61979J0110

1 . FREEDOM OF MOVEMENT FOR PERSONS - WORKERS - REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL - PURPOSE - CREATION OF RIGHTS BY VIRTUE OF INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE - EXCLUSION

( REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - AFFILIATION TO A SOCIAL SECURITY SCHEME - CONDITIONS - APPLICATION OF NATIONAL LAW - LEGISLATION MAKING AFFILIATION CONDITIONAL ON THE COMPLETION OF INSURANCE PERIODS - INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE TREATED AS EQUIVALENT TO THOSE COMPLETED ON NATIONAL TERRITORY - DUTY OF THE MEMBER STATES - NONE

( REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL , ARTS 1 ( A ) AND 3 )

1 . THE PRINCIPAL AIM OF REGULATION NO 1612/68 IS TO ENSURE THAT IN EACH MEMBER STATE WORKERS FROM THE OTHER MEMBER STATES RECEIVE TREATMENT WHICH IS NOT DISCRIMINATORY BY COMPARISON WITH THAT OF NATIONAL WORKERS BY PROVIDING FOR THE SYSTEMATIC APPLICATION OF THE RULE OF NATIONAL TREATMENT AS FAR AS ALL CONDITIONS OF EMPLOYMENT AND WORK ARE CONCERNED . IT IS NOT THE PURPOSE OF THAT REGULATION TO CREATE RIGHTS BY VIRTUE OF INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE IF SUCH RIGHTS , IN THE CASE OF THE NATIONALS OF THE HOST STATE , DO NOT DERIVE FROM NATIONAL PROVISIONS .

2 . ARTICLES 1 ( A ) AND 3 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME PROVIDED ALWAYS THAT IN THIS CONNEXION THERE IS NO DISCRIMINATION BETWEEN NATIONALS OF THE HOST STATE AND NATIONALS OF THE OTHER MEMBER STATES .

CONSEQUENTLY IF NATIONAL LEGISLATION MAKES AFFILIATION TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER THAT SCHEME CONDITIONAL IN CERTAIN CIRCUMSTANCES ON PRIOR AFFILIATION BY THE PERSON CONCERNED TO THE NATIONAL SOCIAL SECURITY SCHEME REGULATION NO 1408/71 DOES NOT COMPEL MEMBER STATES TO TREAT AS EQUIVALENT INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE AND THOSE WHICH WERE COMPLETED PREVIOUSLY ON NATIONAL TERRITORY .

IN CASE 110/79

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

UNA COONAN

AND

THE INSURANCE OFFICER

ON THE INTERPRETATION OF ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND OF CERTAIN PROVISIONS 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 IN PARTICULAR OF ARTICLES 18 AND 46 ,

1 BY AN ORDER OF 10 JULY 1979 , RECEIVED AT THE COURT OF JUSCTICE ON 16 JULY 1979 , THE NATIONAL INSURANCE COMMISSIONER REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A NUMBER OF QUESTIONS ON THE INTERPRETATION OF ARTICLE 7 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND ALSO OF VARIOUS PROVISIONS 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 ).

2 THOSE QUESTIONS HAVE BEEN REFERRED TO THE COURT IN CONNEXION WITH A DISPUTE BETWEEN MRS COONAN , AN IRISH NATIONAL , AND A LOCAL SOCIAL SECURITY OFFICER IN THE UNITED KINGDOM ON THE QUESTION WHETHER , AND , IF SO , UNDER WHAT CONDITIONS , A NATIONAL OF A MEMBER STATE - IN THIS CASE OF IRELAND - WHO , AFTER BEING EMPLOYED IN THAT MEMBER STATE , CAME TO THE UNITED KINGDOM AND WORKED THERE BEFORE HE HAD REACHED PENSIONABLE AGE IN HIS COUNTRY OF ORIGIN BUT AFTER HE HAD REACHED PENSIONABLE AGE IN THE UNITED KINGDOM , IS ENTITLED IN THAT SECOND MEMBER STATE TO THE CASH SICKNESS BENEFITS PROVIDED FOR WORKERS UNDER ITS SOCIAL SECURITY LEGISLATION .

3 THE LEGISLATION IN FORCE IN THE UNITED KINGDOM DOES NOT GRANT HIM SUCH ENTITLEMENT . IN FACT IF A WORKER CONTINUES TO BE EMPLOYED AS SUCH BEYOND PENSIONABLE AGE , UNDER THAT LEGISLATION HE IS ENTITLED THEREAFTER TO CASH SICKNESS BENEFITS ONLY IF HE WOULD HAVE BEEN ENTITLED TO A PARTICULAR KIND OF RETIREMENT PENSION UNDER NATIONAL LEGISLATION IN THE EVENT OF HIS CEASING TO WORK .

