61977J0084

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL SCHEME APPLICABLE TO ALL RESIDENTS - APPLICATION TO A NATIONAL OF ANOTHER MEMBER STATE - COMMUNITY RULES - BENEFIT - GRANT - CONDITION - STATUS AS EMPLOYED PERSON - DEFINITION WITH REGARD TO BRITISH LEGISLATION - CRITERION - PAYMENT OF SOCIAL SECURITY CONTRIBUTIONS

( REGULATION NO 1408/71 , ART . 1 ( A ) ( II ) AND ANNEX V )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - EMPLOYED PERSON - INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE - ACQUISITION OF A RIGHT - ACCRUED RIGHTS - TAKING INTO ACCOUNT

( REGULATION NO 1408/71 , ART . 18 )

1 . A NATIONAL OF A MEMBER STATE WHO , IN ANOTHER MEMBER STATE , HAS BEEN SUBJECT TO A SOCIAL SECURITY SCHEME WHICH IS APPLICABLE TO ALL RESIDENTS CAN BENEFIT FROM THE PROVISIONS OF REGULATION 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 ONLY IF HE CAN BE IDENTIFIED AS AN EMPLOYED PERSON WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF THAT REGULATION .

AS REGARDS THE UNITED KINGDOM IN PARTICULAR , IN THE ABSENCE OF ANY OTHER CRITERION , SUCH IDENTIFICATION DEPENDS BY VIRTUE OF ANNEX V TO THAT REGULATION ON WHETHER HE WAS REQUIRED TO PAY SOCIAL SECURITY CONTRIBUTIONS AS AN EMPLOYED PERSON .

2 . RIGHTS ACQUIRED BY A PERSON WHO CAN BE IDENTIFIED AS A WORKER WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71 DURING HIS RESIDENCE IN A MEMBER STATE MUST BE TAKEN INTO ACCOUNT BY ANY OTHER MEMBER STATE AS IF THEY WERE PERIODS REQUIRED FOR THE ACQUISITION OF A RIGHT UNDER ITS OWN LEGISLATION .

IN CASE 84/77

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE FRENCH COUR DE CASSATION FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CAISSE PRIMAIRE D ' ASSURANCE MALADIE D ' EURE-ET-LOIR , CHARTRES ,

AND

ALICIA TESSIER , NEE RECQ , RESIDING IN PARIS ,

ON THE INTERPRETATION , AS REGARDS THE EFFECTS IN THE FIELD OF SOCIAL SECURITY OF AN AU PAIR PLACEMENT , OF REGULATION 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 ,

1BY A JUDGMENT OF 3 JUNE 1977 , WHICH WAS RECEIVED AT THE COURT ON 5 JULY 1977 , THE FRENCH COUR DE CASSATION , SOCIAL CHAMBER , REFERRED TO THE COURT FOR A PRELIMINARY RULING , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS CONCERNING THE DETERMINATION OF THE FIELD OF APPLICATION 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 ) CONCERNING THE POSITION WITH REGARD TO THE FRENCH SICKNESS INSURANCE SCHEME OF A PERSON WHO IN THE UNITED KINGDOM HAD BEEN COVERED BY A SOCIAL SECURITY SCHEME APPLICABLE TO ALL RESIDENTS .

2IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT AFTER COMPLETING HER SCHOOLING IN FRANCE , MRS TESSIER ( WHO AT THE TIME OF THE FACTS GIVING RISE TO THE ACTION WAS MISS RECQ ), THE RESPONDENT IN THE MAIN PROCEEDINGS , STAYED FOR A CERTAIN TIME IN GREAT BRITAIN WORKING AS AN AU PAIR AND ATTENDING EVENING CLASSES .

3DURING THAT TIME SHE WAS ENTITLED TO USE THE NATIONAL HEALTH SERVICE WHICH IS APPLICABLE TO ALL PERSONS ORDINARILY RESIDENT IN THE UNITED KINGDOM BUT IT IS NOT POSSIBLE TO ESTABLISH FROM THE FACTS CONTAINED IN THE FILE WHETHER OR NOT SHE WAS OBLIGED TO PAY CONTRIBUTIONS UNDER THE BRITISH SOCIAL SECURITY LEGISLATION .

4AFTER HER RETURN TO FRANCE SHE REGISTERED AS A PERSON SEEKING EMPLOYMENT AND IN RESPECT OF MEDICAL TREATMENT RECEIVED IN THAT STATE SHE APPLIED FOR FRENCH SICKNESS INSURANCE BENEFITS FROM THE CAISSE PRIMAIRE D ' ASSURANCE MALADIE D ' EURE-ET-LOIR BY WHICH SHE HAD PREVIOUSLY BEEN COVERED AS A DEPENDANT OF HER FATHER WHO WAS INSURED BY THAT SICKNESS FUND .

5HOWEVER THE SICKNESS FUND REFUSED TO GRANT THE BENEFITS APPLIED FOR ON THE GROUNDS THAT HAVING COMPLETED HER SCHOOLING MRS TESSIER HAD LOST THE STATUS OF A DEPENDANT OF HER FATHER WITHOUT ACQUIRING A PERSONAL RIGHT UNDER THE SOCIAL SECURITY LEGISLATION APPLICABLE AS SHE WAS UNABLE TO SHOW THAT SHE HAD COMPLETED THE REQUISITE NUMBER OF HOURS OF EMPLOYMENT OR ASSIMILATED WORK DURING A REFERENCE PERIOD LAID DOWN UNDER ARTICLE 249 L OF THE SOCIAL SECURITY CODE AND BECAUSE SHE COULD NOT BE CONSIDERED A MIGRANT WORKER WITHIN THE MEANING OF REGULATION NO 1408/71 .

