61965J0061

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1 . PROCEDURE - PRELIMINARY RULING - NATIONAL COURT OR TRIBUNAL WITHIN THE MEANING OF ARTICLE 177 OF THE EEC TREATY - BODIES ANALOGOUS TO ORDINARY COURTS OF LAW - POWER TO REFER CASES TO THE COURT

2 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - INTERPRETATION

( EEC TREATY, ARTICLE 177 )

3 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - LEGISLATION WITHIN THE MEANING OF REGULATION NO 3 OF THE COUNCIL OF THE EEC - ENFORCEABLE PROVISIONS - CONCEPTS

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ARTICLE 1(B ))

4 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - SPECIAL SCHEME WITHIN THE MEANING OF ARTICLE 2(2 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC - INQUIRY BY THE NATIONAL COURT INTO THE EXISTENCE OF SUCH A SCHEME - APPLICATION TO SUCH A SCHEME OF THE PROVISIONS OF REGULATIONS NOS 3 AND 4

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ARTICLE 2(2 ))

5 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - APPLICATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC - NETHERLANDS LEGISLATION - SICKNESS INSURANCE - GENERAL SCHEME AND SPECIAL SCHEMES COVERED

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ANNEX B, HEADING ' NETHERLANDS ')

6 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - TERRITORIAL PROVISIONS NOT TO BE APPLIED AGAINST THEM - PERSONS IN RECEIPT OF PENSIONS UNDER THE LEGISLATION OF A MEMBER STATE AND THEIR SURVIVORS - PERMANENT RESIDENCE IN A MEMBER STATE OTHER THAN THE ONE WHERE THE INSTITUTION LIABLE FOR PAYMENT IS SITUATED - AFFILIATION TO THE INSURANCE SCHEME SAFE-GUARDED EVEN WHEN OPTIONAL

( EEC TREATY, ARTICLES 48 TO 51; REGULATION NO 3 OF THE COUNCIL OF THE EEC, ARTICLES 4, 22 )

7 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - BENEFITS IN KIND WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC - BENEFITS IN THE FORM OF REIMBURSEMENT OF EXPENSES INCURRED

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ARTICLE 22 )

1 . THE EXPRESSION ' COURT OR TRIBUNAL ' IN ARTICLE 177 OF THE EEC TREATY MAY IN CERTAIN CIRCUMSTANCES INCLUDE BODIES OTHER THAN ORDINARY COURTS OF LAW .

2 . CF . PARA . 1, SUMMARY IN CASE 6/64, ( 1964 ) ECR 585 .

IN THE CONTEXT OF REQUESTS FOR PRELIMINARY RULINGS, THE COURT HAS NO JURISDICTION EITHER TO APPLY THE TREATY TO A SPECIFIC CASE OR TO DECIDE UPON THE VALIDITY OF A PROVISION OF DOMESTIC LAW IN RELATION TO THE TREATY, AS IT WOULD BE POSSIBLE FOR IT TO DO UNDER ARTICLE 169 . NEVERTHELESS, THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY . */ 664J0006 /*.

3 . RULES GOVERNING SICKNESS INSURANCE FOR WORKERS AND THEIR SURVIVORS, LAID DOWN AND OPERATED BY AN INSTITUTION ESTABLISHED UNDER PRIVATE LAW, SINCE THEY ARE ' ENFORCEABLE PROVISIONS ' FALL WITHIN THE TERM ' LEGISLATION ' WITHIN THE MEANING OF ARTICLES 1(B ) AND 4 OF REGULATION NO 3 WHEN THE SAID PROVISIONS SUPPLEMENT OR ARE A SUBSTITUTE FOR LAWS AND REGULATIONS ESTABLISHING A GENERAL OR SPECIAL SOCIAL SECURITY SCHEME .

4 . IN PARTICULAR A SPECIAL SCHEME WITHIN THE MEANING OF ARTICLE 2(2 ) OF REGULATION NO 3 OF THE COUNCIL OF THE EEC EXISTS WHEN A SPECIFIC GROUP OF WORKERS IS COMPULSORILY MADE SUBJECT TO A SPECIAL TYPE OF INSURANCE BY VIRTUE OF PUBLIC LAW . IT IS FOR THE NATIONAL COURT TO EXAMINE WHETHER THE CONDITIONS REQUIRED FOR THE EXISTENCE OF A SPECIAL SCHEME ARE MET . REGULATIONS NOS 3 AND 4 ARE APPLICABLE TO A SPECIAL SCHEME IN ITS ENTIRETY, INCLUDING ANY PROVISIONS WHICH IT MAY CONTAIN CONCERNING THE VOLUNTARY AND OPTIONAL AFFILIATION OF FORMER INSURED PERSONS AND THEIR SURVIVORS .

