61973J0035

++++

SOCIAL SECURITY - MIGRANT WORKERS - SICKNESS INSURANCE - PENSIONERS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF SEVERAL MEMBER STATES - RESIDENCE IN THE TERRITORY OF ONE OF THESE STATES - BENEFITS IN KIND PROVIDED BY THE LEGISLATION OF A STATE OTHER THAN THAT OF RESIDENCE - NON-ENTITLEMENT

( REGULATION NO 3, ARTICLE 22 )

ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS IS TO BE INTERPRETED AS MEANING THAT THE STATE WHERE HE IS RESIDENT DOES NOT HAVE TO ISSUE BENEFITS IN KIND TO A PENSIONER WHO IS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF SEVERAL MEMBER STATES AND WHO IS RESIDENT IN ONE OF THEM, WHERE THIS IS NOT PROVIDED FOR BY THE LAW OF THAT STATE .

IN CASE 35/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

LUDWIG KUNZ OF AMSTERDAM - NETHERLANDS, PLAINTIFF AND RESPONDENT,

AND

BUNDESVERSICHERUNGSANSTALT FUER ANGESTELLTE, BERLIN 31, DEFENDANT AND APPELLANT,

ON THE INTERPRETATION OF ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING THE SOCIAL SECURITY FOR MIGRANT WORKERS, ( OJ NO 30, 16 . 12 . 1958, P . 561/58 ).

1 IN ACCORDANCE WITH ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, THE BUNDESSOZIALGERICHT, BY ORDER MADE ON 20 OCTOBER 1972 AND LODGED WITH THE REGISTRY ON 28 FEBRUARY 1973, HAS REFERRED TO THE COURT A QUESTION ON THE INTERPRETATION OF ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .

THIS QUESTION HAS ARISEN IN AN ACTION CONCERNING THE APPLICATION MADE BY THE PLAINTIFF IN THE MAIN ACTION TO THE BUNDESVERSICHERUNGSANSTALT FUER ANGESTELLTE, BERLIN, FOR AN ALLOWANCE PROVIDED FOR IN ARTICLE 381 ( 4 ) RVO TOWARDS THE CONTRIBUTIONS WHICH HE PAYS ON A VOLUNTARY BASIS TO A DUTCH SOCIETY FOR SICKNESS INSURANCE .

THE DEFENDANT IN THE MAIN ACTION REJECTED THIS APPLICATION ON THE GROUND THAT THE PLAINTIFF, NOT BEING SUBJECT TO THE GERMAN SICKNESS INSURANCE SCHEME, WAS NOT ENTITLED TO AN ALLOWANCE TOWARDS HIS CONTRIBUTIONS, AND THAT UNDER ARTICLE 22 OF REGULATION NO 3 THE SICKNESS INSURANCE OF PENSIONERS WAS THE RESPONSIBILITY OF THE INSTITUTION IN THE PLACE OF RESIDENCE, IN THE CASE IN QUESTION A DUTCH INSTITUTION .

2 A DECLARATION IS SOUGHT AS TO WHETHER " ARTICLE 22 OF REGULATION NO 3 IS TO BE INTERPRETED AS MEANING THAT THE STATE WHERE HE IS RESIDENT MUST ISSUE BENEFITS IN KIND UNDER PENSIONERS' SICKNESS INSURANCE TO A PENSIONER WHO IS ENTITLED TO PENSIONS UNDER THE LEGISLATION OF SEVERAL MEMBER STATES AND IS RESIDENT IN ONE OF THEM, EVEN THOUGH THIS IS NOT PROVIDED FOR BY THE LAW OF THAT STATE, WHEREAS ANOTHER MEMBER STATE, UNDER WHOSE LEGISLATION THE PENSIONER IS ALSO ENTITLED TO A PENSION, WOULD HAVE HAD TO ISSUE SUCH BENEFITS ".

ARTICLE 22 ( 1 ) OF REGULATION NO 3 PROVIDES THAT " WHERE A PENSIONER ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF SEVERAL MEMBER STATES IS PERMANENTLY RESIDENT IN THE TERRITORY OF A MEMBER STATE IN WHICH ONE OF THE INSTITUTIONS LIABLE FOR PAYMENT OF HIS PENSIONS IS SITUATED, AND HE IS ENTITLED TO BENEFITS IN KIND UNDER THE LEGISLATION OF THAT STATE, THE BENEFITS IN KIND SHALL BE ISSUED TO HIM AND THE MEMBERS OF HIS FAMILY BY THE INSTITUTION OF HIS PLACE OF PERMANENT RESIDENCE, AS THOUGH HE WERE A PENSIONER WHOSE PENSION WAS PAYABLE SOLELY UNDER THE LEGISLATION OF HIS COUNTRY OF PERMANENT RESIDENCE . THE COST OF SUCH BENEFITS SHALL BE BORNE BY THE INSTITUTION OF THE COUNTRY OF PERMANENT RESIDENCE ".

