I —

The present case has been referred to this Court by the National Insurance Commissioner, who has jurisdiction in the United Kingdom to give a decision on appeal on certain social security disputes. The Court will once more be led to deal with the situation relating to cash sickness insurance benefits of workers ‘absent from Great Britain’ within the meaning of Regulation No 1408/71.

In contrast to the Brack case on which this Court gave a decision bv judgment of 29 September 1976 ([1976] ECR 1430), the present case concerns a stay or residence of rather a special nature since the person concerned was imprisoned in another Member State.

I shall therefore have to make a foray into the field of social security of prisoners which, if I am not mistaken, has never given rise to a decision by this Court. The Welchner case (judgment of 5 December 1967 [1967] ECR 331) in fact concerned a period of captivity as a prisoner of war.

The main action is between a national of the Republic of Ireland, who is at present resident in England, and the Insurance Officer who represents the British Minister of Health and Social Security.

On 9 January 1973, the Central Criminal Court in Dublin found Mr Kenny guilty of assault on his wife and sentenced him on that account to 12 months' imprisonment with a suspended sentence on condition that he complied with a prohibition preventing him from staying in the Republic of Ireland in the vicinity of his wife's place of residence for two years. He infringed this prohibition on 16 June 1973, was arrested and was committed on 28 June to serve a term of 12 months' imprisonment at Mountjoy Prison.

During the term of his imprisonment Mr Kenny was found to be incapable of work on account of a duodenal ulcer and haematemesis certified even before he was imprisoned and, since his state of health required treatment which could not be administered in the prison or in the prison infirmary, he was transferred on 23 October 1973 to the Mater Hospital which was situated close to the prison but did not form part of it. He stayed there unul 2 November 1973 when he returned to the prison. He was released on 28 March 1974, having obtained remission for good behaviour.

After his release Mr Kenny claimed cash sickness benefits from the English Department of Health and Social Security for the whole period of incapacity on account of his illness, both while he was in prison and while he was in hospital.

It is not known exactly in what profession he was employed but it is established that, after serving in the British Army, the last post which he occupied on 19 June 1973, shortly before the period in respect of which he lodged his application, was in England; nor is it in dispute that during that period he was, within the meaning of Regulation (EEC) No 1408/71 of the Council, subject to the legislation of Great Britain, i.e. of part of the United Kingdom.

The English authorities however refused to grant him cash sickness benefits for that period. The Insurance Officer's argument is as follows: Article 1 (a) (i) of Regulation No 1408/71 provides that for the purpose of that regulation ‘worker’ means, subject to the restrictions set out in Annex V, any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons.

According to Article 1 (c) ‘“competent institution” means: (i) the institution with which the person concerned is insured at the time of the application for benefit …’ Since the applicant was employed as a worker in the United Kingdom until 19 June 1973 the right to sickness benefits which he claimed had to be examined by an institution in the United Kingdom.

Under Article 19 (1) (b), ‘a worker residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entidement to benefits, taking account where appropriate of the provisions of Article 18, shall receive in the State in which he is resident: … (b) cash benefits provided by the competent institution in accordance with the legislation which it administers …’

Under Article 18 (1), ‘the competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of insurance periods shall, to the extent necessary, take account of insurance periods completed under the legislation of any other Member State as if they were periods completed under its own legislation’.

Similarly, Article 22 (1) provides that: ‘A worker who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

Thus a worker who moves within the Community is entitled to cash sickness benefits if he ‘satisfies the conditions of the legislation of the competent State for entitlement to benefits’ and those benefits correspond to those provided by the competent institution ‘in accordance with the legislation which it administers’.

However, section 49 of the National Insurance Act 1965, which was in force at that time and has since been re-enacted in practically identical terms in section 85 (5) of the Social Security Act 1975 provides that:

Such regulations were introduced by Regulation 11 of the General Benefit Regulations 1970, according to which the disqualification does not operate unless a penalty is imposed at the conclusion of criminal proceedings brought against the detainee. Similarly, it does not operate for any period during his sentence in which he is detained at the conclusion of criminal proceedings if during that period he was iiable to be detained in a hospital or similar institution in Great Britain as a person suffering from mental disorder unless, pursuant to any sentence or order for detention made by a court in such proceedings, he has undergone detention by way of a penalty in prison and was removed to hospital or to a similar institution while liable to be detained due to that sentence or order.

Only imprisonment in connexion with an unlawful act or criminal offence leads to the suspension of the right to benefits: there is no suspension in the case of imprisonment for debt, in other words of an order for detention in default of payment.