5 . THE HEADING ' NETHERLANDS ' IN ANNEX B TO REGULATION NO 3 OF THE COUNCIL OF THE EEC COVERS BOTH THE GENERAL AND THE SPECIAL SOCIAL SECURITY SCHEMES PROVIDING FOR INSURANCE AGAINST SICKNESS .

6 . ONE OF THE INTENTIONS OF ARTICLES 48 TO 51 OF THE EEC TREATY AND OF REGULATION NO 3 OF THE COUNCIL OF THE EEC IS TO PREVENT TERRITORIAL PROVISIONS FROM BEING APPLIED AGAINST WORKERS OR THEIR SURVIVORS IN MATTERS OF SOCIAL SECURITY . ACCORDINGLY UNDER REGULATION NO 3 AN INSTITUTION MANAGING A SICKNESS INSURANCE SCHEME MAY NOT REFUSE TO GIVE THE BENEFIT OF AFFILIATION TO THE SCHEME, EVEN AN OPTIONAL SCHEME, TO A WORKER ENTITLED TO A PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE OR TO HIS SURVIVOR, IF THE REASON FOR SO REFUSING IS THAT THE PERSON SO ENTITLED RESIDES PERMANENTLY IN A MEMBER STATE OTHER THAN THE ONE IN WHICH THE SAID INSTITUTION IS SITUATED .

7 . ARTICLE 22 OF REGULATION NO 3 ALSO APPLIES TO BENEFITS GIVEN IN THE FORM OF REIMBURSEMENT OF EXPENSES FOR MEDICAL TREATMENT, MEDICINES AND NURSING .

IN CASE 61/65

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SCHEIDSGERECHT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF, HEERLEN ( NETHERLANDS ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MRS G . VAASSEN ( NEE GOEBBELS ) ( A WIDOW ), RESIDENT AT BARDENBERG ( GERMANY ),

AND

MANAGEMENT OF THE BEAMBTENFONDS VOOR HET MIJNBEDRIJF, HEERLEN ( NETHERLANDS ),

ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.561 ET SEQ .),

P.272

I - THE ADMISSIBILITY OF THE REQUEST FOR INTERPRETATION

THE DEFENDANT IN THE MAIN ACTION ASSERTS THAT THE SCHEIDSGERECHT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF, HEREINAFTER REFERRED TO AS ' THE SCHEIDSGERECHT ', IS NOT A COURT OR TRIBUNAL WITHIN THE MEANING OF ARTICLE 177 OF THE EEC TREATY, AND IS THEREFORE NOT COMPETENT TO SUBMIT TO THE COURT OF JUSTICE A REQUEST IN PURSUANCE OF THAT ARTICLE FOR THE INTERPRETATION OF ANY OF THE MATTERS THEREIN SPECIFIED .

P.273

THE SCHEIDSGERECHT IS PROPERLY CONSTITUTED UNDER NETHERLANDS LAW, AND IS PROVIDED FOR BY THE ' REGLEMENT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF ' ( RBFM ) WHICH GOVERNS THE RELATIONSHIP BETWEEN THE BEAMBTENFONDS AND THOSE INSURED BY IT .

ACCORDING TO THE TERMS OF THE NETHERLANDS INVALIDITY LAW, THE COMPULSORY INSURANCE PROVIDED FOR BY THAT LAW DOES NOT APPLY TO PERSONS WHOSE INVALIDITY OR OLD-AGE PENSION IS PROVIDED FOR UNDER THE TERMS OF ANOTHER SCHEME WHICH IS INTENDED TO REPLACE THE GENERAL SCHEME . SUCH SUBSTITUTION WILL OCCUR WHEN THE COMPETENT AUTHORITIES DECLARE THAT THE SUBSTITUTED SCHEME SATISFIES THE LEGAL REQUIREMENTS AND OFFERS SUFFICIENT GUARANTEES FOR THE PROVISION OF PENSIONS . ANALOGOUS PROVISIONS EXIST FOR OTHER BRANCHES OF SOCIAL SECURITY . IT FOLLOWS THAT THE RULES AND ANY SUBSEQUENT AMENDMENTS OF THEM MUST BE APPROVED NOT ONLY BY THE NETHERLANDS MINISTER RESPONSIBLE FOR THE MINING INDUSTRY, BUT ALSO BY THE MINISTER FOR SOCIAL AFFAIRS AND PUBLIC HEALTH .

