61976J0109

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - ' PRESENT OR FUTURE ' NATIONAL RULES WITHIN THE MEANING OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71 - CONCEPT - PROVISIONS IN FORCE BEFORE THE ADOPTION OF THE COMMUNITY REGULATIONS - EXCLUSION NOT PERMISSIBLE

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - PERIODS OF INSURANCE COMPLETED - LEGISLATION IN FORCE AT THE TIME WHEN THE WORKER WAS EMPLOYED - CESSATION BEFORE THE ADOPTION OF THE COMMUNITY RULES - DIFFERENT LEGISLATION IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES - RIGHT TO BENEFITS

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 40 , ARTICLE 45 ( 3 ))

1 . THE STRUCTURE OF THE SYSTEM OF HARMONIZATION OF NATIONAL LEGISLATION ESTABLISHED BY THE REGULATION IS BASED UPON THE PRINCIPLE THAT A WORKER MUST NOT BE DEPRIVED OF THE RIGHT TO BENEFITS MERELY BECAUSE OF AN ALTERATION IN THE TYPE OF LEGISLATION IN FORCE IN A MEMBER STATE . THEREFORE THE CONCEPT OF ' PRESENT OR FUTURE ' MEASURES WITHIN THE MEANING OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71 MUST NOT BE INTERPRETED IN SUCH A WAY AS TO EXCLUDE MEASURES WHICH WERE PREVIOUSLY IN FORCE BUT HAD CEASED TO BE SO WHEN THE SAID COMMUNITY REGULATIONS WERE ADOPTED .

2 . THE CONCEPT OF ' LEGISLATION ' CONTAINED IN ARTICLE 45 ( 3 ) MUST BE WIDELY INTERPRETED SO AS TO REFER BOTH TO MEASURES IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES AND TO MEASURES IN FORCE AT THE TIME WHEN THE WORKER WAS SUBJECT TO THE LEGISLATION . FOR THE ACQUISITION OF A RIGHT TO BENEFITS ON THE BASIS OF ARTICLE 40 OF REGULATION NO 1408/71 PAYABLE BY AN INSTITUTION OF A MEMBER STATE REFERRED TO AT THE BEGINNING OF ARTICLE 45 ( 3 ) IT IS IN PRINCIPLE SUFFICIENT THAT A WORKER WHO IS SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE AT THE TIME WHEN THE RISK INSURED AGAINST MATERIALIZES OR , IF THIS IS NOT THE CASE , WHO HAS A RIGHT TO BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , CAN ESTABLISH INSURANCE PERIODS OR , AT LEAST , PERIODS OF EMPLOYMENT AND/OR PERIODS TREATED AS SUCH COMPLETED UNDER A LEGISLATION WHICH , ALTHOUGH IN FORCE AT THE TIME WHEN THE WORKER WAS EMPLOYED , HAD CEASED TO BE IN FORCE BEFORE THE ADOPTION OF REGULATION NO 1408/71 , EVEN IF THAT LEGISLATION WAS OF A DIFFERENT TYPE FROM THAT WHICH IS IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES .

IN CASE 109/76

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

MRS M . BLOTTNER , BERLIN

AND

BESTUUR DER NIEUWE ALGEMENE BEDRIJFSVERENIGING , AMSTERDAM

ON THE INTERPRETATION OF ARTICLES 40 , 45 AND 46 OF REGULATION NO 1408/71 AND OF ANNEX V THERETO ,

1 BY LETTER OF 19 NOVEMBER 1976 WHICH ARRIVED AT THE COURT REGISTRY ON 22 NOVEMBER 1976 THE RAAD VAN BEROEP , AMSTERDAM , SUBMITTED , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A NUMBER OF PRELIMINARY QUESTIONS ON THE INTERPRETATION OF ARTICLES 40 , 45 AND 46 AND OF ANNEX V TO 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THOSE QUESTIONS HAVE BEEN SUBMITTED WITHIN THE FRAMEWORK OF A DISPUTE RELATING TO THE REFUSAL BY THE COMPETENT NETHERLANDS INSTITUTION TO PAY AN INVALIDITY PENSION TO A GERMAN NATIONAL WHO PURSUED ACTIVITIES AS AN EMPLOYED PERSON IN THE NETHERLANDS FROM 1928 TO 1940 .