SINCE THAT ENTITLEMENT TO A RETIREMENT PENSION CAN DERIVE ONLY FROM AFFILIATION TO A NATIONAL SOCIAL SECURITY SCHEME DURING THE PERIOD PRIOR TO RETIREMENT IT NECESSARILY FOLLOWS THAT A PERSON , WHETHER OF UNITED KINGDOM OR FOREIGN NATIONALITY , WHO , BEFORE REACHING PENSIONABLE AGE , HAS NEVER COMPLETED QUALIFYING PERIODS IN THAT MEMBER STATE OR WHO HAS COMPLETED ONLY AN INSUFFICIENT NUMBER OF QUALIFYING PERIODS IN THAT STATE TO BE ENTITLED TO A RETIREMENT PENSION , DOES NOT FULFIL THAT CONDITION . IF THAT PERSON CONTINUES TO WORK IN THE UNITED KINGDOM HE CANNOT THEREFORE CLAIM , IN THE EVENT OF ILLNESS , TO RECEIVE THE CASH SICKNESS BENEFITS WHICH THE LEGISLATION AWARDS TO WORKERS .

4 THAT SITUATION COULD BE REMEDIED ONLY IF AFFILIATION IN ANOTHER MEMBER STATE BEFORE PENSIONABLE AGE IN THE UNITED KINGDOM WERE TREATED AS EQUIVALENT TO AFFILIATION IN THE LATTER MEMBER STATE . THE ISSUE BETWEEN THE PARTIES TO THE DISPUTE AMOUNTS IN SUBSTANCE TO THE QUESTION WHETHER OR NOT COMMUNITY LAW , AND IN PARTICULAR REGULATION NO 1612/68 OR REGULATION NO 1408/71 , PROVIDES FOR SUCH EQUIVALENCE . IT IS WITH A VIEW TO RESOLVING THE PROBLEM STATED IN THIS WAY THAT THE VARIOUS QUESTIONS HAVE BEEN REFERRED TO THE COURT FOR A PRELIMINARY RULING .

5 THE FIRST QUESTION ASKS WHETHER ' ' IN THE CASE OF A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE ( IN THIS CASE THE REPUBLIC OF IRELAND ) IN WHICH SHE IS UNDER PENSIONABLE AGE AND WHERE SHE HAD PAID SOCIAL WELFARE CONTRIBUTIONS TOWARDS SICKNESS AND OTHER BENEFITS IS ENTITLED ON ENTERING ON EMPLOYMENT AS AN EMPLOYED EARNER IN ANOTHER MEMBER STATE , NAMELY THE UNITED KINGDOM , WHERE SHE IS OVER PENSIONABLE AGE , TO PAY THE SAME FULL SOCIAL SECURITY CONTRIBUTIONS TOWARDS SICKNESS AND OTHER BENEFITS IN THAT OTHER MEMBER STATE AS A NATIONAL OF THAT OTHER MEMBER STATE WHO IS RESIDENT THERE AND WHO ENTERED ON EMPLOYMENT AND PAID FULL INSURANCE CONTRIBUTIONS THERE WHILE UNDER PENSIONABLE AGE AND HAS CONTINUED TO PAY SUCH CONTRIBUTIONS WHILE OVER PENSIONABLE AGE EITHER BY VIRTUE OF

( A ) ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OR

( B ) ARTICLE 3 OF REGULATION ( EEC ) NO 1408/71 OR

( C ) SOME OTHER PROVISION OF THE EEC LEGISLATION ' ' .

6 IT SHOULD FIRST OF ALL BE NOTED THAT THE PRINCIPAL AIM OF REGULATION ( EEC ) NO 1612/68 OF 15 OCTOBER 1968 IS TO ENSURE THAT IN EACH MEMBER STATE WORKERS FROM THE OTHER MEMBER STATES RECEIVE TREATMENT WHICH IS NOT DISCRIMINATORY BY COMPARISON WITH THAT OF NATIONAL WORKERS BY PROVIDING FOR THE SYSTEMATIC APPLICATION OF THE RULE OF NATIONAL TREATMENT AS FAR AS ALL CONDITIONS OF EMPLOYMENT AND WORK ARE CONCERNED . IT IS NOT THE PURPOSE OF THAT REGULATION TO CREATE RIGHTS BY VIRTUE OF INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE IF SUCH RIGHTS , IN THE CASE OF THE NATIONALS OF THE HOST STATE , DO NOT DERIVE FROM NATIONAL PROVISIONS . THERE ARE THEREFORE NO GROUNDS FOR HAVING RECOURSE TO THE PROVISIONS OF REGULATION NO 1612/68 IN A CASE SUCH AS THIS .

