61968J0019

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1 . PROCEDURE - REFERENCES FOR PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS - TASK OF NATIONAL COURTS OR TRIBUNALS

( EEC TREATY, ARTICLE 177 )

2 . PROCEDURE - REFERENCES FOR PRELIMINARY RULING - REFERENCE TO THE COURT BY A NATIONAL COURT OR TRIBUNAL - CONDITIONS

( EEC TREATY, ARTICLE 177 )

3 . PROCEDURE - REFERENCES FOR PRELIMINARY RULING - PARTICIPATION IN PROCEEDINGS - LIMITS

( STATUTE OF COURT OF JUSTICE OF THE EEC, ARTICLE 20 )

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - WAGE - EARNERS - ASSIMILATED WORKERS - CONCEPT - CRAFTSMEN - INSURANCE PERIODS - CONCEPT

( REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS )

5 . SOCIAL SECURITY FOR MIGRANT WORKERS - REGULATION NO 4 - ANNEXES 7 AND 9 - DECLARATORY NATURE

1 . IT IS NOT FOR THE COURT, WITHIN THE FRAMEWORK OF A REFERENCE FOR A PRELIMINARY RULING, TO ASSESS, HAVING REGARD TO THE PROVISIONS OF COMMUNITY LAW, THE CHARACTERISTICS OF THE LEGISLATION OF ONE OF THE MEMBER STATES OF THE COMMUNITY, AS THAT IS RESERVED TO THE COURT MAKING THE REFERENCE, WHOSE DUTY IT IS TO ENSURE THE APPLICATION OF COMMUNITY LAW TO DISPUTES OF WHICH IT IS SEISED .

2 . IT IS NOT FOR THE COURT TO SET ITSELF UP AS JUDGE OF THE JURISDICTION OF NATIONAL COURTS OR TRIBUNALS OR OF THE ADMISSIBILITY OF ACTIONS BROUGHT BEFORE THEM .

THE COURT OF JUSTICE IS VALIDLY SEISED AND OBLIGED TO GIVE JUDGMENT WHEN A NATIONAL COURT OR TRIBUNAL ASKS IT TO GIVE A PRELIMINARY RULING ON ONE OF THE QUESTIONS INDICATED BY ARTICLE 177 OF THE TREATY IF THAT COURT OR TRIBUNAL TAKES THE VIEW THAT A DECISION ON THAT POINT IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT .

3 . THE COURT CANNOT AGREE TO THE PARTICIPATION, IN THE PROCEDURE IN REFERENCES FOR A PRELIMINARY RULING, OF PERSONS OR INSTITUTIONS OTHER THAN THOSE REFERRED TO IN ARTICLE 20 OF ITS STATUTE .

4 . WHEN, AS A RESULT OF THE EFFECT OF NATIONAL LEGISLATION, THE PROVISIONS OF A SOCIAL SECURITY SCHEME ORGANIZED FOR THE BENEFIT OF THE GENERALITY OF WORKERS ARE EXTENDED TO A CATEGORY OF PERSONS OTHER THAN THE WAGE-EARNERS REFERRED TO BY REGULATION NO 3, SUCH AS CRAFTSMEN, SUCH PERSONS MUST BE CONSIDERED AS ASSIMILATED TO WAGE-EARNERS FOR THE PURPOSE OF THE APPLICATION OF THE REGULATION TO THE EXTENT TO WHICH THEY ARE PROTECTED AGAINST ONE OR MORE IDENTICAL RISKS, WHATEVER MAY BE THE FORMS OR METHODS OF APPLICATION EMPLOYED BY THE NATIONAL LEGISLATURE .

CONTRIBUTION PERIODS COMPLETED IN SUCH CONDITIONS ARE CONTRIBUTION PERIODS WITHIN THE MEANING OF REGULATION NO 3 .