It will therefore be clear that the nature of the imprisonment or detention, according to the legislation of the United Kingdom, has an effect on the maintenance of the rights to sickness benefits of the insured person. In another connexion, the fact that the person concerned was detained in the prison infirmary or in a hospital separate from the hospital is relevant.

Absence from Great Britain, which was the first reason for refusing him benefits and which is still quoted first and foremost in the Social Security Act 1975, obviously cannot be relied upon with regard to workers of the Member States moving within the Community, by virtue of the very provisions of Articles 18 and 19 of the regulation.

However the competent institution maintains that the expression ‘imprisonment or detention in legal custody’ refers not only to imprisonment but to any detention which is sufficiently connected with criminal proceedings. In particular it concerns detention in hospital or in a similar institution as a result of criminal proceedings.

Moreover, although it is true that the applicant was hospitalized, that occurred during the prison sentence which he was serving and not because he was liable to be detained in a hospital.

Finally, the exclusion from receiving benefits applies to any detention wherever it takes place, not only in Great Britain.

As a result the plaintiff in the main action was refused cash sickness benefits for the period in question on the ground that during the relevant contribution year he was undergoing detention in legal custody.

If I have correctly understood the English system, the mere fact of imprisonment or detention in legal custody involves de piano disqualification from the right to cash benefits in addition to the penalty incurred as a result of Mr Kenny's failure to comply with the local banishment order placed on him. It is therefore a genuine additional penalty.

Of course it will still be for the national court to decide whether the suspended sentence given by the Central Criminal Court, Dublin, constitutes a ‘penalty’ within the meaning of section 49 (1) (b) of the National Insurance Act 1965 and of Regulation 11 of the General Benefit Regulations 1970. Similarly the national court will have to decide whether detention near to a prison may under English law be treated as equivalent to detention in a prison.

However, that court is immediately concerned to know whether the Community rules on the application of social security schemes to employed persons and their families moving within the Community or the fundamental principles upon which those rules are based limit the scope of the English rules to periods of imprisonment or detention in Great Britain, thus making disqualification from benefits arising from imprisonment or detention undergone in another Member State inapplicable to persons who are members of social security schemes or whether, on the contrary, those rules or those Community principles require the court to refer to the provisions of the English regulations.

It was therefore prompted to refer to this Court the following three questions:

II —

The abstract reply which this Court will have to give to those questions might well go beyond the present case; the problem is in fact whether detention, imprisonment or any other fact occurring in a Member State — and not only in the Republic of Ireland, whose system of criminal law is still very close to the English system, although since partition it has displayed certain original features — constitutes a valid ground for disqualification from the right to cash sickness benefits in the other Member States, not only in the United Kingdom, both with regard to a worker and to that worker's wife or husband.

Contrary to the Commission's suggestion, I shall examine the questions in the order in which they have been asked but regrouping the first and third.

1.

It is an established fact that Mr Kenny's incapacity for work preceded his imprisonment, which is hardly astonishing in view of the nature of his illness, and that if he had not gone to Ireland it would have been possible to begin paying him benefits at the end of the ‘qualifying period’. In addition it is an established fact that the applicant was, for at least a proportion of his detention, suffering from the same incapacity as that which he had been acknowledged or which he should have been acknowledged to be suffering from before his imprisonment. Finally, it is not alleged that the fact of his detention made it impossible for the English National Insurance authorities to instruct a doctor of their choice to certify the physical incapacity of Mr Kenny to continue or resume work. Moreover the National Commissioner recognizes that that incapacity persisted until his release on 28 March 1974.

2.

The only reason why the Commissioner did not grant the applicant's request is that the grant of benefits in his case is discriminatory as against nationals of the United Kingdom who are not migrant workers and who are in the same situation and subject to English legislation. The Commission for its part illustrates this disparity in treatment by also quoting the example of a migrant worker who, instead of returning to his original State (the Republic of Ireland), decides to remain in the country in which he serves the prison sentence (the United Kingdom).

This explains the question as to the ‘direct applicability’ of Article 7 of the Treaty of Rome, the first paragraph of which provides, as you are aware, that:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’.

The rule on ‘equal treatment with nationals’ constitutes, it is true, one of the fundamental legal provisions of the Community; as a reference to a set of legislative provisions effectively applied by the country of establishment to its own nationals, this rule is, by its essence, capable of being directly invoked by nationals of all the other Member States (for example see the judgment of 21 June 1974 in the Reyners case ([1974] ECR 651). It is therefore for any court in a Member State to draw the consequences of any infringement of the rule on non-discrimination, as this Court held in the judgment of 12 December 1974 in the Walrave case ([1974] ECR 1420).

3.