7 AS FAR AS REGULATION NO 1408/71 IS CONCERNED THE FIRST QUESTION AMOUNTS IN SUBSTANCE TO ASKING WHETHER THAT REGULATION GIVES A WORKER IN THE CLAIMANT ' S SITUATION THE RIGHT TO BE AFFILIATED TO THE SOCIAL SECURITY SCHEME OF THE MEMBER STATE TO WHICH HE GOES TO WORK FOR THE FIRST TIME , EVEN THOUGH HE IS REFUSED THAT RIGHT ON THE BASIS OF NATIONAL PROVISIONS ALONE .

8 NEITHER ARTICLE 18 NOR ARTICLE 46 OF REGULATION NO 1408/71 PROVIDES THE ANSWER TO THAT QUESTION . THOSE PROVISIONS IN FACT GOVERN THE AGGREGATION OF QUALIFYING PERIODS AND THE EFFECTS THEREOF , THE FIRST AS FAR AS CONCERNS SICKNESS BENEFITS , THE SECOND AS FAR AS CONCERNS OLD-AGE AND DEATH BENEFITS , IN THE CASE OF A PERSON WHO IS OR HAS BEEN AFFILIATED AS A WORKER TO THE NATIONAL SOCIAL SECURITY SCHEME IN ONE MEMBER STATE , WHEN , ON THE OTHER HAND , HE HAS ALSO COMPLETED QUALIFYING PERIODS IN ANOTHER MEMBER STATE . THEY DO NOT GOVERN THE PRELIMINARY QUESTION OF ASCERTAINING THE CONDITIONS UNDER WHICH A NATIONAL OF A MEMBER STATE MAY OR MUST BE AFFILIATED TO THE SOCIAL SECURITY SCHEME OF ANOTHER MEMBER STATE WHERE HE IS AN EMPLOYED PERSON .

9 THAT PRELIMINARY QUESTION IS GOVERNED BY ARTICLES 1 ( A ) AND 3 OF REGULATION ( EEC ) NO 1408/71 .

10 ON THE ONE HAND , ACCORDING TO ARTICLE 1 ( A ) ' ' WORKERS ' ' MEANS :

' ' ( I ) 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 ;

( II)ANY PERSON WHO IS COMPULSORILY INSURED FOR ONE OR MORE OF THE CONTINGENCIES COVERED BY THE BRANCHES OF SOCIAL SECURITY DEALT WITH IN THIS REGULATION , UNDER A SOCIAL SECURITY SCHEME FOR ALL RESIDENTS OR FOR THE WHOLE WORKING POPULATION IF SUCH PERSON :

- CAN BE IDENTIFIED AS AN EMPLOYED PERSON BY VIRTUE OF THE MANNER IN WHICH SUCH SCHEME IS ADMINISTERED OR FINANCED , OR

- FAILING SUCH CRITERIA , IS INSURED FOR SOME OTHER CONTINGENCY SPECIFIED IN ANNEX V UNDER A SCHEME FOR EMPLOYED PERSONS EITHER COMPULSORILY OR ON AN OPTIONAL CONTINUED BASIS ' ' .

11 ON THE OTHER HAND , ACCORDING TO ARTICLE 3 ( 1 ) OF THE SAID REGULATION :

' ' 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 ' ' .

12 THE EFFECT OF THOSE TWO PROVISIONS WHEN READ TOGETHER IS THAT IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME PROVIDED ALWAYS THAT IN THIS CONNEXION THERE IS NO DISCRIMINATION BETWEEN NATIONALS OF THE HOST STATE AND NATIONALS OF THE OTHER MEMBER STATES . THE COURT ACKNOWLEDGED IN ITS JUDGMENT OF 12 JULY 1979 IN CASE 266/78 BRUNORI ( 1979 ) ECR THAT NATIONAL LEGISLATURES ARE COMPETENT IN THIS FIELD .

13 CONSEQUENTLY IF NATIONAL LEGISLATION MAKES AFFILIATION TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER THAT SCHEME CONDITIONAL IN CERTAIN CIRCUMSTANCES ON PRIOR AFFILIATION BY THE PERSON CONCERNED TO THE NATIONAL SOCIAL SECURITY SCHEME REGULATION NO 1408/71 DOES NOT COMPEL MEMBER STATES TO TREAT AS EQUIVALENT INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE AND THOSE WHICH WERE COMPLETED PREVIOUSLY ON NATIONAL TERRITORY .