5 . ANNEXES 7 AND 9 OF REGULATION NO 4 HAVE ONLY A DECLARATORY CHARACTER AND THE MENTION OR OMISSION OF A SCHEME OF SOCIAL SECURITY IN THOSE ANNEXES THEREFORE CANNOT MODIFY A LEGAL SITUATION SUCH AS THAT WHICH FOLLOWS FROM THE PROVISIONS OF REGULATION NO 3 IN CONJUNCTION WITH THE NATIONAL LEGISLATIVE SYSTEMS REFERRED TO BY THAT REGULATION .

IN CASE 19/68

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY BY THE SOZIALGERICHT ( SOCIAL COURT ), AUGSBURG, ( 6TH CHAMBER ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GIOVANNI DE CICCO, CRAFTSMAN, RESIDING AT VILLA SANTA MARIA, PROVINCE OF CHIETI, ITALY,

AND

LANDESVERSICHERUNGSANSTALT SCHWABEN, AUGSBURG,

ON THE INTERPRETATION OF ARTICLES 1(P ), 24, 27 ET SEQ . OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS,

P . 478

BY ORDER OF 5 AUGUST 1968, WHICH REACHED THE COURT REGISTRY ON 7 AUGUST 1968, THE SOZIALGERICHT, AUGSBURG, BY VIRTUE OF ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, REFERRED TO THE COURT THE QUESTION WHETHER PERIODS OF CONTRIBUTION TO CRAFTSMEN'S INSURANCE ( SPECIAL SECTION OF THE INPS ) COMPLETED IN ITALY ARE INSURANCE PERIODS WITHIN THE MEANING OF ARTICLES 1(P ), 24, 27 ET SEQ . OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .

IT IS NOT FOR THE COURT, WITHIN THE FRAMEWORK OF THIS PROCEDURE, TO ASSESS, HAVING REGARD TO THE PROVISIONS OF COMMUNITY LAW WHICH HAVE BEEN QUOTED, THE CHARACTERISTICS OF THE LEGISLATION OF ONE OF THE MEMBER STATES OF THE COMMUNITY, AS THAT TASK IS RESERVED TO THE COURT MAKING THE REFERENCE, WHOSE DUTY IT IS TO ENSURE THE APPLICATION OF COMMUNITY LAW TO THE DISPUTE OF WHICH IT IS SEISED .

HOWEVER, THE QUESTION THUS PUT RELATES IN SUBSTANCE TO THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 CONCERNING THE AGGREGATION OF PERIODS OF CONTRIBUTION TO A CRAFTSMEN'S INSURANCE SCHEME AND OF PERIODS COMPLETED UNDER A GENERAL SOCIAL INSURANCE SCHEME WITH A VIEW TO THE ACQUISITION OF A RIGHT TO AN INVALIDITY PENSION .

A - THE JURISDICTION OF THE COURT

THE LANDESVERSICHERUNGSANSTALT SCHWABEN, THE DEFENDANT IN THE MAIN ACTION, DISPUTES THE ADMISSIBILITY OF THE QUESTION REFERRED TO THE COURT BY REASON OF AN ALLEGED WANT OF JURISDICTION ON THE PART OF THE COURT MAKING THE REFERENCE AND THE ABSENCE OF ANY LEGAL INTEREST REQUIRING PROTECTION ON THE PART OF THE APPLICANT IN THE MAIN ACTION .

THESE OBJECTIONS CONCERN EXCLUSIVELY THE JURISDICTION OF THE COURT MAKING THE REFERENCE AND THE ADMISSIBILITY OF THE ACTION WHICH HAS BEEN COMMENCED BEFORE IT .

IT IS NOT FOR THE COURT OF JUSTICE TO APPROPRIATE TO ITSELF AN ASSESSMENT OF THESE QUESTIONS, THE SOLUTION OF WHICH IS A MATTER FOR NATIONAL COURTS .