Article 7 therefore prohibits a Member State from giving less favourable treatment to nationals of other Member States than to its own nationals. This provision, according to Mr Cohen Jonathan (Revue du Marché Commun 1978, p. 74, La Cour des Communautes et les Droits de l'Homme (The Court of the Communities and Human Rights) ‘is merely the expression of an economic need — to ensure freedom of movement — without a genuine social and humanitarian objective’.

Is it possible to deduce from that rule that it requires a Member State not to treat the nationals of other Member States more favourably than its own nationals, because of legislative or other disparities? In other words, does Article 7 contain a directly applicable principle which the national courts must protect even if it turns out to the disadvantage of individuals? This is the problem which seems to concern the National Commissioner most and which he seeks to encapsulate with his third question.

It seems to me to be clear that Article 7 is not concerned with any disparities in treatment or the distortions which may result, for the persons and undertakings subject to the jurisdiction of the Community, from divergences existing between the laws of the various Member States, so long as the latter affect all persons subject to them in accordance with objective criteria and without regard to their nationality (judgment of 13 February 1969 in the Wilhelm case ([1969] ECR 16). This finding applies equally to social security matters and to the law on cartels.

Nor does the prohibition against discrimination on the ground of nationality prohibit the application of a different system of taxation according to the residence of the taxpayer, as the Finanzgericht Dusseldorf decided on 8 May 1974 (Sperl 1974, No 545). It does not follow from the Treaty that in tax matters the tax authorities must treat the territory of the Member States as national territory. If that were not so, it would be necessary to accept that another rule is just as mandatory, in other words, that a national must not be treated differently from his compatriots according to whether he lives in the Member State of which he is a national or in another Member State.

I do not therefore think that, worded thus, this rule has ‘direct effects’ within the meaning given by this Court to that expression, in so far as it is capable of turning out to the disadvantage of individuals for that reason, moreover, those individuals will not be induced to invoke it.

III —

On the other hand, the fundamental principle of non-discrimination on the basis of nationality is the subject of specific rules laid down in the chapters of Title III of Part Two of the Treaty on the freedom of movement for workers, the right of establishment and the provision of services.

Article 3 (1) of Regulation No 1408/71 incorporates this principle in the field of the application of social security schemes to employed persons moving within the Community:

‘Subject to the special provisions of this regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State’.

If it were considered necessary to understand ‘obligations’ as meaning also any fact entailing disqualification from a right to benefits, it would have to be accepted that an event which occurred in a Member State (the Republic of Ireland) must have the same effects as a corresponding event occurring in another Member State (the United Kingdom). If that were not so, ‘inverted’ discrimination might well be produced to the detriment of workers who are nationals of the United Kingdom and are in an identical situation or to the detriment of migrant workers who, rinstead of returning to their country of origin, decide to remain in the country in which they are imprisoned (in the present case, the United Kingdom).

For my part, I consider that the term ‘obligations’ used in Article 3 of Regulation No 1408/71 refers to the strict field of social security: they are conditions imposed by national legislation with regard to the acquisition, maintenance or recovery of the right to social security (for example, the conditions for being subject to a social security scheme, the minimum number of working hours, whether the worker is an employed person or a worker treated as such and the minimum registration period), and not detailed rules which are extraneous to social security and depend for example upon the ‘civic’ status of the perons insured.

Article 3 of Regulation No 1408/71, just like Article 7 of the Treaty, concerns the treatment of nationals of each of the Member States in the same way as nationals of the host State, but not the treatment of facts which have occurred on the territory of each of the Member States as equivalent to ‘corresponding’ facts which have occurred on the territory of the host State or the competent State.

IV —

But does such a rule prohibiting ‘inverted’ discrimination exist specifically in the field of social security as a result of a general unwritten principle of Community law?

In the d'Amico case, on which this Court gave judgment on 9 July 1975 ([1975] ECR 891), Mr Advocate General Trabucchi was led to state as follows in his opinion of 12 June 1975:

‘It would indeed be too much to assert in general terms that the principle of territoriality is superseded in every respect in connexion with the application of national social legislation to Community workers, but it is likewise inadmissible to proceed from the opposite concept that, as a general rule, for the purpose of the application of national social legislation it is impossible to take cognizance of facts occurring outside the territory of the State, unless there is express provision to the contrary. The case-law of the Court shows us how facts occurring outside the territory of a specific Member State must be treated, even in the absence of specific provisions to this effect, as equivalent to corresponding facts which the national legislation considers as relevant only if they occur on the national territory’ ([1975] ECR 902-903).