IT IS THE DUTY OF THE MINISTER RESPONSIBLE FOR THE MINING INDUSTRY TO APPOINT THE MEMBERS OF THE SCHEIDSGERECHT, TO DESIGNATE ITS CHAIRMAN AND TO LAY DOWN ITS RULES OF PROCEDURE .

THE SCHEIDSGERECHT IS A PERMANENT BODY CHARGED WITH THE SETTLEMENT OF THE DISPUTES DEFINED IN GENERAL TERMS IN ARTICLE 89 OF THE RBFM, AND IT IS BOUND BY RULES OF ADVERSARY PROCEDURE SIMILAR TO THOSE USED BY THE ORDINARY COURTS OF LAW .

FINALLY, THE PERSONS REFERRED TO IN THE RBFM ARE COMPULSORILY MEMBERS OF THE BEAMBTENFONDS BY VIRTUE OF A REGULATION LAID DOWN BY THE MIJNINDUSTRIERAAD ( COUNCIL OF THE MINING INDUSTRY ), A BODY ESTABLISHED UNDER PUBLIC LAW . THEY ARE BOUND TO TAKE ANY DISPUTES BETWEEN THEMSELVES AND THEIR INSURER TO THE SCHEIDSGERECHT AS THE PROPER JUDICIAL BODY . THE SCHEIDSGERECHT IS BOUND TO APPLY RULES OF LAW .

IN THIS CASE THE QUESTION WHETHER RULES SUCH AS THE RBFM ARE COVERED BY REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNS THE INTERPRETATION OF THIS REGULATION, AND IT MUST BE EXAMINED IN THE CONTEXT OF THE FIRST QUESTION PUT BY THE SCHEIDSGERECHT .

IT FOLLOWS FROM THE ABOVE THAT THE SCHEIDSGERECHT SHOULD BE CONSIDERED A COURT OR TRIBUNAL WITHIN THE MEANING OF ARTICLE 177 . THEREFORE THE REQUEST FOR INTERPRETATION IS ADMISSIBLE .

II - SUBSTANCE

1 . THE FIRST QUESTION PUT BY THE SCHEIDSGERECHT

THE SCHEIDSGERECHT REQUESTS THE COURT TO STATE WHETHER THE PROVISIONS OF CHAPTER II OF THE RBFM CONCERNING THE SICKNESS FUND MANAGED BY THE BFM CONSTITUTES ' LEGISLATION ' IN THE SENSE IN WHICH THAT TERM IS USED IN REGULATION NO 3 . THE COURT IS FURTHER ASKED WHETHER THE SAID PROVISIONS ARE COVERED BY ANNEX B OF THE SAID REGULATION UNDER THE HEADING ' NETHERLANDS ' IN SUBPARAGRAPH ( I ) AND WHETHER THIS ANNEX THEREFORE APPLIES TO THE NON-MANUAL EMPLOYEES IN NETHERLANDS MINES COVERED BY THE AFOREMENTIONED PROVISIONS .

P.274

ACCORDING TO ARTICLE 177 OF THE EEC TREATY, THE COURT IS ONLY EMPOWERED TO GIVE JUDGMENT UPON THE INTERPRETATION OR VALIDITY OF THE TREATY AND OF ACTS OF THE INSTITUTIONS OF THE COMMUNITY, BUT HAS NO POWER TO APPLY THESE TO A SPECIFIC CASE .

THE COURT MUST ACCORDINGLY RESTRICT ITSELF TO EXTRACTING FROM THE QUESTION ASKED BY THE SCHEIDSGERECHT, IN THE LIGHT OF THE FACTS GIVEN BY THAT TRIBUNAL, ONLY THOSE MATTERS WHICH RELATE TO THE INTERPRETATION OF THE TREATY AND OF REGULATION NO 3 .

