61980J0099

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - WORKER - CONCEPT

( REGULATION OF THE COUNCIL NO 1408/71 , ARTS 1 ( A ) AND 2 ( 1 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - FAMILY ALLOWANCES - OLD-AGE PENSIONERS - COMMUNITY SCHEME - MATTERS COVERED - OLD-AGE BENEFITS GRANTED TO SELF-EMPLOYED WORKERS ON THE BASIS OF NATIONAL LEGISLATION ALONE - EXCLUSION

( REGULATION OF THE COUNCIL NO 1408/71 , ART . 77 )

1 . A PERSON WHO HAS BEEN COMPULSORILY INSURED AS A SELF-EMPLOYED WORKER IN ONE MEMBER STATE BUT WHO IS COMPULSORILY INSURED AS AN EMPLOYED WORKER IN ANOTHER MEMBER STATE MUST BE CONSIDERED AS A WORKER WITHIN THE MEANING OF ARTICLES 1 ( A ) AND 2 ( 1 ) OF REGULATION NO 1408/71 THROUGHOUT THE COMMUNITY .

2 . ARTICLE 77 OF REGULATION NO 1408/71 , WHICH GOVERNS FAMILY ALLOWANCES FOR OLD-AGE PENSIONERS AND INCREASES IN OR SUPPLEMENTS TO SUCH PENSIONS IN RESPECT OF THEIR DEPENDENT CHILDREN MUST BE INTERPRETED TO MEAN THAT THE EXPRESSION ' ' PENSIONS FOR OLD AGE ' ' DOES NOT COVER OLD-AGE BENEFITS GRANTED IN A MEMBER STATE TO A PERSON WHO WAS INSURED THERE UNDER A SOCIAL SECURITY SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS IF SUCH BENEFITS ARE BASED ON THE LEGISLATION OF THAT MEMBER STATE ALONE WITHOUT THE APPLICATION OF THE PROVISIONS OF THE SAID REGULATION .

IN CASE 99/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE NATIONAL INSURANCE COMMISSIONER , LONDON , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE HIM BETWEEN

MAURICE GALINSKY

AND

INSURANCE OFFICER

ON THE INTERPRETATION OF ARTICLES 1 ( A ) AND 77 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ), AND ON THE VALIDITY OF ARTICLE 6 OF THE SAID REGULATION ,

1 BY AN ORDER OF 14 MARCH 1980 WHICH WAS RECEIVED AT THE COURT ON 17 MARCH 1980 THE NATIONAL INSURANCE COMMISSIONER REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS AS TO THE INTERPRETATION OF ARTICLES 1 AND 77 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) ON THE ONE HAND AND , ON THE OTHER , AS TO THE VALIDITY OF ARTICLE 6 THEREOF .

2 THE CASE BEFORE THE NATIONAL INSURANCE COMMISSIONER CONCERNS THE REFUSAL OF THE COMPETENT BRITISH SOCIAL SECURITY INSTITUTION TO GRANT TO A RECIPIENT OF AN OLD-AGE PENSION , THE APPELLANT IN THE MAIN PROCEEDINGS , INCREASES IN THAT PENSION IN RESPECT OF HIS DEPENDENT CHILDREN .

3 THE OLD-AGE PENSION IN QUESTION IS AT THE FULL RATE AND THE RECIPIENT IS ENTITLED TO IT UNDER BRITISH LEGISLATION ALONE . THE RECIPIENT WORKED IN THE UNITED KINGDOM AS A SELF-EMPLOYED PERSON UNTIL 1964 AND WAS COVERED BY COMPULSORY INSURANCE FROM 1948 TO 1964 UNDER THE BRITISH NATIONAL INSURANCE SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS . AFTER EMIGRATING TO THE NETHERLANDS IN 1964 HE CONTINUED TO PAY CONTRIBUTIONS TO THE BRITISH SCHEME ON A VOLUNTARY BASIS AS A NON-EMPLOYED PERSON .

4 FROM 1964 HE WAS COMPULSORILY INSURED AS AN EMPLOYED PERSON UNDER THE NETHERLANDS SOCIAL SECURITY SCHEME . WHEN HE ATTAINED THE AGE OF 65 HE QUALIFIED FOR AN OLD-AGE PENSION IN THE NETHERLANDS UNDER THE GENERAL LAW ON OLD AGE ( ALGEMENE OUDERDOMSWET ) TOGETHER WITH THE FAMILY ALLOWANCES GRANTED TO THE RECIPIENTS OF THAT PENSION . AFTER THE ACCESSION OF THE UNITED KINGDOM TO THE COMMUNITIES THE PENSION IN QUESTION WAS SUPPLEMENTED UNDER REGULATION NO 1408/71 SINCE THE COMPETENT NETHERLANDS INSTITUTION TOOK INTO CONSIDERATION NOTIONAL INSURANCE PERIODS WHICH , UNDER NETHERLANDS LEGISLATION ALONE , AFFECT ONLY NETHERLANDS NATIONALS RESIDING IN THE NETHERLANDS .