THE COURT OF JUSTICE IS VALIDLY SEISED OF THE MATTER AND OBLIGED TO GIVE JUDGMENT WHEN A NATIONAL COURT OR TRIBUNAL ASKS IT TO GIVE A PRELIMINARY RULING ON ONE OF THE QUESTIONS INDICATED BY ARTICLE 177 OF THE TREATY IF THAT COURT OR TRIBUNAL TAKES THE VIEW THAT A DECISION ON THAT POINT IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT .

P . 479

THE OBJECTION RAISED BY THE DEFENDANT IN THE MAIN ACTION MUST THEREFORE BE DISMISSED .

B - WHETHER THE ITALIAN SOCIAL SECURITY INSTITUTION SHOULD BE MADE A PARTY

THE DEFENDANT IN THE MAIN ACTION REQUESTS THE COURT AS A SUBSIDIARY POINT TO SUMMON THE ITALIAN SOCIAL SECURITY INSTITUTION COMPETENT UNDER ARTICLES 30 ET SEQ . OF REGULATION NO 4 TO DEAL WITH THE APPLICATION FOR BENEFITS CONCERNING THE APPLICANT IN THE MAIN ACTION .

IT POINTS OUT ON THIS SUBJECT THAT A DIFFERENCE OF VIEW EXISTS BETWEEN THIS INSTITUTION, IN CORRESPONDENCE WITH THE RELEVANT GERMAN INSTITUTION, AND THE ITALIAN GOVERNMENT AS CAN BE SEEN FROM THE ATTITUDE TAKEN BY THE LATTER IN THE PRESENT PROCEEDINGS .

IN ACCORDANCE WITH ARTICLE 20 OF THE STATUTE OF THE COURT, PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY ONLY INVOLVE AN ENTITLEMENT FOR THE PARTIES TO THE MAIN ACTION, THE MEMBER STATES, THE COMMISSION AND, WHERE APPROPRIATE, THE COUNCIL, TO SUBMIT STATEMENTS OF CASE OR WRITTEN OBSERVATIONS TO THE COURT .

IN THE APPLICATION OF THIS PROVISION THE ITALIAN STATE HAS MADE KNOWN ITS VIEW ON THE SCOPE OF ITALIAN LAW WITH REGARD TO THE COMMUNITY RULES REFERRED TO IN THE QUESTION PUT BY THE SOZIALGERICHT, AUGSBURG .

THE COURT CANNOT AGREE TO THE PARTICIPATION IN THE PROCEEDINGS OF PERSONS OR INSTITUTIONS OTHER THAN THOSE REFERRED TO IN ARTICLE 20 OF ITS STATUTE .

IN THESE CIRCUMSTANCES, THE REQUEST FOR THE SUMMONING OF THE ITALIAN SOCIAL SECURITY INSTITUTION REFERRED TO BY ARTICLES 30 ET SEQ . OF REGULATION NO 4 IS INADMISSIBLE .

C - THE SUBSTANCE OF THE CASE

ARTICLE 51 OF THE TREATY PROVIDES FOR THE ADOPTION OF SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS IN PARTICULAR BY ARRANGING FOR A SYSTEM MAKING IT POSSIBLE TO SECURE FOR MIGRANT WORKERS AMONGST OTHERS ' THE AGGREGATION, FOR THE PURPOSE OF ACQUIRING...THE RIGHT TO BENEFIT...OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES '.

IN CONFORMITY WITH ARTICLE 27(1 ) OF REGULATION NO 3, WHICH IS APPLICABLE BY ANALOGY IN ACCORDANCE WITH ARTICLE 24, INCLUDING ANNEX F, AND ARTICLE 26(1 ) OF THE SAME REGULATION, WHERE AN INSURED PERSON HAS BEEN SUCCESSIVELY OR ALTERNATIVELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES UNDER WHICH INVALIDITY BENEFITS ARE AS A RULE CALCULATED IN RELATION TO THE DURATION OF COMPLETED PERIODS, THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES ARE TO BE AGGREGATED WITH A VIEW TO THE ACQUISITION OF THE RIGHT TO BENEFIT .