( A ) THE QUESTION ASKS FIRST WHETHER RULES GOVERNING SICKNESS INSURANCE FOR WORKERS AND THEIR SURVIVORS LAID DOWN AND OPERATED BY AN INSTITUTION ESTABLISHED UNDER PRIVATE LAW CAN BE CONSIDERED AS ' LEGISLATION ' WITHIN THE MEANING OF REGULATION NO 3 .

ACCORDING TO ARTICLE 1(B ) OF REGULATION NO 3, ' THE TERM " LEGISLATION " SHALL MEAN ALL LAWS, REGULATIONS AND OTHER ENFORCEABLE PROVISIONS...OF EACH MEMBER STATE RELATING TO THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY SET OUT IN ARTICLE 2(1 ) AND ( 2 ) OF THIS REGULATION '. THUS IN PARTICULAR IT MEANS SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY WHICH CONCERN SICKNESS BENEFITS .

THE EXPRESSION ' ENFORCEABLE PROVISIONS ' IS CLEARLY INTENDED TO COVER SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY WHICH ARE MANAGED BY INSTITUTIONS OTHER THAN THE PUBLIC AUTHORITIES, AND WHICH HAVE A CERTAIN FREEDOM OF ACTION IN RELATION TO THE LATTER .

ACCORDING TO ARTICLE 1(E ) OF REGULATION NO 3, ' THE TERM " INSTITUTION " SHALL MEAN...THE AGENCY OR AUTHORITY RESPONSIBLE FOR ENFORCING ALL OR PART OF THE LEGISLATION '.

THE JUXTAPOSITION OF THE TERMS ' AGENCY ' AND ' AUTHORITY ' MAKES IT CLEAR THAT REGULATION NO 3 ALSO APPLIES TO ENFORCEABLE PROVISIONS GOVERNING THE FUNCTIONING OF INSTITUTIONS ESTABLISHED UNDER PRIVATE LAW, ALL THE MORE SO AS THESE ARE NOT EXPRESSLY EXCLUDED BY ANY PROVISIONS OF REGULATION NO 3 .

THE CONCEPT OF ' ENFORCEABLE PROVISIONS ' THUS APPLIES TO RULES WHICH, WHILE BEING DRAWN UP AND APPLIED IN THE FORM OF PRIVATE LAW AND BY BODIES CONSTITUTED UNDER PRIVATE LAW, ARE INTEGRATED INTO A MEMBER STATE'S SOCIAL SECURITY SCHEME BY REASON OF THE FACT THAT THEY ARE DESIGNED TO SUPPLEMENT, OR BE A SUBSTITUTE FOR, LAWS AND REGULATIONS RELATING TO SOCIAL SECURITY . IT IS APPARENT THAT THERE IS IN REGULATION NO 3 A MANIFEST CONCERN NOT TO EXCLUDE FROM THE BENEFIT OF ITS PROVISIONS SCHEMES MANAGED OTHERWISE THAN BY THE STATE, AND WHICH, AT LEAST IN SEVERAL MEMBER STATES, COVER A LARGE PROPORTION OF THE SOCIAL SECURITY ARRANGEMENTS .

P.275

HOWEVER, THE DEFENDANT IN THE MAIN ACTION SAYS THAT THESE ARGUMENTS CANNOT BE CORRECT TO THE EXTENT THAT IF THE RULES AT ISSUE HAD NOT BEEN MADE, THE PERSONS CONCERNED WOULD NOT BE COMPULSORILY INSURED BY VIRTUE OF THE GENERAL SOCIAL SECURITY SCHEME . TO THIS EXTENT, THE SAID PROVISIONS CANNOT BE CONSIDERED AS BEING IN SUBSTITUTION FOR THE GENERAL SCHEME . THE DEFENDANT ALSO ARGUES THAT THE ARGUMENTS SET OUT ABOVE DO NOT APPLY TO A WORKER'S SURVIVORS, WHO ARE AFFILIATED MERELY ON AN OPTIONAL BASIS TO THE BODY TO WHICH THE SAID WORKER WAS FORMERLY COMPULSORILY AFFILIATED .