5 IN SUPPORT OF HIS CLAIM BEFORE THE BRITISH AUTHORITIES MR GALINSKY ARGUED THAT THE APPLICABLE BRITISH LEGISLATION MAKES PROVISION FOR INCREASES IN THE RETIREMENT PENSION IN RESPECT OF DEPENDENT CHILDREN ; IN THAT RESPECT IT LAYS DOWN THE CONDITION THAT THE CHILDREN IN QUESTION SHOULD BE WITHIN UNITED KINGDOM TERRITORY ; HOWEVER , THAT CONDITION OF RESIDENCE WAS ABOLISHED BY A RECIPROCAL CONVENTION ON SOCIAL SECURITY CONCLUDED BETWEEN THE UNITED KINGDOM AND THE KINGDOM OF THE NETHERLANDS .

6 THE COMPETENT BRITISH INSTITUTION AND THE LOCAL TRIBUNAL , HOWEVER , CONSIDERED THAT THE APPELLANT WAS COVERED BY REGULATION NO 1408/71 AND THAT ARTICLE 77 THEREOF MEANT THAT IN THIS CASE THE FAMILY ALLOWANCES PROVIDED FOR THE RECIPIENT OF AN OLD-AGE PENSION AND THE INCREASES TO THAT PENSION IN RESPECT OF THE RECIPIENT ' S DEPENDENT CHILDREN WERE GOVERNED BY NETHERLANDS LEGISLATION . ACCORDING TO ARTICLE 6 OF THE REGULATION , THE PROVISIONS OF ARTICLE 77 REPLACE THE PROVISIONS OF THE BILATERAL CONVENTION RELIED UPON BY MR GALINSKY .

7 IN ORDER TO RESOLVE THIS PROBLEM THE NATIONAL INSURANCE COMMISSIONER SUBMITTED THE FOLLOWING PRELIMINARY QUESTIONS :

' ' I - WHETHER IN RELATION TO SOCIAL SECURITY BENEFITS PROVIDED UNDER THE LEGISLATION OF A MEMBER STATE A PERSON WHO HAS BEEN COMPULSORILY INSURED AS A SELF-EMPLOYED PERSON ( BUT NOT AS AN EMPLOYED PERSON ) IN THAT MEMBER STATE SHOULD BE REGARDED AS A WORKER WITHIN THE MEANING IN ARTICLE 1 ( A ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL IN THAT MEMBER STATE BY REASON EITHER :

( A ) THAT HE IS A WORKER UNDER THE LEGISLATION OF SOME OTHER MEMBER STATE ; OR

( B)(IF THE ANSWER TO ( A ) IS NEGATIVE ) THAT HE HAS BEEN SO INSURED AS SELF-EMPLOYED UNDER A SOCIAL SECURITY SCHEME FOR ONE OR MORE OF THE CONTINGENCIES COVERED BY A SOCIAL SECURITY SCHEME FOR EMPLOYED , SELF-EMPLOYED AND NON-EMPLOYED PERSONS .

II - ( IF THE ANSWER TO EITHER QUESTION I ( A ) OR I ( B ) IS AFFIRMATIVE ) WHETHER A PERSON WHO HAS BEEN INSURED AS A SELF-EMPLOYED PERSON ( BUT NOT AS AN EMPLOYED PERSON ) IN A MEMBER STATE SHOULD IN RELATION TO A PENSION PAYABLE UNDER THE LEGISLATION OF THAT MEMBER STATE BE REGARDED AS A PENSIONER FOR PURPOSES OF ARTICLE 77 OF THE SAID REGULATION BY REASON THAT HE IS OR HAS BEEN A WORKER FOR PURPOSES OF THAT REGULATION AND/OR BY REASON OF THE FACT THAT HIS PENSION ( THOUGH UNAFFECTED IN THE COMPETENT STATE BY THE PROVISIONS OF THAT REGULATION ) HAS BEEN SUBJECT TO REVISION IN ANOTHER MEMBER STATE UNDER THAT LEGISLATION .

III - ( IF THE ANSWERS TO QUESTION I ( A ) OR ( B ) AND TO QUESTION II ARE AFFIRMATIVE ) WHETHER ARTICLE 6 OF THE SAID REGULATION IS VALID IN SO FAR AS IT OPERATES TO DEPRIVE A PERSON OF ANY RIGHT TO BENEFIT DERIVED FROM A PROVISION OF NATIONAL LAW OF A MEMBER STATE GIVING EFFECT TO A RECIPROCAL CONVENTION WITH ONE OR MORE OTHER MEMBER STATES . ' '

8 THE FIRST QUESTIONS CONCERN THE PERSONS COVERED BY REGULATION NO 1408/71 WHILST THE SECOND QUESTION RELATES TO THE MATTERS COVERED .

