' MUST...BE CONSTRUED TO MEAN THAT THE PERSONS TO WHOM IT REFERS ARE SUBJECT ONLY TO THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THEY ARE EMPLOYED '.

( A ) REGULATION N . 3 WAS MADE PURSUANT TO ARTICLE 51 OF THE EEC TREATY ACCORDING TO WHICH THE COUNCIL ' SHALL...ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS; TO THIS END, IT SHALL MAKE ARRANGEMENTS TO SECURE FOR MIGRANT WORKERS AND THEIR DEPENDANTS ...PAYMENTS OF BENEFITS TO PERSONS RESIDENT IN THE TERRITORIES OF MEMBER STATES '.

THIS PAYMENT PRE-SUPPOSES MEMBERSHIP OF A SOCIAL SECURITY SCHEME OF A MEMBER STATE . THE TREATY HAS THUS PLACED UPON THE COUNCIL THE DUTY TO LAY DOWN RULES PREVENTING THOSE CONCERNED, IN THE ABSENCE OF LEGISLATION APPLYING TO THEM, FROM REMAINING WITHOUT PROTECTION IN THE MATTER OF SOCIAL SECURITY .

WITH A VIEW TO ACHIEVING THIS OBJECT IT WAS NECESSARY TO MAKE PROVISION FOR THE MANDATORY APPLICATION OF SPECIFIC LEGISLATION . ARTICLE 12 OF REGULATION N . 3 FULFILS THIS REQUIREMENT BY OBLIGING THE STATE IN WHOSE TERRITORY WAGE-EARNERS OR ASSIMILATED WORKERS ARE EMPLOYED TO APPLY ITS LEGISLATION TO THEM . THE MANDATORY NATURE OF THIS ARTICLE IS FURTHER CONFIRMED BY THE EXPLICIT TERMS OF BOTH ARTICLE 12 ('... SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE ... ') AND THE HEAD UNDER WHICH IT IS INCLUDED (' PROVISIONS FOR DETERMINING WHAT LEGISLATION IS APPLICABLE '). TAKING INTO ACCOUNT THE ABOVE-MENTIONED PROVISIONS OF ARTICLE 51 OF THE TREATY, THIS OBLIGATION MUST BE REGARDED AS THE ESSENTIAL ELEMENT OF THE SAID ARTICLE 12 .

( B ) THE QUESTION SUBMITTED TO THE COURT IS DIRECTED TOWARDS CLARIFYING WHETHER - AND, IF SO TO WHAT EXTENT - THE MANDATORY APPLICATION OF THE LEGISLATION OF THE STATE IN WHICH THE WORKER IS EMPLOYED EXCLUDES THE APPLICATION OF THE LEGISLATION OF ANY OTHER MEMBER STATE, EVEN OF THAT IN THE TERRITORY OF WHICH HE HAS HIS PERMANENT RESIDENCE .

ARTICLE 12 INCLUDES NO PROVISION PROHIBITING THE SIMULTANEOUS APPLICATION OF SEVERAL SYSTEMS OF LEGISLATION . IN THESE CIRCUMSTANCES THE INTENTION OF THE AUTHORS OF REGULATION N . 3 TO IMPOSE SUCH A RESTRICTION ON THE FREEDOM OF THE NATIONAL LEGISLATURE SHOULD BE PRESUMED ONLY TO THE EXTENT THAT SUCH SIMULTANEOUS APPLICATION IS CLEARLY CONTRARY TO THE SPIRIT OF THE TREATY AND PARTICULARLY OF ARTICLES 48 TO 51 .

THESE PROVISIONS ARE DESIGNED TO ESTABLISH THE GREATEST POSSIBLE FREEDOM OF MOVEMENT FOR WORKERS . THIS AIM INCLUDES THE ELIMINATION OF LEGISLATIVE OBSTACLES WHICH COULD HANDICAP MIGRANT WORKERS .

IN CASE OF DOUBT THE ABOVEMENTIONED ARTICLES AND THE MEASURES TAKEN IN IMPLEMENTATION OF THEM MUST THEREFORE BE CONSTRUED SO AS TO AVOID PLACING MIGRANT WORKERS IN AN UNFAVOURABLE LEGAL POSITION, PARTICULARLY WITH REGARD TO SOCIAL SECURITY . ON THE OTHER HAND THESE PROVISIONS ARE NOT OPPOSED TO LEGISLATION BY THE MEMBER STATES DESIGNED TO BRING ABOUT ADDITIONAL PROTECTION BY WAY OF SOCIAL SECURITY FOR THE BENEFIT OF MIGRANT WORKERS .

