61966J0004

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1 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL SECURITY MEASURES TO BE ADOPTED BY THE COUNCIL OF THE EEC - AIM

( EEC TREATY, ARTICLE 51 )

2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - REGULATION NO 3 OF THE COUNCIL OF THE EEC - APPLICATION OF NETHERLANDS LEGISLATION

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ANNEX G(III)(B ))

1 . THE AIM OF ARTICLE 51 OF THE EEC TREATY IS TO ALLOW THE MIGRANT WORKER TO ACQUIRE THE RIGHT TO BENEFIT FOR ALL PERIODS OF WORK COMPLETED BY HIM IN VARIOUS MEMBER STATES, WITHOUT DISCRIMINATION AS AGAINST OTHER WORKERS BY REASON OF THE EXERCISE OF HIS RIGHT TO FREEDOM OF MOVEMENT .

2 . THE PROVISIONS OF ANNEX G(III)(B)(B ) CONCERNING THE ASCERTAINMENT OF THE AMOUNT OF BENEFIT PAYABLE UNDER THE NETHERLANDS LAW CONCERNING GENERAL INSURANCE FOR WIDOWS AND ORPHANS, APPLIES IN ALL CASES IN WHICH ARTICLE 27 GIVES RISE TO BENEFIT ON THE BASIS OF THE MAINTENANCE OR RECOVERY OF RIGHTS ACQUIRED UNDER A PREVIOUS SYSTEM .

IN CASE 4/66

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP, BEING THE NETHERLANDS COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MRS J.E . LABOTS ( NEE HAGENBEEK ), WIDOW OF W . LABOTS, RESIDING IN ARNHEM ( NETHERLANDS ),

AND

RAAD VAN ARBEID, ARNHEM,

ON THE INTERPRETATION OF CERTAIN PROVISIONS

- OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.561 ET SEQ .);

- OF REGULATION NO 130/63 OF THE COUNCIL OF THE EEC AMENDING CERTAIN ANNEXES TO THE SAID REGULATION NO 3 AND TO REGULATION NO 4 OF THE COUNCIL OF THE EEC ( OFFICIAL JOURNAL OF 28 DECEMBER 1963, P.2996 ET SEQ .);

P.429

THE QUESTION PUT BY THE CENTRALE RAAD VAN BEROEP

THE POINT OF THE PRELIMINARY QUESTION RAISED BY THE CENTRALE RAAD VAN BEROEP IS WHETHER THE PROVISIONS OF ANNEX G(III)(B)(B ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC, IN ITS AMENDED FORM SET FORTH IN ARTICLE 7 OF REGULATION NO 130/63/EEC OF THE COUNCIL, ARE ONLY APPLICABLE FOR CALCULATING THE AMOUNT OF BENEFIT DUE UNDER THE AWW OR ARE ALSO APPLICABLE IN DECIDING WHETHER THE PERSON CONCERNED FULFILS THE REQUISITE CONDITIONS FOR ENTITLEMENT TO THE BENEFITS PROVIDED FOR BY THE SAID LEGISLATION .

THE PROVISION REFERRED TO READS AS FOLLOWS :

' FOR THE PURPOSE OF APPLYING ARTICLES 27 AND 28 OF THE REGULATION, THE NETHERLANDS INSTITUTIONS SHALL TAKE ACCOUNT OF THE FOLLOWING PROVISIONS :

( A )...

( B ) FOR THE PURPOSE OF ASCERTAINING THE AMOUNT OF BENEFIT PAYABLE UNDER THE NETHERLANDS LEGISLATION CONCERNING GENERAL INSURANCE FOR WIDOWS AND ORPHANS, THOSE CONTINUATION PERIODS OR PERIODS OF PAYMENT OF PREMIUMS COMPLETED BEFORE 1 OCTOBER 1959 UNDER THE NETHERLANDS LEGISLATION ON INVALIDITY, OLD-AGE AND SURVIVORS' INSURANCE ( OF WAGE-EARNERS ) SHALL BE ASSIMILATED TO INSURANCE PERIODS COMPLETED IN PURSUANCE OF THE LEGISLATION FIRST AFOREMENTIONED .