9 WITH REGARD TO THE PERSONS COVERED BY THE REGULATION IT MUST BE OBSERVED THAT A PERSON WHO HAS BEEN COMPULSORILY INSURED AS A SELF-EMPLOYED WORKER IN ONE MEMBER STATE BUT WHO IS COMPULSORILY INSURED AS AN EMPLOYED PERSON IN ANOTHER MEMBER STATE MUST BE CONSIDERED AS A WORKER WITHIN THE MEANING OF ARTICLES 1 ( A ) AND 2 ( 1 ) OF REGULATION NO 1408/71 THROUGHOUT THE COMMUNITY . NEVERTHELESS THAT CIRCUMSTANCE DOES NOT NECESSARILY IMPLY THAT THE BENEFITS GRANTED IN THE FIRST MEMBER STATE COME WITHIN THE MATTERS COVERED BY THAT REGULATION AND THAT THE COMPETENT INSTITUTIONS OF THAT MEMBER STATE ARE THEREBY REQUIRED TO APPLY ARTICLE 77 .

10 THE BENEFITS REFERRED TO BY ARTICLE 77 ARE IN PARTICULAR FAMILY ALLOWANCES FOR PERSONS RECEIVING PENSIONS FOR OLD AGE AND INCREASES OR SUPPLEMENTS TO SUCH PENSIONS IN RESPECT OF THE CHILDREN OF SUCH PENSIONERS .

11 IN THOSE CIRCUMSTANCES THE SECOND QUESTION RAISES THE PROBLEM WHETHER THE EXPRESSION ' ' PENSIONS FOR OLD AGE ' ' EMPLOYED IN ARTICLE 77 COVERS AN OLD-AGE BENEFIT GRANTED IN A MEMBER STATE TO A PERSON WHO WAS INSURED THERE UNDER A SOCIAL SECURITY SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS UNDER THE LEGISLATION OF THAT MEMBER STATE ALONE AND WITHOUT REFERENCE TO THE PROVISIONS OF REGULATION NO 1408/71 .

12 IT SHOULD BE OBSERVED FIRST OF ALL THAT REGULATION NO 1408/71 APPLIES , ACCORDING TO THE RECITALS IN THE PREAMBLE THERETO , TO NATIONALS OF MEMBER STATES INSURED UNDER SOCIAL SECURITY SCHEMES FOR EMPLOYED PERSONS . IT FOLLOWS IN ADDITION FROM THE PROVISIONS OF THAT REGULATION AS A WHOLE , AND IN PARTICULAR FROM THE GENERAL PROVISIONS , THAT THE RULES ON THE COORDINATION OF NATIONAL LEGISLATIVE SYSTEMS RELATING TO SOCIAL SECURITY FOR WHICH IT MAKES PROVISION DO NOT COVER BENEFITS GRANTED UNDER COMPULSORY INSURANCE SCHEMES APPLICABLE TO SELF-EMPLOYED PERSONS AS SUCH .

13 THE APPELLANT IN THE MAIN PROCEEDINGS CLAIMED THAT THE COURT , IN ITS PREVIOUS CASE-LAW , HAS ACCEPTED THAT INSURANCE PERIODS COMPLETED UNDER THE SOCIAL SECURITY SCHEME APPLICABLE TO EMPLOYED PERSONS IN ONE MEMBER STATE MAY BE TAKEN INTO CONSIDERATION FOR THE ACQUISITION OF A RIGHT TO BENEFITS TO BE GRANTED TO SELF-EMPLOYED PERSONS IN ANOTHER MEMBER STATE . IN FACT THE COURT HAS HELD , IN PARTICULAR IN ITS JUDGMENT OF 27 OCTOBER 1971 ( CASE 23/71 JANSSEN ( 1971 ) ECR 859 ), THAT THE OBJECT OF ARTICLES 48 TO 51 WOULD NOT BE ACHIEVED BUT WOULD BE DISREGARDED IF THE INSURANCE PERIODS COMPLETED BY A WORKER IN ACCORDANCE WITH THE LEGISLATION OF ONE MEMBER STATE WERE , AS FAR AS HE WAS CONCERNED , TO BE LOST IF , IN TAKING ADVANTAGE OF THE FREEDOM OF MOVEMENT SECURED FOR HIM , HE CHANGED HIS PLACE OF WORK AND THUS BECAME SUBJECT TO THE SOCIAL SECURITY SYSTEM OF ANOTHER MEMBER STATE .