THE OBJECTION THAT MR VAASSEN WOULD HAVE BEEN EXEMPT FROM THE GENERAL SOCIAL SECURITY SCHEME IS NOT RELEVANT, SINCE IT IS CLEAR THAT THE QUESTION WHICH LED THE SCHEIDSGERECHT TO REFER THE CASE TO THE COURT IS WHETHER THE RULES AT ISSUE ARE, OR ARE NOT, PART OF A SPECIAL SCHEME WITHIN THE MEANING OF ARTICLE 2(2 ) OF REGULATION NO 3 . THERE CLEARLY IS SUCH A SPECIAL SCHEME WHEN A SPECIFIC GROUP OF WORKERS IS COMPULSORILY MADE SUBJECT TO A SPECIAL TYPE OF INSURANCE BY VIRTUE OF PUBLIC LAW . MOREOVER THE DEFENDANT IN THE MAIN ACTION APPEARS TO HAVE GRASPED THE ESSENCE OF THE MATTER WHEN IT STATES IN ITS OBSERVATIONS FIRST THAT ALL NON-MANUAL EMPLOYEES IN NETHERLANDS MINES ARE COMPULSORILY INSURED BY VIRTUE OF ARTICLE 33 OF THE REGULATION OF THE MIJNINDUSTRIERAAD OF 8 SEPTEMBER 1952, CONCERNING THE WORKING CONDITIONS OF APPRENTICES AND PERSONS EMPLOYED ON NON-MANUAL WORK IN THE MINES ( NEDERLANDSE STAATSCOURANT OF 23 SEPTEMBER 1952, NO 185 ), AND SECONDLY THAT SINCE THE SAID PROVISION HAS BEEN MADE BY A COMPETENT PUBLIC AUTHORITY, IT BELONGS TO THE DOMAIN OF PUBLIC LAW . HOWEVER, SHOULD A REFERENCE TO THE COURT BE MADE UNDER ARTICLE 177 OF THE TREATY, AS HAS OCCURRED IN THIS CASE, IT IS THEN FOR THE NATIONAL COURT TO EXAMINE WHETHER THE CONDITIONS REQUIRED FOR THE EXISTENCE OF A SPECIAL SCHEME ARE IN FACT MET, SO THAT THE ENFORCEABLE PROVISIONS COMPRISED IN THE SPECIAL SCHEME FALL WITHIN THE TERM ' LEGISLATION ' AS USED IN ARTICLE 1(B ) OF REGULATION NO 3 .

ONCE THE EXISTENCE OF A SPECIAL SCHEME HAS BEEN ESTABLISHED, REGULATIONS NOS 3 AND 4 APPLY TO THAT SCHEME IN ITS ENTIRETY, INCLUDING ANY PROVISIONS WHICH IT MAY CONTAIN CONCERNING THE VOLUNTARY AND OPTIONAL AFFILIATION OF FORMER INSURED PERSONS AND THEIR SURVIVORS .

( B ) IN THE SECOND PART OF ITS QUESTION THE SCHEIDSGERECHT REQUESTS THE COURT TO SAY WHETHER A NETHERLANDS SCHEME PROVIDING SICKNESS INSURANCE IN FAVOUR OF NON-MANUAL EMPLOYEES OF THE MINING INDUSTRY AND THEIR FAMILIES IS COVERED BY ANNEX B TO REGULATION NO 3, UNDER THE HEADING ' NETHERLANDS ' IN SUBPARAGRAPH ( I ), THE TEXT OF WHICH IS AS FOLLOWS : ' SICKNESS INSURANCE FOR MINEWORKERS ( BENEFITS IN CASH AND IN KIND IN THE EVENT OF SICKNESS AND MATERNITY ) '.

P.276

THE DEFENDANT IN THE MAIN ACTION THINKS THAT THE REPLY SHOULD BE IN THE NEGATIVE . IT STATES THAT THE DUTCH TEXT OF THE ABOVE PROVISION USES, AS EQUIVALENT TO THE WORD ' WORKERS ' THE EXPRESSION ' MIJNWERKERS ' WHICH, IN CONTRAST TO THE EXPRESSION ' WERKNEMERS ', ONLY REFERS TO MANUAL WORKERS AND THUS EXCLUDES NON-MANUAL WORKERS .