HAVING REGARD TO THE CIRCUMSTANCE THAT THE AWW, A SCHEME OF INSURANCE BASED ON THE MATERIALIZATION OF THE RISK, IS NOT CONCERNED FOR ITS APPLICATION WITH INSURANCE PERIODS ON WHICH THE RIGHT TO BENEFIT OR THE AMOUNT OF BENEFIT PAYABLE ARE BASED, THIS EXTRACT CANNOT BE INTERPRETED IN ISOLATION . IN ORDER TO INTERPRET IT, IT SHOULD BE RELATED TO ARTICLES 27 AND 28 OF REGULATION NO 3 WHICH FOR THE PURPOSE OF APPLYING IT WAS INSERTED IN ANNEX G .

THE SAID ARTICLES LIKE THE ENTIRE SYSTEM OF WHICH THEY FORM PART HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY, WHICH ARE AIMED AT SECURING FREEDOM OF MOVEMENT FOR WORKERS . UNDER ARTICLE 51, REGULATION NO 3 MUST ' SECURE ' FOR MIGRANT WORKERS ' AGGREGATION, FOR THE PURPOSE OF ACQUIRING AND MAINTAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES '.

P.430

THE AIM OF THIS PROVISION IS TO ALLOW THE MIGRANT WORKER TO ACQUIRE THE RIGHT TO BENEFIT FOR ALL PERIODS OF WORK COMPLETED BY HIM IN VARIOUS MEMBER STATES, WITHOUT DISCRIMINATION AS AGAINST OTHER WORKERS BY REASON OF THE EXERCISE OF HIS RIGHT TO FREEDOM OF MOVEMENT . THE INTERPRETATION OF ARTICLES 27 AND 28 OF REGULATION NO 3 AND OF THE ANNEXES RELATING THERETO IS INSEPARABLE FROM THIS BASIC AIM . THESE PROVISIONS WOULD NOT GUARANTEE THE FREE MOVEMENT OF WORKERS IF, MERELY BY EXERCISING THIS FREEDOM, THEY WERE TO LOSE THEIR ENTITLEMENT TO SOCIAL SECURITY ACQUIRED IN THE COUNTRIES IN WHICH THEY HAVE WORKED .

IT IS CLEAR FROM ARTICLE 27(1 ) OF REGULATION NO 3 THAT ' WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, THE INSURANCE PERIODS AND ASSIMILATED PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES SHALL BE AGGREGATED ', ' FOR THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT '. IN THE PRESENT CASE, IT IS OF PRIME IMPORTANCE TO BEAR IN MIND THE CONCEPT OF RECOVERY OF THE RIGHT TO BENEFIT . THE COURT HAS ALREADY RULED THAT ARTICLES 27 AND 28 ARE APPLICABLE TO LEGISLATION WHICH, LIKE THE AWW, DOES NOT MAKE THE AMOUNT OF BENEFIT DEPENDENT ON THE LENGTH OF INSURANCE PERIOD . IT IS CLEAR FROM ARTICLE 27 THAT THE MIGRANT WORKER WHO ENFORCES HIS RIGHTS UNDER VARIOUS NATIONAL LEGISLATIVE SYSTEMS IS ENTITLED TO RETAIN AND RECOVER BENEFITS PAYABLE IN RESPECT OF THE PERIODS OF WORK SUCCESSIVELY OR ALTERNATELY COMPLETED, WHATEVER THE LEGAL PROVISIONS OF EACH OF THE MEMBER STATES MAY BE .

IT EMERGES MOREOVER FROM THE FILE TRANSMITTED BY THE CENTRALE RAAD THAT THE QUESTION RAISED REFERS TO THE CASE OF A WORKER, WHO, AFTER HAVING BEEN SUBJECT TO THE NETHERLANDS SOCIAL SECURITY SYSTEM, WAS AFFILIATED TO THE SOCIAL SECURITY SYSTEM OF ANOTHER MEMBER STATE AT THE POINT WHEN THE AWW ENTERED INTO FORCE, SO THAT THIS LATTER LAW WOULD STILL HAVE APPLIED TO HIM, IF HE HAD NOT BEEN A MIGRANT WORKER .

ALTHOUGH THE SAID REGULATIONS AND ARTICLE 51 OF THE TREATY, READ TOGETHER, IMPLY THAT IT IS IMPOSSIBLE FOR A WORKER TO BE DEPRIVED OF HIS ENTITLEMENT TO SOCIAL SECURITY BECAUSE HE MOVES WITHIN THE COMMUNITY, IT DOES NOT BY ANY MEANS FOLLOW FROM THIS THAT HE MUST OF NECESSITY SUCCEED, BY THE MERE INTERPLAY OF VARIOUS NATIONAL LEGISLATIVE SYSTEMS IN SUCCESSION TO ONE ANOTHER, IN OBTAINING A HIGHER AGGREGATE SUM IN BENEFITS THAN WOULD ACCRUE TO HIM UNDER ARTICLE 28(3 ).