P . 480

IN ACCORDANCE WITH ARTICLE 1(P ) OF THE SAME REGULATION THE EXPRESSION ' INSURANCE PERIODS ' COVERS CONTRIBUTION PERIODS OR PERIODS OF EMPLOYMENT AS DEFINED OR RECKONED AS INSURANCE PERIODS IN THE LEGISLATION CONCERNING A CONTRIBUTORY SCHEME UNDER WHICH THEY WERE COMPLETED .

IN ACCORDANCE WITH ARTICLE 1(B ) OF THE SAME REGULATION, THE EXPRESSION ' LEGISLATION ' MEANS ALL LAWS, REGULATIONS AND OTHER ENFORCEABLE PROVISIONS (' DISPOSITIONS STATUTAIRES '), PRESENT AND FUTURE OF EACH MEMBER STATE RELATING TO THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY SET OUT IN ARTICLE 2(1 ) AND ( 2 ) OF THE SAME REGULATION .

BY VIRTUE OF THE LATTER PROVISIONS, THE REGULATION IS APPLICABLE TO ALL SCHEMES OF SOCIAL SECURITY, GENERAL AND SPECIAL, THE PURPOSE OF WHICH IS, AMONGST OTHER THINGS, THE PAYMENT OF INVALIDITY BENEFITS .

ANNEX B TO THE SAME REGULATION IN ITS TURN STATES, AS IS PROVIDED IN ARTICLE 3, THAT THE REGULATION APPLIES, AS FAR AS ITALY IN PARTICULAR IS CONCERNED, TO LEGISLATION RESPECTING INVALIDITY INSURANCE .

FROM ALL THESE RULES READ TOGETHER IT FOLLOWS THAT THE MATERIAL FIELD OF APPLICATION OF REGULATION NO 3 IS DETERMINED ESSENTIALLY ACCORDING TO THAT OF NATIONAL LEGISLATION IN SOCIAL SECURITY MATTERS REFERRED TO BY THE PROVISIONS ABOVEMENTIONED .

THE SCOPE OF REGULATION NO 3 IS SET OUT, AS REGARDS THE PERSONS TO WHOM IT APPLIES, BY ARTICLE 4 WHICH PROVIDES THAT : ' THE PROVISIONS OF THIS REGULATION SHALL APPLY TO WAGE-EARNERS OR ASSIMILATED WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE OF THE MEMBER STATES ... '.

THIS PROVISION IS BASED ON A WIDE CONCEPTION OF THE PERSONS TO WHOM IT APPLIES INASMUCH AS IT SUBJECTS TO THE PROVISIONS OF THE REGULATION NOT ONLY WAGE-EARNERS WITHIN THE STRICT SENSE OF THE WORD BUT IN ADDITION ALL THOSE ASSIMILATED TO SUCH WORKERS .

IN THIS RESPECT ARTICLE 4 FOLLOWS A GENERAL TENDENCY OF THE SOCIAL LAW OF MEMBER STATES TO EXTEND THE BENEFITS OF SOCIAL SECURITY IN FAVOUR OF NEW CATEGORIES OF PERSONS BY REASON OF IDENTICAL RISKS .

HOWEVER, THE EXACT MEASURE OF THIS ASSIMILATION CAN ONLY BE DETERMINED IN TERMS OF THE NATIONAL LEGISLATION TO WHICH THE REGULATION REFERS .

P . 481

SUCH AN ASSIMILATION TAKES PLACE ON EVERY OCCASION ON WHICH, AS A RESULT OF THE EFFECT OF NATIONAL LEGISLATION, THE PROVISIONS OF A GENERAL SCHEME OF SOCIAL SECURITY ARE EXTENDED TO A CATEGORY OF PERSONS OTHER THAN THE WAGE-EARNERS REFERRED TO BY REGULATION NO 3, WHATEVER MAY BE THE FORMS OR METHODS OF APPLICATION EMPLOYED BY THE NATIONAL LEGISLATURE .