EVEN SUPPOSING THAT THIS INTERPRETATION OF THE TERM ' MIJNWERKERS ' BE CORRECT, WHICH SEEMS OPEN TO DOUBT, THE ARGUMENT OF THE DEFENDANT IN THE MAIN ACTION WOULD BY NO MEANS BE CONCLUSIVE . THE HEADING ' NETHERLANDS ' IN ANNEX B TO REGULATION NO 3 MENTIONS IN SUBPARAGRAPH ( A ) SICKNESS INSURANCE IN GENERAL, AND IN SUBPARAGRAPH ( I ) SICKNESS INSURANCE FOR MINEWORKERS . THUS IF A SPECIAL SCHEME OF SICKNESS INSURANCE, AS DEFINED ABOVE, DOES NOT FALL WITHIN SUBPARAGRAPH ( I ) IT MUST FALL WITHIN SUBPARAGRAPH ( A ), WHICH APPLIES WITHOUT DISTINCTION TO ALL ' WORKERS ' ( ' TRAVAILLEURS '; ' ARBEITSKRAEFTE ' AND ' ARBEITNEHMER '; ' LAVORATORI '; ' WERKNEMERS ') WITHIN THE MEANING OF ARTICLES 48 TO 51 OF THE TREATY, EXPRESSIONS WHICH ALSO INCLUDE NON - MANUAL WORKERS .

THE HEADING ' NETHERLANDS ' IN ANNEX B TO REGULATION NO 3 THUS COVERS BOTH THE GENERAL AND THE SPECIAL SOCIAL SECURITY SCHEMES PROVIDING FOR INSURANCE AGAINST SICKNESS .

2 . THE SECOND QUESTION PUT BY THE SCHEIDSGERECHT

IN ITS SECOND QUESTION, SUBMITTED IN THE EVENT OF THE FIRST QUESTION BEING ANSWERED IN THE AFFIRMATIVE, THE SCHEIDSGERECHT REQUESTS THE COURT TO SAY WHETHER A WORKER'S SURVIVOR ' IS ENTITLED TO THE BENEFITS REFERRED TO IN ARTICLE 22 OF REGULATION NO 3 AND SPECIFIED AT THE END OF ARTICLE 22(2 ) ':

- EVEN IF HE PERMANENTLY RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT OF THE SICKNESS INSURANCE INSTITUTION IN QUESTION;

- AND EVEN IF THE LEGISLATION APPLIED BY THAT INSTITUTION ONLY GRANTS THE SAID SURVIVOR THE RIGHT TO BE ADMITTED ' TO INSURANCE PROVIDING REIMBURSEMENT OUT OF THE SICKNESS FUND FOR THE COST OF MEDICAL TREATMENT, THE PROVISION OF MEDICINES, AND NURSING '.

( A ) AS TO THE FIRST STATE OF AFFAIRS SET OUT IN THE ABOVE QUESTION, IT APPEARS FROM THE CONTEXT OF THE DECISION TO REFER THE QUESTIONS TO THE COURT THAT THE SCHEIDSGERECHT IN FACT WISHES TO KNOW WHETHER REGULATION NO 3 FORBIDS A SOCIAL SECURITY INSTITUTION TO REFUSE TO ADMIT THE SURVIVOR OF A WORKER TO AN OPTIONAL SICKNESS INSURANCE SCHEME, BY REASON ONLY OF THE FACT THAT HE PERMANENTLY RESIDES IN A MEMBER STATE OTHER THAN THAT OF THE ORGANIZATION IN QUESTION .

ARTICLE 22(2 ) AND ( 3 ) OF REGULATION NO 3 GOVERN THE METHOD OF GRANTING SICKNESS BENEFITS TO ' THE BENEFICIARY OF A PENSION ' PAYABLE UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES, WHEN THIS BENEFICIARY IS PERMANENTLY RESIDENT IN THE TERRITORY OF A MEMBER STATE IN WHICH NONE OF THE INSTITUTIONS LIABLE FOR THE PAYMENT OF THE PENSION IS SITUATED . THESE PROVISIONS CERTAINLY COVER THE CASE WHERE SICKNESS INSURANCE NECESSARILY FOLLOWS FROM THE RIGHT TO A PENSION, THAT IS TO SAY, WHEN IT CONSTITUTES, IN A SENSE, A NECESSARY CONDITION OF THE PENSION SCHEME .

P.277

THE SAID PROVISIONS PRESUPPOSE LOGICALLY THAT THIS AFFILIATION TO A SICKNESS INSURANCE SCHEME CANNOT BE TERMINATED BECAUSE THE PERSON CONCERNED TRANSFERS HIS PERMANENT RESIDENCE TO A COUNTRY OTHER THAN THAT OR THOSE OF THE INSTITUTIONS LIABLE FOR THE PAYMENT OF THE BENEFITS IN QUESTION . FURTHERMORE THE ABOVE SUPPOSITION IS CONFIRMED BY ARTICLE 10(1 ) OF REGULATION NO 3, ACCORDING TO WHICH ' PENSIONS...PAYABLE UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT SUFFER REDUCTION, MODIFICATION, SUSPENSION, TERMINATION OR CONFISCATION BY REASON OF THE FACT THAT THE BENEFICIARY IS PERMANENTLY RESIDENT IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION LIABLE FOR PAYMENT IS SITUATED '.