SINCE THE MIGRANT WORKER'S POSITION IS GOVERNED BY THE PROVISIONS OF ARTICLES 27 AND 28, ANNEX G(III)(B)(B ) SHOULD BE INTERPRETED IN THE LIGHT OF THE FOREGOING CONSIDERATIONS . ALTHOUGH THIS PROVISION APPEARS TO RELATE ONLY TO ESTABLISHING THE AMOUNT OF BENEFIT, IT NEVERTHELESS REMAINS THE FACT THAT IT WAS ADOPTED NOT ONLY WITH A VIEW TO THE APPLICATION OF ARTICLE 28, WHICH REFERS TO THE CALCULATION OF THE AMOUNT OF BENEFITS, BUT ALSO, AND EXPRESSLY, WITH A VIEW TO THE APPLICATION OF ARTICLE 27, WHICH ONLY RELATES TO THE ACQUISITION OF RIGHTS . THIS DEFECT MAY BE EXPLAINED IN THE FIRST PLACE BY THE FACT THAT REGULATION NO 3 DISTINGUISHES MUCH LESS CLEARLY THAN THE WORDING OF THE PRELIMINARY QUESTION SUPPOSES BETWEEN THE ACQUISITION OF THE RIGHT TO BENEFIT AND THE ASCERTAINMENT OF THE AMOUNT OF BENEFIT . MOREOVER ACCOUNT MUST BE TAKEN OF THE SUPPLEMENTARY NATURE OF THE PROVISIONS OF ANNEX G; ON THE BASIS OF THE SUPPOSEDLY CLEAR APPLICATION OF ARTICLES 27 AND 28 TO THE AWW, THOSE PROVISIONS ARE LIMITED TO EXTENDING THE CONCEPT OF INSURANCE PERIODS UNDER THE AWW TO THE PERIODS COMPLETED UNDER THE PREVIOUS INSURANCE SYSTEM . IMPLEMENTING PROVISIONS, SUCH AS ANNEX G, CANNOT DEROGATE FROM THE PRINCIPAL PROVISIONS WHICH THEY ARE INTENDED TO SUPPLEMENT . CONSEQUENTLY, THESE PROVISIONS CANNOT FORM A BASIS FOR DENYING THE ACQUISITION IN ACCORDANCE WITH ARTICLE 27 OF A RIGHT TO BENEFIT UNDER THE AWW .

FURTHERMORE, THERE WOULD BE DISCRIMINATION AGAINST THE SURVIVORS OF A WORKER WHO WAS SUCCESSIVELY SUBJECT TO NETHERLANDS LEGISLATION PRIOR TO THE AWW AND TO THE LEGISLATION OF ANOTHER MEMBER STATE, BUT WHO WAS NOT REGARDED AS INSURED UNDER THE AWW, ON THE GROUND THAT HE HAD DIED AT A TIME WHEN HE WAS RESIDING AND WORKING IN THAT OTHER STATE .

THE REPLY TO THE CENTRALE RAAD VAN BEROEP MUST BE THAT THE PROVISIONS OF ANNEX G(III)(B)(B ) CONCERNING THE ASCERTAINMENT OF THE AMOUNT OF BENEFIT PAYABLE UNDER THE AWW APPLIES IN ALL CASES IN WHICH ARTICLE 27 GIVES RISE TO A RIGHT TO BENEFIT ON THE BASIS OF THE MAINTENANCE OR RECOVERY OF RIGHTS ACQUIRED UNDER A PREVIOUS SYSTEM .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . 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 CENTRALE RAAD VAN BEROEP THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY A DECISION OF THAT COURT OF 16 FEBRUARY 1966, HEREBY RULES :

1 . THE PROVISIONS OF ANNEX G(III)(B)(B ) TO REGULATION NO 3 ARE ALSO APPLICABLE IN DECIDING WHETHER THERE IS, IN ACCORDANCE WITH ARTICLE 27 OF REGULATION NO 3, A RIGHT TO BENEFIT UNDER THE GENERAL WIDOWS' AND ORPHANS' INSURANCE LAW OF THE NETHERLANDS;

2 . THE DECISION ON COSTS IN THE PRESENT PROCEEDINGS IS A MATTER FOR THE CENTRALE RAAD VAN BEROEP .