CRAFTSMEN MUST THEREFORE BE CONSIDERED AS ASSIMILATED TO WAGE-EARNERS TO THE EXTENT TO WHICH, BY VIRTUE OF THE PROVISIONS OF NATIONAL LEGISLATION, THEY ARE PROTECTED AGAINST ONE OR MORE RISKS BY EXTENSION OF SCHEMES ORGANIZED FOR THE BENEFIT OF THE GENERALITY OF WORKERS .

CONSEQUENTLY CONTRIBUTION PERIODS COMPLETED IN SUCH CONDITIONS ARE CONTRIBUTION PERIODS WITHIN THE MEANING OF ARTICLES 1(P ), 24, 27 ET SEQ . OF REGULATION NO 3 .

THE ABOVE CONCLUSIONS CANNOT BE MODIFIED BY THE EFFECT OF THE PROVISIONS OF REGULATION NO 4 .

GENERALLY SPEAKING, THE PROVISIONS OF THIS REGULATION HAVE THE PURPOSE OF DETERMINING THE METHODS OF APPLICATION AND SUPPLEMENTING THE PROVISIONS OF REGULATION NO 3 .

MORE PARTICULARLY, THE ITEMS SET OUT IN ANNEXES 7 AND 9 TO REGULATION NO 4 HAVE NO EFFECT ON THE ANSWER TO THE QUESTION PUT TO THE COURT IN VIEW OF THE FACT THAT UNDER THE TERMS OF ARTICLE 27(1 ) OF REGULATION NO 3, READ IN CONJUNCTION WITH ARTICLE 2(2 ) THEREOF, THE AGGREGATION OF INSURANCE PERIODS WITH A VIEW TO THE ACQUISITION OF THE RIGHT TO BENEFIT TAKES PLACE WHETHER THE SOCIAL SECURITY SCHEME BY VIRTUE OF WHICH THE PERIODS HAVE BEEN COMPLETED IS REFERRED TO AS A GENERAL OR A SPECIAL SCHEME .

IN ANY EVENT THE SAID ANNEXES HAVE ONLY A DECLARATORY CHARACTER AND THE MENTION OR OMISSION OF A SCHEME OF SOCIAL SECURITY IN THOSE ANNEXES THEREFORE CANNOT MODIFY A LEGAL SITUATION SUCH AS THAT WHICH FOLLOWS FROM THE PROVISIONS OF REGULATION NO 3 IN CONJUNCTION WITH THE NATIONAL LEGISLATIVE SYSTEMS REFERRED TO BY THAT REGULATION .

THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND 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 SOZIALGERICHT, AUGSBURG, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE SOZIALGERICHT, AUGSBURG ( 6TH CHAMBER ) BY ORDER OF 5 AUGUST 1968, HEREBY RULES :

PERIODS OF CONTRIBUTION TO CRAFTSMEN'S INSURANCE ARE INSURANCE PERIODS WITHIN THE MEANING OF ARTICLES 1(P ), 24, 27 ET SEQ . OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS TO THE EXTENT TO WHICH THOSE PERIODS HAVE BEEN COMPLETED BY VIRTUE OF NATIONAL LEGISLATION PROTECTING CRAFTSMEN AGAINST ONE OR MORE RISKS BY EXTENSION OF SCHEMES ORGANIZED FOR THE BENEFIT OF THE GENERALITY OF WAGE EARNERS, WHATEVER MAY BE THE FORMS OR METHODS OF APPLICATION USED FOR THIS PURPOSE BY THE NATIONAL LEGISLATURE;

AND DECLARES :

IT IS FOR THE SOZIALGERICHT, AUGSBURG, TO DECIDE AS TO COSTS IN THESE PROCEEDINGS .