The Advocate General thus referred in particular to the judgment given in the Ugliola case (15 October 1969 [1969] ECR 363) which concerned the problem whether national legislation providing that a contract of employment was maintained during a period of military service applied to such a period completed in another Member State.

That case did not concern social security but freedom of movement for workers. In that instance this Court held that, on the basis of the principle of equality of treatment implemented, under Article 48 of the Treaty, by the Community rules on the right to employment, periods of military service completed in another Member State had to be taken into account.

However, in the field of social security this Court has clearly departed from that view, specifically in its judgment in the d'Amico case, by holding that for the acquisition of the right to benefits in another Member State there was no need to take into account periods completed in another Member State which in essence are equivalent periods but which are not, under the national law of that State, reckonable towards the qualifying insurance period for the acquisition of the right to benefit or in calculating the benefit and the completion of which before a claim is made is simply an additional condition of the right to benefits.

Although it is true that no Community provision precludes disqualification arising from imprisonment in a Member State or in a third State, nor does any provision provide for such disqualification. Of course although the form drawn up by the Administrative Commission on Social Security for Migrant Workers does not contain imprisonment or detention in the list of circumstances justifying suspension of the payment of unemployment benefits, that does not by itself prevent a Member State from considering that fact as a ground for disqualification provided that there is a general principle of law common to the social security schemes of the Member States requiring it to be taken into consideration.

Given the prospects for a ‘European judicial area’ I consider in fact that it would be necessary to take into account in each of the Member States corresponding facts which have occurred in another Member State; however, it would then be necessary for the facts to be accepted without discrimination where they are capable of turning out to the advantage of those concerned as well as where they may turn out to their disadvantage.

In the above-mentioned judgment this Court stated that there was no need to take into account a faa which, though closely linked to social security, might turn out to the advantage of a worker moving within the Community; I cannot understand how in the present state of affairs this Court could rule that it is necessary to take into account a faa capable of turning out to the disadvantage of such a worker by virtue of an unwritten provision of Community social security law.

In a decision which is already of long standing the Landessozialgericht Baden-Württemberg ruled on 30 August 1968 (Sperl 1968, No 3337) ‘that Article 8 of Regulation No 3 (which corresponds in essence to Article 3 (1) of Regulation No 1408/71) primarily aims at prohibiting any discrimination towards or disadvantage to migrant workers as against nationals living in the Member State but not the converse and at preventing more favourable treatment which might result from the Community provisions applicable to migrant workers’.

V —

It remains to inquire whether there is a general principle common to the laws of the Member States enabling the competent national institution to treat facts which have occurred on the territory of another Member State as equivalent to corresponding facts which, had they occurred in its own State, would have disqualified the worker concerned in part or in whole for receiving cash sickness insurance benefits.

Faced with this question, which is one of law and not of faa, it would be unsatisfactory to reply that it is for the national court to decide whether a person imprisoned in a Member State of which he is or is not a national is in the same situation as nationals or persons coming from another Member State deuined in that State.

The faa that Regulation No 1408/71 aims exclusively at co-ordinating the application of the social security schemes of the Member States and not at harmonizing them cannot result in permitting without more ado alignment on the system applicable to prisoners in the Member State of the court making the reference. Such a reference to national law would amount, in the absence of harmonization at a Community level, to aligning Community law on the law of the national court making the reference to this Court and on the concepts existing in that law.

Before taking such a step it would be appropriate to undertake a thorough study of comparative law in order to find out what effect imprisonment or detention has on the right to cash sickness insurance benefits in all the Member States so as to be able to state that ‘in substance’ the situation is the same whether workers are imprisoned in the State of which they are nationals or in the State in which they work. I consider that such a study is as important, for example, as drawing up a table of the veterinary and public health inspection measures carried out at the frontiers of the Member States with regard to imports of animals and meat from third countries.

For my part, I have only been able to make a foray into the system of my Member State of origin.

It is necessary first to make a clear distinction between the problem which is of interest to us and the system with regard to prisoners carrying out prison work as far as compensation for industrial accidents is concerned.

The European Interim Agreements on Social Security entered into within the context of the Council of Europe did not envisage that problem at all.

However the parties to those agreements formulated a certain number of reservations listed in Annex III to each of those agreements.

Those reservations related in particular, in the case of France, to the legislation on compensation for industrial accidents suffered by prisoners. The benefits laid down in that legislation could not be granted within the context of the interim agreements and were only granted if a specific agreement had been entered into with the country in question. In France this reservation was removed as from 1 October 1962. A decree of 19 November 1962 abolished the restriction contained in Article L 416 (5) of the code de la Securite Sociale (Social Security Code) relating to the guarantee against the risks of industrial accident of prisoners of foreign nationality carrying out prison work. As from 23 November 1962, prisoners of foreign nationality were therefore covered, on the same conditions as French prisoners, for any accident occurring on account of or during prison work.