IF A PROHIBITION OF THE SIMULTANEOUS APPLICATION OF TWO NATIONAL SYSTEMS OF LEGISLATION CONCERNING WORKERS CANNOT BE ESTABLISHED IN THE ABSENCE OF A SPECIFIC PROVISION FOR THAT PURPOSE, THERE IS ALL THE MORE REASON WHY THIS SHOULD BE SO WHEN ONE OF THE SYSTEMS, FAR FROM BEING INTENDED ONLY FOR WORKERS, APPLIES WITHOUT DISTINCTION TO THE WHOLE POPULATION BY VIRTUE OF A CRITERION DEPENDING NOT ON THE EXERCISE OF A WAGE-EARNING ACTIVITY BUT ON RESIDENCE ALONE . ARTICLES 48 TO 51 OF THE TREATY, WHICH ARE INCORPORATED IN THE CHAPTER HEADED ' WORKERS ', AND WHICH CONSTITUTE THE FOUNDATION, THE FRAMEWORK AND THE LIMITS OF REGULATION N . 3, PROVIDE NO AUTHORITY FOR PROHIBITING A STATE FROM GRANTING ADDITIONAL PROTECTION BY WAY OF SOCIAL SECURITY TO ITS WHOLE POPULATION INCLUDING THOSE OF ITS NATIONALS WHO WORK IN ANOTHER MEMBER COUNTRY .

FOR THE FOREGOING REASONS, ARTICLE 12 REGULATION N . 3 DOES NOT PROHIBIT THE APPLICATION OF THE LEGISLATION OF A MEMBER STATE OTHER THAN THAT IN WHICH THE PERSON CONCERNED WORKS, EXCEPT TO THE EXTENT THAT IT REQUIRES THAT PERSON TO CONTRIBUTE TO THE FINANCING OF A SOCIAL SECURITY INSTITUTION WHICH IS UNABLE TO PROVIDE HIM WITH ADDITIONAL ADVANTAGES IN RESPECT OF THE SAME RISK AND OF THE SAME PERIOD .

CONSEQUENTLY IT IS PERMISSIBLE FOR STATES, OTHER THAN THAT IN THE TERRITORY OF WHICH THE INSURED PERSON IS EMPLOYED, TO PROVIDE OR NOT TO PROVIDE FOR THE GRANT OF RIGHTS TO BENEFITS IN FAVOUR OF THAT PERSON EVEN IF HE ENJOYS, IN RESPECT OF THE SAME RISK AND PERIOD, SIMILAR RIGHTS UNDER THE LEGISLATION OF THE STATE IN WHICH HE WORKS .

2 . THE CENTRALE RAAD ASKS THE COURT IN THE SECOND PART OF ITS QUESTION TO SAY WHETHER, TO THE EXTENT THAT ARTICLE 12 EXCLUDES THE APPLICATION OF THE LEGISLATION OF OTHER STATES, THIS RULE IS SUBJECT TO AN EXCEPTION WHEN IN FACT THE PERSON INSURED OR HIS DEPENDANTS CANNOT ASSERT ANY RIGHT ON THE BASIS OF THE LEGISLATION OF THE STATE REFERRED TO IN THE SAID ARTICLE .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT ARTICLE 12 DOES NOT PROHIBIT OTHER STATES FROM ALLOWING THOSE CONCERNED A RIGHT TO BENEFITS .

3 . THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH HAS SUBMITTED ITS OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

AS THE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE CENTRALE RAAD VAN BEROEP IT IS FOR THAT COURT TO MAKE A DECISION AS TO COSTS .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT FOR A PRELIMINARY RULING BY THE CENTRALE RAAD VAN BEROEP, FORWARDED BY A LETTER OF 16 OCTOBER 1963 FROM THE ACTING PRESIDENT OF THAT COURT,

HEREBY RULES :

1 . ARTICLE 12 OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P . 561 ET SEQ .) DOES NOT PROHIBIT MEMBER STATES OTHER THAN THOSE IN THE TERRITORY OF WHICH WAGE-EARNERS OR

ASSIMILATED WORKERS ARE EMPLOYED FROM APPLYING THEIR SOCIAL SECURITY LEGISLATION TO SUCH PERSONS .

2 . IT IS OTHERWISE ONLY IF A MEMBER STATE, OTHER THAN THAT IN THE TERRITORY OF WHICH THE WORKER IS EMPLOYED, REQUIRES HIM TO CONTRIBUTE TO THE FINANCING OF AN INSTITUTION WHICH WOULD NOT ACCORD HIM SUPPLEMENTARY PROTECTION BY WAY OF SOCIAL SECURITY IN RESPECT OF THE SAME RISK AND OF THE SAME PERIOD .

3 . THE DECISION ON COSTS IS A MATTER FOR THE CENTRALE RAAD VAN BEROEP .