THIS ARTICLE GOVERNS THE SITUATION OF A PENSIONER ACCORDING TO WHETHER HE IS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF A SINGLE OR SEVERAL MEMBER STATES, AND WHETHER OR NOT THE PENSIONER RESIDES IN THE TERRITORY OF A MEMBER STATE WHERE ONE OF THE INSTITUTIONS LIABLE FOR HIS PENSIONS IS SITUATED .

IN THE CASE IN QUESTION THE PLAINTIFF IN THE MAIN ACTION, WHO IS ENTITLED TO TWO PENSIONS, ONE UNDER THE OLD AGE INSURANCE LAW OF THE GERMAN FEDERAL REPUBLIC, WHERE HE HAS LIVED, THE OTHER UNDER THE GENERAL OLD AGE LAW OF THE NETHERLANDS, WHERE HE RESIDES, COMES WITHIN THE SITUATION DESCRIBED IN ARTICLE 22 ( 1 ).

3 THE SAID ARTICLE SUBJECTS THE GRANT OF BENEFITS IN KIND TO THE RIGHT WHICH THE PENSIONER POSSESSES TO RECEIVE SUCH BENEFITS UNDER THE LEGISLATION OF THE COUNTRY WHERE HE RESIDES .

THIS CONDITION IS CLEARLY STIPULATED IN ARTICLE 22 ( 1 ) AND ( 2 ) REGARDING PENSIONERS WHO FALL SICK IN THEIR COUNTRY OF RESIDENCE, AND THUS APPEARS BASIC AND DECISIVE .

4 WHEREAS ON THE ONE HAND ARTICLE 22 ( 5 ) DEALS WITH THE INDIRECT ENTITLEMENT OF MEMBERS OF THE FAMILY OF A PENSIONER TO BENEFITS CHARGEABLE TO THE STATE OF THEIR PLACE OF RESIDENCE, WHEN THIS LATTER DOES NOT COINCIDE WITH THAT OF THE HEAD OF HOUSEHOLD, AND ON THE OTHER HAND ARTICLE 22 ( 6 ) DEALS WITH DIRECT ENTITLEMENT OF THE PENSIONER OR A MEMBER OF HIS FAMILY TO BENEFITS CHARGEABLE TO THE STATE OF THEIR PLACE OF TEMPORARY RESIDENCE, SUCH IS NOT THE SITUATION REFERRED TO BY THE QUESTION .

THE QUESTION IS WHETHER BENEFITS IN KIND MUST BE GRANTED EVEN IN THE CASE WHERE THE LEGISLATION IN FORCE IN THE COUNTRY OF RESIDENCE DOES NOT PROVIDE FOR SUCH BENEFITS .

SUCH AN INTERPRETATION IS NOT IN ACCORD WITH THE TEXT OF ARTICLE 22 ( 1 ).

MOREOVER THERE IS NOTHING IN ANY OF THE OTHER PROVISIONS OF REGULATIONS NOS 3 AND 4 TO SUPPORT THIS INTERPRETATION .

ALTHOUGH ARTICLE 17 OF REGULATION NO 3 DOES NOT REPEAT THE CONDITION ALREADY REFERRED TO, IT DEALS WITH EMPLOYED PERSONS OR THOSE TREATED AS SUCH AND NOT WITH PENSIONERS .

ON THE OTHER HAND ARTICLE 14 OF REGULATION NO 4 CONFIRMS ARTICLE 22 ( 1 ) AND ( 2 ).

5 ALTHOUGH, AFTER THE PERIOD REFERRED TO IN THE QUESTION, ARTICLE 28 OF REGULATION NO 1408/71 OF 14 JUNE 1971 IMPOSES AN OBLIGATION ON THE COUNTRY OF RESIDENCE GIVING RISE TO AN ENTITLEMENT ON THE PART OF THE PENSIONER TO RECEIVE BENEFITS IN KIND IN THE EVENT OF SICKNESS WHATEVER THE LEGISLATION OF THAT COUNTRY, IT FOLLOWS HOWEVER FROM THE GROUNDS GIVEN FOR THE PROPOSAL BY THE COMMISSION OF 6 NOVEMBER 1966 FOR THE AMENDMENT OF REGULATION NO 3, THAT THIS IS AN EXTENSION OF THE COMMUNITY' S SOCIAL LAW, WHICH UNTIL THEN WAS LIMITED TO COORDINATING NATIONAL LAWS REGARDING SOCIAL SECURITY .

6 IT FOLLOWS FROM THE FOREGOING THAT BENEFITS IN KIND UNDER PENSIONERS' SICKNESS INSURANCE CANNOT BE PROVIDED BY A FUND WHICH IS NOT LIABLE BY ITS NATIONAL LAW .

7 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY ORDER OF THAT COURT DATED 20 OCTOBER 1972, HEREBY RULES :

ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS IS TO BE INTERPRETED AS MEANING THAT THE STATE WHERE HE IS RESIDENT DOES NOT HAVE TO ISSUE BENEFITS IN KIND TO A PENSIONER WHO IS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF SEVERAL MEMBER STATES AND IS RESIDENT IN ONE OF THEM, WHERE THIS IS NOT PROVIDED FOR BY THE LAW OF THAT STATE .