Next it is necessary to separate the problem of sickness insurance benefits in kind from the case of interest to this Court since the treatment given to prisoners is given free at the infirmary or hospital.

As far as cash sickness insurance benefits (daily allowances) are concerned, the system with regard to prisoners is as follows:

There is no need to make a distinction according to the nature of the internment, whether administrative internment, detention under remand or imprisonment under the criminal law, or according to whether the prisoner is ultimately discharged, released or acquitted.

A person who is a member of a social security scheme and who at the date of his imprisonment would have been entitled to daily allowances as a result of ceasing work because of illness is entitled to those allowances during the period of his incapacity. The condition is that he must have ceased work before the imprisonment; it is therefore sufficient if the right to daily allowances has been acknowledged before the detention. The right to benefits is in any case maintained where the insured person was actually receiving them at the date of imprisonment; on the other hand, it is irrelevant that payment of the benefits is not resumed after release.

The French Cour de Cassation has consistently held in its decisions, in particular concerning workers from North Africa, that the sickness insurance funds are under a legal duty to pay daily allowances which are not in the nature of remuneration or compensation for remuneration and which arise from the collection of contributions from the insured person as long as the illness involves for the person concerned incapacity to work, ‘without the need to be concerned with any other facts which would make it impossible for that insured person to take up employment as a wage-earner’. At the most, since prisoners cannot be given less favourable treatment than insured persons in hospital it is necessary to apply identical reductions in the daily allowances paid to those two categories of persons.

Consequently, in French law imprisonment or detention does not exclude incapacity for work resulting from circumstances preceding imprisonment.

I do not know exactly what the system is in the other Member States, apart from the United Kingdom and the Republic of Ireland, having regard to the state of the information given without prejudice by the Commission at the hearing, but there is no reason for Community law to align itself on the law of one of those Member States or for this Court to acknowledge that there is a general principle common to the laws of the Member States according to which all rules of a Member State relating to the imprisonment of workers are applicable to imprisonment in the other Member States.

This is a real lacuna in Community law and, in this field as in many others, there is a wide field of action open to the ‘European legislature’.

Finally, although ‘inverted’ discrimination may well occur against nationals who have not left the United Kingdom, caused by the failure to harmonize the social security schemes for prisoners, to adopt the equivalent treatment defended by the Insurance Officer would itself produce other disparities. It is sufficient to imagine the following cases: an English worker who was employed in another Member State (France for example) and resided in that State where, let us suppose, there was no such disqualification would be entitled to cash sickness insurance benefits even if he was imprisoned in England; a Frenchman who, after working in England, returned to France and was imprisoned on the same conditions as the plaintiff in the main action would therefore be given treatment different from that given to a Frenchman who, without having left France, would receive daily sickness allowances although he was in prison; finally, if the plaintiff had been imprisoned in France instead of in Ireland and if the disqualification provided for by the legislation of the United Kingdom had been applied to him he would suffer discrimination as against Frenchmen living in France. Such disparities, augmenting a penalty, are capable of indirectly restricting the freedom of movement of workers.

To quote the expression used by a member of this Court (Mr Pierre Pescatore, Statement to the Parliamentary Conference on Human Rights, Vienna, 1971): ‘In the task of comparison and approximation which the Court of Justice will have to perform, it will be induced by the force of circumstances to have regard each time to the highest standard of protection since it is difficult to imagine how Community law could preserve its authority if it had to stoop below a level of protection considered as essential in one or other Member State’. As Mr Cohen Jonathan says once more (in the above-mentioned article, p. 97): ‘The task of the Luxembourg Court is to seek the highest standard of protection: it is unimportant whether it finds it in a provision of national or international law which is not unanimously accepted by all the Member States’.

VI —

Finally, whatever the reply given by this Court to the questions referred to it, I consider, as I have already said, that it is necessary for the Court not to go beyond the problem of the payment of cash sickness benefits to insured prisoners and to rule in short, as the Insurance Officer suggests in his written observations, that any fan occurring in a Member State and capable of turning out to the disadvantage of an insured person must be treated as equivalent to a corresponding fact which occurred in the competent State, extending this rule to the case of members of the families of insured prisoners.

In this respect, it seems to me that it is not permissible to penalize seriously a husband or wife or children who are in no way responsible for the mistakes of the head of the family and who are not only deprived of the person who normally provides for their needs but in addition deprived of the means to deal with misfortune when an event occurs which would normally justify the intervention of the social security authorities.