3 THE PERSON CONCERNED RETURNED TO GERMANY IN 1940 WHERE SHE WORKED UNTIL 1946 AND THEREAFTER HAD NO FURTHER GAINFUL OCCUPATION .

4 IN 1973 SHE SUFFERED AN ACCIDENT WHICH RENDERED HER UNFIT FOR WORK AND THE BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( THE FEDERAL INSURANCE OFFICE FOR EMPLOYED PERSONS ) GRANTED HER A PENSION FROM 1 JANUARY 1974 .

5 THE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( NEW GENERAL TRADE ASSOCIATION ) RECOGNIZED THAT THE PERSON CONCERNED WAS IN PRINCIPLE ENTITLED TO CLAIM BENEFITS UNDER THE NETHERLANDS LEGISLATION , PURSUANT TO ARTICLE 45 ( 3 ) OF REGULATION NO 1408/71 , BUT REFUSED TO PAY THEM ON THE GROUNDS THAT , SINCE SHE WAS NOT IN EMPLOYMENT AT THE TIME OF THE ACCIDENT , THE PERSON CONCERNED DID NOT FULFIL THE MATERIAL CONDITION AS TO INSURANCE PRESCRIBED BY THE LAW ON INSURANCE AGAINST INCAPACITY FOR WORK ( WET OP DE ARBEIDSON- GESCHIKTHEIDSVERZEKERING , HEREINAFTER REFERRED TO AS ' THE WAO ' ) IN ORDER FOR HER TO ACQUIRE A RIGHT TO BENEFIT IN THE NETHERLANDS AND THAT FURTHERMORE HER DEGREE OF INCAPACITY TO CARRY OUT HER USUAL WORK ( HOUSEHOLD DUTIES ) WAS LESS THAN THE MINIMUM RATE REQUIRED BY THE WAO .

6 THE FIRST QUESTION ASKS WHETHER , ' FOR THE ACQUISITION OF A RIGHT TO BENEFITS ON THE BASIS OF ARTICLE 40 OF REGULATION ( EEC ) NO 1408/71 , PAYABLE BY AN INSTITUTION OF A MEMBER STATE REFERRED TO AT THE BEGINNING OF ARTICLE 45 ( 3 ) OF THAT REGULATION - HAVING REGARD TO THE BACKGROUND TO THE ADOPTION OF THE LATTER PROVISION - IT IS SUFFICIENT THAT A WORKER WHO IS SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE AT THE TIME WHEN THE RISK WHICH WAS IN PRINCIPLE INSURED AGAINST MATERIALIZES OR , IF THIS IS NOT THE CASE , WHO HAS A RIGHT TO BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , CAN ESTABLISH ONLY INSURANCE PERIODS OR PERIODS OF EMPLOYMENT AND/OR PERIODS TREATED AS SUCH COMPLETED BY HIM DURING THE PERIOD OF VALIDITY OF THE LEGISLATION OR OF A LEGAL PROVISION OF THE FIRSTMENTIONED MEMBER STATE WHICH WAS NOT LEGISLATION WITHIN THE MEANING OF THE BEGINNING OF ARTICLE 45 ( 3 ) AND WHICH , ON THE DATE REFERRED TO IN ARTICLE 94 ( 2 ), WAS NO LONGER EXISTING LEGISLATION WITHIN THE MEANING OF ARTICLE 1 ( J ) OF THAT REGULATION , ACCOUNT BEING TAKEN OF THE LAST SENTENCE OF ARTICLE 45 ( 3 ) ( THEREFORE ALTHOUGH HE WAS NEVER SUBJECT TO THE LEGISLATION OF THE FIRSTMENTIONED MEMBER STATE WITHIN THE MEANING OF THE BEGINNING OF ARTICLE 45 ( 3 )) ' .