14 THE SECOND QUESTION ASKS IN SUBSTANCE WHETHER THE FACT THAT A PERSON HAS FOR A CERTAIN PERIOD OF TIME BEEN AFFILIATED BY MISTAKE TO A SOCIAL SECURITY SCHEME ENTITLES THAT PERSON TO THE BENEFITS PROVIDED FOR BY THE RELEVANT LEGISLATION , WHERE THE ERROR HAS COME TO LIGHT AT THE VERY TIME WHEN THOSE BENEFITS ARE BEING CLAIMED , WHILE THE PURPOSE OF THE THIRD QUESTION IS TO ESTABLISH WHETHER THE FACT THAT A PERSON IN THE CLAIMANT ' S POSITION HAS BEEN COMPULSORILY AFFILIATED TO THE INDUSTRIAL INJURIES SCHEME THROUGH THE COMPETENT INSTITUTION IPSO FACTO ENTAILS HIS AFFILIATION THROUGH THE COMPETENT INSTITUTION IN RESPECT OF THE OTHER SOCIAL SECURITY BENEFITS .

15 THE OUTCOME OF THE FOREGOING CONSIDERATIONS IS THAT THE ANSWERS TO BE GIVEN TO THE SECOND AND THIRD QUESTIONS ARE ALSO GOVERNED BY NATIONAL LAW , PROVIDED ONLY THAT DISTINCTION IS MADE BETWEEN NATIONALS OF THE HOST STATE AND THOSE OF THE OTHER MEMBER STATES . NO PROVISION OF REGULATION NO 1408/71 FORBIDS MEMBER STATES TO DETERMINE THE EFFECTS OF A PARTICULAR AFFILIATION ACCORDING TO THE NATURE OF THE RISKS TO BE COVERED OR THE BENEFITS TO BE PROVIDED .

16 THE REPLIES GIVEN ABOVE MEAN THAT THE FOURTH , FIFTH , SIXTH AND SEVENTH QUESTIONS RELATING TO ARTICLES 18 AND 46 OF REGULATION NO 1408/71 NO LONGER REQUIRE TO BE ANSWERED .

17 SINCE THE QUESTION WHETHER PERSONS IN THE SITUATION OF THE CLAIMANT MAY DERIVE A RIGHT TO BE AFFILIATED FROM THE PROVISIONS OF THE RECIPROCAL AGREEMENT CONCLUDED BETWEEN IRELAND AND THE UNITED KINGDOM ON 29 MARCH 1960 AND THE AGREEMENT BETWEEN IRELAND AND THE UNITED KINGDOM OF 14 SEPTEMBER 1971 ON SOCIAL SECURITY HAS BEEN RAISED DURING THE PROCEEDINGS BEFORE THE COURT OF JUSTICE , IT IS NECESSARY TO STATE THAT IT IS FOR THE NATIONAL COURT OR TRIBUNAL TO ASCERTAIN WHETHER THE CONDITIONS FOR IMPLEMENTING THOSE AGREEMENTS ARE PRESENT IN THE DISPUTE BEFORE IT AND WHETHER ONE OR OTHER OF THOSE AGREEMENTS DEALS WITH THE RIGHT TO BE AFFILIATED TO THE SOCIAL SECURITY SCHEME OF THE UNITED KINGDOM IN A CASE SUCH AS THAT OF THE CLAIMANT .

18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE APPEAL PENDING BEFORE THE NATIONAL INSURANCE COMMISSIONER THE DECISION AS TO COSTS IS A MATTER FOR THE NATIONAL INSURANCE COMMISSIONER .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE NATIONAL INSURANCE COMMISSIONER , LONDON , BY AN ORDER DATED 10 JULY 1979 , WHICH WAS REGISTERED AT THE COURT ON 16 JULY 1979 , HEREBY RULES :

1 . ARTICLES 1 ( A ) AND 3 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 MUST BE INTERPRETED AS MEANING THAT IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME PROVIDED ALWAYS THAT IN THIS CONNEXION THERE IS NO DISCRIMINATION BETWEEN NATIONALS OF THE HOST STATE AND NATIONALS OF THE OTHER MEMBER STATES .

2 . NO PROVISION OF REGULATION NO 1408/71 FORBIDS MEMBER STATES TO DETERMINE THE EFFECTS OF AN ERRONEOUS AFFILIATION . NOR IS THERE ANYTHING TO PREVENT MEMBER STATES FROM PROVIDING FOR DIFFERENT SOCIAL SECURITY SCHEMES INVOLVING SPECIAL CONDITIONS FOR AFFILIATION ACCORDING TO THE NATURE OF THE RISKS TO BE COVERED OR THE BENEFITS TO BE PROVIDED .