14 SUCH A SITUATION DOES NOT , HOWEVER , CORRESPOND TO THE POSITION IN THIS CASE . THIS CASE CONCERNS A WORKER WHO HAS EXERCISED HIS RIGHT TO FREEDOM OF MOVEMENT AND HAS ACQUIRED , AS AN EMPLOYED PERSON IN THE MEMBER STATE IN WHICH HE HAS ESTABLISHED HIMSELF AND HIS FAMILY , AN OLD-AGE PENSION TOGETHER WITH FAMILY ALLOWANCES UNDER THE LEGISLATION OF THAT MEMBER STATE , AND THEN CLAIMS IN ANOTHER MEMBER STATE THE RIGHTS WHICH HE HAD PREVIOUSLY ACQUIRED AS A COMPULSORILY INSURED SELF-EMPLOYED PERSON .

15 IN SUCH A CASE THE RIGHTS CLAIMED AS FAMILY ALLOWANCES RELATE TO OLD-AGE BENEFITS WHICH ARE AVAILABLE UNDER A SOCIAL SECURITY SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS AND NOT TO THE EMPLOYED PERSONS REFERRED TO IN REGULATION NO 1408/71 , AND WHICH MAY BE AWARDED ON THE BASIS OF THE LEGISLATION OF THE RELEVANT MEMBER STATE ALONE WITHOUT THE NEED TO HAVE RECOURSE TO THE MACHINERY PROVIDED FOR BY THAT REGULATION . ACCORDINGLY THE OBJECTIVES OF ARTICLES 48 TO 51 OF THE TREATY ARE IN NO WAY JEOPARDIZED WHEN ANY RIGHTS TO AN INCREASE IN SUCH BENEFITS FOR DEPENDENT CHILDREN ARE DETERMINED IN ACCORDANCE WITH THE NATIONAL LAW OF THE MEMBER STATE IN QUESTION AND NOT IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 77 OF THE REGULATION .

16 IT FOLLOWS THAT IT IS NOT APPROPRIATE IN A CASE SUCH AS THIS TO EXTEND THE CONCEPT OF ' ' PENSIONS FOR OLD AGE ' ' WHICH APPEARS IN ARTICLE 77 IN SUCH A WAY THAT IT INCLUDES PENSIONS ACQUIRED ON THE BASIS OF THE LEGISLATION OF ONE MEMBER STATE ALONE , WHICH IS APPLICABLE TO SELF-EMPLOYED PERSONS .

17 THE REPLY TO THE SECOND QUESTION MUST ACCORDINGLY BE THAT SINCE ARTICLE 77 OF REGULATION NO 1408/71 GOVERNS FAMILY ALLOWANCES FOR OLD-AGE PENSIONERS AND INCREASES IN OR SUPPLEMENTS TO SUCH PENSIONS IN RESPECT OF DEPENDENT CHILDREN IT MUST BE INTERPRETED TO MEAN THAT THE EXPRESSION ' ' PENSIONS FOR OLD AGE ' ' DOES NOT COVER OLD-AGE BENEFITS GRANTED IN A MEMBER STATE TO A PERSON WHO WAS INSURED THERE UNDER A SOCIAL SECURITY SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS IF SUCH BENEFITS ARE BASED ON THE LEGISLATION OF THAT MEMBER STATE ALONE WITHOUT THE APPLICATION OF THE PROVISIONS OF THE SAID REGULATION .

18 THE THIRD QUESTION , WHICH CALLS IN ISSUE THE VALIDITY OF ARTICLE 6 OF REGULATION NO 1408/71 , WAS SUBMITTED ONLY IN CASE THE COURT SHOULD RULE THAT ARTICLE 77 OF THE REGULATION MUST BE APPLIED TO A SITUATION LIKE THAT IN THE PRESENT CASE . IT IS THUS NO LONGER NECESSARY TO REPLY TO IT .

19 THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM , BY THE COUNCIL OF THE EUROPEAN COMMUNITIES AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 NATIONAL COURT , 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 NATIONAL INSURANCE COMMISSIONER BY AN ORDER OF 14 MARCH 1980 , HEREBY RULES :

SINCE ARTICLE 77 OF REGULATION NO 1408/71 GOVERNS FAMILY ALLOWANCES FOR OLD-AGE PENSIONERS AND INCREASES IN OR SUPPLEMENTS TO SUCH PENSIONS IN RESPECT OF DEPENDENT CHILDREN IT MUST BE INTERPRETED TO MEAN THAT THE EXPRESSION ' ' PENSIONS FOR OLD AGE ' ' DOES NOT COVER OLD-AGE BENEFITS GRANTED IN A MEMBER STATE TO A PERSON WHO WAS INSURED THERE UNDER A SOCIAL SECURITY SCHEME APPLICABLE TO SELF-EMPLOYED PERSONS IF SUCH BENEFITS ARE BASED ON THE LEGISLATION OF THAT MEMBER STATE ALONE WITHOUT THE APPLICATION OF THE PROVISIONS OF THE SAID REGULATION .