7 AT THE TIME WHEN THE APPELLANT IN THE MAIN ACTION BECAME AN INVALID THE NETHERLANDS LEGISLATION WAS OF TYPE A , THAT IS TO SAY LEGISLATION ACCORDING TO WHICH THE AMOUNT OF INVALIDITY BENEFITS IS INDEPENDENT OF THE DURATION OF INSURANCE PERIODS , WHILST AT THE TIME WHEN SHE WORKED IN THE NETHERLANDS THE LEGISLATION HAD BEEN OF TYPE B , THAT IS TO SAY LEGISLATION ACCORDING TO WHICH THE AMOUNT OF BENEFITS DEPENDS ON THE DURATION OF INSURANCE PERIODS .

8 ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT ' A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATIONS OF TWO OR MORE MEMBER STATES , OF WHICH AT LEAST ONE IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ), SHALL RECEIVE BENEFITS UNDER THE PROVISIONS OF CHAPTER 3 , WHICH SHALL APPLY BY ANALOGY . . . '

9 ACCORDING TO THE PROVISIONS OF ARTICLE 1 ( J ) OF THAT REGULATION , ' ' ' LEGISLATION ' ' 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 ) ' .

10 THE QUESTION ARISES WHETHER THE WORDS ' PRESENT OR FUTURE ' EXCLUDE FROM THE SCOPE OF THAT DEFINITION MEASURES WHICH WERE NO LONGER IN FORCE AT THE TIME OF THE ADOPTION OF THE REGULATION IN QUESTION AND OF THE REGULATION TAKEN IN IMPLEMENTATION THEREOF , REGULATION NO 574/72 OF THE COUNCIL OF 29 MARCH 1972 ( OJ , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ), SO THAT THE PROVISIONS OF ARTICLE 40 ( 1 ) ARE NOT APPLICABLE TO A WORKER WHO WAS SUBJECT IN A MEMBER STATE TO MEASURES WHICH CEASED TO BE IN FORCE BEFORE THE ADOPTION OF REGULATION NO 1408/71 , ALTHOUGH HE IS SUBJECT IN ANOTHER MEMBER STATE TO MEASURES WHICH ARE STILL IN FORCE .

11 ARTICLE 51 OF THE TREATY MAKES PROVISION FOR THE ESTABLISHMENT OF A SYSTEM OF SOCIAL SECURITY SECURING FOR MIGRANT WORKERS AGGREGATION , FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES .

12 THE OBJECTIVE OF THAT ARTICLE WOULD NOT BE ATTAINED IF THE WORKER LOST THE STATUS OF AN INSURED PERSON WITHIN THE MEANING OF THE REGULATIONS IN QUESTION SOLELY BECAUSE OF THE FACT THAT , AT THE TIME WHEN THOSE REGULATIONS WERE ADOPTED , THE NATIONAL LEGISLATION IN FORCE AT THE TIME WHEN THE WORKER WAS INSURED HAD BEEN REPLACED BY DIFFERENT LEGISLATION .

13 IT FOLLOWS THAT THE WORDS ' PRESENT OR FUTURE ' MUST NOT BE INTERPRETED IN SUCH A WAY AS TO EXCLUDE MEASURES WHICH WERE PREVIOUSLY IN FORCE BUT HAD CEASED TO BE SO WHEN THE SAID COMMUNITY REGULATIONS WERE ADOPTED .

14 ARTICLE 45 ( 3 ) OF REGULATION NO 1408/71 PROVIDES THAT ' WHERE THE LEGISLATION OF A MEMBER STATE WHICH MAKES THE GRANTING OF BENEFITS CONDITIONAL UPON A WORKER BEING SUBJECT TO ITS LEGISLATION AT THE TIME WHEN THE RISK MATERIALIZES HAS NO REQUIREMENTS AS TO THE LENGTH OF INSURANCE PERIODS EITHER FOR ENTITLEMENT TO OR CALCULATION OF BENEFITS , ANY WORKER WHO IS NO LONGER SUBJECT TO THAT LEGISLATION SHALL FOR THE PURPOSES OF THIS CHAPTER , BE DEEMED TO BE STILL SO SUBJECT AT THE TIME WHEN THE RISK MATERIALIZES , IF . . . HE . . . CAN ESTABLISH A CLAIM TO BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ' .