ON THE OTHER HAND ARTICLE 22 DOES NOT EXPRESSLY MENTION THE CASE IN WHICH THE AFFILIATION OF THE BENEFICIARY OF THE PENSION TO A SICKNESS INSURANCE SCHEME IS ONLY PROVIDED FOR ON AN OPTIONAL BASIS . IT IS NECESSARY, THEREFORE, TO EXAMINE WHETHER, IN SPITE OF THE SILENCE OF THIS ARTICLE, IT NEVERTHELESS ALSO APPLIES IN SUCH A CASE .

ACCORDING TO THE TERMS OF ARTICLE 4(2 ) OF REGULATION NO 3 ITS PROVISIONS SHALL APPLY ' TO THE SURVIVORS OF WAGE-EARNERS OR ASSIMILATED WORKERS WHO WERE SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES '. THE GENERAL TERMS IN WHICH THIS PROVISION IS COUCHED SHOW THAT THE APPLICATION OF THE REGULATION IS NOT LIMITED TO WORKERS OR THEIR SURVIVORS WHO HAVE HAD EMPLOYMENT IN SEVERAL MEMBER STATES OR WHO ARE, OR HAVE BEEN, EMPLOYED IN ONE STATE, WHILST RESIDING OR HAVING RESIDED IN ANOTHER . THE REGULATION THUS APPLIES EVEN WHEN THE CHANGE OF RESIDENCE TO ANOTHER MEMBER STATE HAS BEEN EFFECTED NOT BY THE WORKER HIMSELF BUT BY HIS SURVIVOR . THIS INTERPRETATION CONFORMS WITH THE SPIRIT OF ARTICLES 48 TO 51 OF THE TREATY AS WELL AS WITH THAT OF REGULATION NO 3, WHICH IS, IN ADDITION TO PROTECTING THE MIGRANT WORKER STRICTO SENSU, TO PREVENT TERRITORIAL PROVISIONS FROM BEING APPLIED AGAINST WORKERS OR THEIR SURVIVORS IN MATTERS OF SOCIAL SECURITY .

FURTHERMORE IT FOLLOWS FROM ARTICLE 9(1 ) OF REGULATION NO 3 THAT THIS REGULATION APPLIES WITHOUT DISTINCTION ' TO COMPULSORY, VOLUNTARY OR OPTIONAL CONTINUED INSURANCE '. AND FROM ARTICLE 10(2 ) OF THIS REGULATION, READ IN CONJUNCTION WITH ANNEX E THERETO, IT FOLLOWS THAT IN EVERY CASE WHERE THE REGULATION INTENDS EXISTING TERRITORIAL PROVISIONS IN NATIONAL LEGAL SYSTEMS TO CONTINUE IN FORCE, IT SAYS SO EXPRESSLY . CONSEQUENTLY, EVEN WHEN AFFILIATION TO A SICKNESS INSURANCE SCHEME FOR A WORKER OR HIS SURVIVOR WHO IS ENTITLED TO A PENSION IS MERELY OPTIONAL, REGULATION NO 3 FORBIDS A NATIONAL INSTITUTION TO TERMINATE THIS AFFILIATION BECAUSE THE PERSON SO ENTITLED CHANGES HIS RESIDENCE TO A COUNTRY OTHER THAN THAT IN WHICH THE INSTITUTION IS SITUATED .

( B ) THE REQUEST FOR AN INTERPRETATION ALSO INQUIRES WHETHER ARTICLE 22, WHICH REFERS ONLY TO ' BENEFITS IN KIND ', APPLIES TO THE PROVISION OF MEDICAL TREATMENT, MEDICINES AND NURSING, GIVEN IN THE FORM OF REPAYMENT OF COSTS INCURRED .

CHAPTER 1 OF HEAD III OF REGULATION NO 3, ENTITLED ' SICKNESS, MATERNITY ', WHICH INCLUDES THE SAID ARTICLE 22, CONTRASTS ' BENEFITS IN KIND ' WITH ' CASH BENEFITS ' WITHOUT HOWEVER DEFINING EITHER TERM . IT IS NONETHELESS CLEAR THAT THE TERM ' BENEFITS IN KIND ' DOES NOT EXCLUDE THE POSSIBILITY THAT SUCH BENEFITS MAY COMPRISE PAYMENTS MADE BY THE DEBTOR INSTITUTION . FOR IT IS LOGICAL FOR SUCH AN INSTITUTION TO MAKE SUCH PAYMENTS IN THE CASES EXPRESSLY REFERRED TO IN ARTICLE 19(5 ) OF REGULATION NO 3 AS ' BENEFITS IN KIND ', NAMELY THE PROVISION OF ' PROSTHESES ' AND ' MAJOR APPLIANCES '. A FURTHER POINT IS THAT THE PROVISIONS OF THE SAID CHAPTER I OF HEAD III DRAW NO DISTINCTION BETWEEN MAKING THE SAID PAYMENTS DIRECTLY TO THE PERSON CONCERNED AND PAYMENT THEM TO THIRD PERSONS . FINALLY, ARTICLE 18 OF THE REGULATION ALLOWS OF THE INTERPRETATION THAT ' CASH BENEFITS ' ARE ESSENTIALLY THOSE DESIGNED TO COMPENSATE FOR A WORKER'S LOSS OF EARNINGS THROUGH ILLNESS . THUS IT IS CONCERNED WITH AN ENTIRELY DIFFERENT SITUATION FROM THE ONE UNDER CONSIDERATION .

IT FOLLOWS FROM ALL THE ABOVE FACTORS THAT ARTICLE 22 APPLIES EQUALLY WHEN BENEFITS, SUCH AS THOSE REFERRED TO BY THE SCHEIDSGERECHT, ARE GRANTED IN THE FORM OF REIMBURSEMENT OF EXPENSES INCURRED .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE SCHEIDSGERECHT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF, THE DECISION ON COSTS IS A MATTER FOR THAT TRIBUNAL .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE SCHEIDSGERECHT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF BY ORDER OF THAT TRIBUNAL DATED 10 DECEMBER 1965

HEREBY RULES :

1 . RULES GOVERNING SICKNESS INSURANCE FOR WORKERS AND THEIR SURVIVORS, LAID DOWN AND OPERATED BY AN INSTITUTION ESTABLISHED UNDER PRIVATE LAW, SINCE THEY ARE ' ENFORCEABLE PROVISIONS ', FALL WITHIN ' LEGISLATION ' WITHIN THE MEANING OF ARTICLES 1(B ) AND 4 OF REGULATION NO 3 WHEN THE SAID PROVISIONS SUPPLEMENT OR ARE A SUBSTITUTE FOR LAWS AND REGULATIONS ESTABLISHING A GENERAL OR SPECIAL SOCIAL SECURITY SCHEME;

2 . ANNEX B, HEADING ' NETHERLANDS ', OF REGULATION NO 3 OF THE COUNCIL OF THE EEC IS APPLICABLE TO BOTH GENERAL AND SPECIAL SOCIAL SECURITY SCHEMES PROVIDING INSURANCE AGAINST SICKNESS FOR NON-MANUAL WORKERS IN THE MINING INDUSTRY;

3 . UNDER REGULATION NO 3 AN INSTITUTION MANAGING A SICKNESS INSURANCE SCHEME MAY NOT REFUSE TO GIVE THE BENEFIT OF AFFILIATION TO THE SCHEME, EVEN AN OPTIONAL SCHEME, TO A WORKER'S SURVIVOR ENTITLED TO A PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE, IF THE REASON FOR SO REFUSING IS THAT THE PERSON SO ENTITLED PERMANENTLY RESIDES IN A MEMBER STATE OTHER THAN THE ONE IN WHICH THE SAID INSTITUTION IS SITUATED;

4 . ARTICLE 22 OF REGULATION NO 3 ALSO APPLIES TO BENEFITS GIVEN IN THE FORM OF REIMBURSEMENT OF EXPENSES FOR MEDICAL TREATMENT, MEDICINES AND NURSING, AND DECLARES :

5 . THE DECISION ON COSTS IN THE PRESENT PROCEEDINGS IS A MATTER FOR THE SCHEIDSGERECHT VAN HET BEAMBTENFONDS VOOR HET MIJNBEDRIJF .