15 SINCE THE APPELLANT IN THE MAIN ACTION HAS NEVER BEEN SUBJECT TO NETHERLANDS LEGISLATION OF TYPE A , TO WHICH THE ABOVMENTIONED PROVISION REFERS , THE QUESTION ARISES OF THE APPLICATION OF THE LATTER .

16 THE STRUCTURE OF THE SYSTEM OF HARMONIZATION OF NATIONAL LEGISLATION ESTABLISHED BY THE REGULATION IS BASED UPON THE PRINCIPLE THAT A WORKER MUST NOT BE DEPRIVED OF THE RIGHT TO BENEFITS MERELY BECAUSE OF AN ALTERATION IN THE TYPE OF LEGISLATION IN FORCE IN A MEMBER STATE .

17 THIS CONSIDERATION INFERS THAT THE CONCEPT OF ' LEGISLATION ' CONTAINED IN ARTICLE 45 ( 3 ) MUST BE WIDELY INTERPRETED SO AS TO REFER BOTH TO MEASURES IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES AND TO MEASURES IN FORCE AT THE TIME WHEN THE WORKER WAS SUBJECT TO THE LEGISLATION .

18 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT FOR THE ACQUISITION OF A RIGHT TO BENEFITS ON THE BASIS OF ARTICLE 40 OF REGULATION ( EEC ) NO 1408/71 PAYABLE BY AN INSTITUTION OF A MEMBER STATE REFERRED TO AT THE BEGINNING OF ARTICLE 45 ( 3 ) IT IS IN PRINCIPLE SUFFICIENT THAT A WORKER WHO IS SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE AT THE TIME WHEN THE RISK INSURED AGAINST MATERIALIZES OR , IF THIS IS NOT THE CASE , WHO HAS A RIGHT TO BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , CAN ESTABLISH INSURANCE PERIODS OR , AT LEAST , PERIODS OF EMPLOYMENT AND/OR PERIODS TREATED AS SUCH COMPLETED UNDER A LEGISLATION WHICH , ALTHOUGH IN FORCE AT THE TIME WHEN THE WORKER WAS EMPLOYED , HAD CEASED TO BE IN FORCE BEFORE THE ADOPTION OF REGULATION NO 1408/71 , EVEN IF THAT LEGISLATION WAS OF A DIFFERENT TYPE FROM THAT WHICH IS IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES .

19 HAVING REGARD TO THE REPLY TO THE FIRST QUESTION THE SECOND QUESTION IS RENDERED IRRELEVANT .

COSTS

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

21 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 , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE RAAD VAN BEROEP , AMSTERDAM , BY LETTER OF 19 NOVEMBER 1976 , HEREBY RULES :

FOR THE ACQUISITION OF A RIGHT TO BENEFITS ON THE BASIS OF ARTICLE 40 OF REGULATION ( EEC ) NO 1408/71 PAYABLE BY AN INSTITUTION OF A MEMBER STATE REFERRED TO AT THE BEGINNING OF ARTICLE 45 ( 3 ) IT IS IN PRINCIPLE SUFFICIENT THAT A WORKER WHO IS SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE AT THE TIME WHEN THE RISK INSURED AGAINST MATERIALIZES OR , IF THIS IS NOT THE CASE , WHO HAS A RIGHT TO BENEFITS UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , CAN ESTABLISH INSURANCE PERIODS OR , AT LEAST , PERIODS OF EMPLOYMENT AND/OR PERIODS TREATED AS SUCH COMPLETED UNDER A LEGISLATION WHICH , ALTHOUGH IN FORCE AT THE TIME WHEN THE WORKER WAS EMPLOYED , HAD CEASED TO BE IN FORCE BEFORE THE ADOPTION OF REGULATION NO 1408/71 , EVEN IF THAT LEGISLATION WAS OF A DIFFERENT TYPE FROM THAT WHICH IS IN FORCE AT THE TIME WHEN THE RISK MATERIALIZES .