6FOLLOWING AN APPLICATION BY MRS TESSIER THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE OF CHARTRES , BY DECISION OF 12 MARCH 1975 , ORDERED THE SICKNESS FUND TO PAY MRS TESSIER ' S SICKNESS COSTS TAKING ACCOUNT OF THE SOCIAL SECURITY STATUS WHICH SHE HAD ACQUIRED UNDER THE BRITISH LEGISLATION .

7THE CAISSE PRIMAIRE D ' ASSURANCE MALADIE LODGED AN APPEAL ON A POINT OF LAW AGAINST THAT DECISION AND THE COUR DE CASSATION TOOK THE VIEW THAT EVEN IF MRS TESSIER COULD NOT CLAIM TO BE A DEPENDANT OF HER FATHER IN ORDER TO RECEIVE SOCIAL SECURITY BENEFITS ON HER RETURN TO FRANCE , THE QUESTION AROSE WHETHER SHE MIGHT NOT BE ENTITLED TO CLAIM THE BENEFITS IN HER OWN RIGHT BY VIRTUE OF REGULATION NO 1408/71 BECAUSE SHE COULD HAVE BEEN REGARDED AS AN INSURED PERSON UNDER THAT REGULATION FOR THE DURATION OF HER STAY IN GREAT BRITAIN IN ACCORDANCE WITH THE LOCAL LEGISLATION WITH THE RESULT THAT THAT INSURANCE PERIOD WOULD HAVE TO BE ASSIMILATED TO THE REFERENCE PERIOD LAID DOWN BY FRENCH LAW .

8IN ORDER TO SETTLE THIS POINT OF LAW THE COUR DE CASSATION ASKS :

' 1 . WHETHER A NATIONAL OF A MEMBER STATE WHO , WHILE RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE FOR THE PURPOSES OF WORKING THERE AU PAIR AND , AT THE SAME TIME , OF FOLLOWING A PART-TIME COURSE OF STUDY , RECEIVES IN THAT STATE SOCIAL SECURITY BENEFITS IN KIND , IS A MIGRANT WORKER WITHIN THE MEANING OF ARTICLE 1 OF REGULATION NO 1408/71 ;

2 . WHETHER THE RIGHTS ACQUIRED BY SUCH A NATIONAL DURING HIS STAY MUST BE TAKEN INTO ACCOUNT BY ANY OTHER MEMBER STATE AS IF THEY WERE PERIODS LAID DOWN FOR THE ACQUISITION OF A RIGHT UNDER ITS OWN LEGISLATION ' .

9ACCORDING TO THE WORDING OF ARTICLE 2 OF REGULATION NO 1408/71 THE REGULATION IS APPLICABLE IN PARTICULAR TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES AND WHO ARE NATIONALS OF ONE OF THE MEMBER STATES .

10UNDER ARTICLE 1 ( A ) ( II ) OF THE REGULATION ' WORKER ' MEANS INTER ALIA ' 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 ' .

11AS REGARDS THE UNITED KINGDOM THE FOLLOWING PROVISION WAS ADDED TO ANNEX V OF THE REGULATION BY THE ACT OF ACCESSION :

' ALL PERSONS REQUIRED TO PAY CONTRIBUTIONS AS EMPLOYED WORKERS SHALL BE REGARDED AS WORKERS FOR THE PURPOSES OF ARTICLE 1 ( A ) ( II ) OF THE REGULATION ' ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 27 MARCH 1972 , P . 113 ).

12FROM ALL THESE PROVISIONS IT FOLLOWS THAT WHATEVER THE OCCUPATIONAL STATUS OF A NATIONAL OF A MEMBER STATE WHO HAS RESIDED IN GREAT BRITAIN IN CONDITIONS SUCH THAT HE WAS SUBJECT TO A SOCIAL SECURITY SCHEME APPLICABLE TO ALL RESIDENTS , THE APPLICABILITY TO HIM OF REGULATION NO 1408/71 DEPENDS ON WHETHER HE CAN BE ' IDENTIFIED ' AS AN EMPLOYED PERSON .

13IN THE ABSENCE OF ANY CRITERIA BASED ON THE MANNER IN WHICH THE SCHEME IS ADMINISTERED OR FINANCED , PURSUANT TO THE FIRST INDENT OF ARTICLE 1 ( A ) ( II ), FOR THE UNITED KINGDOM SUCH IDENTIFICATION DEPENDS BY VIRTUE OF THE SECOND INDENT AND OF ANNEX V ON WHETHER THE PERSON CONCERNED WAS REQUIRED TO PAY SOCIAL SECURITY CONTRIBUTIONS AS AN EMPLOYED PERSON .

14IT IS FOR THE COMPETENT NATIONAL AUTHORITIES TO ESTABLISH WHETHER OR NOT THAT CONDITION IS FULFILLED IN A PARTICULAR CASE .

15IF A PERSON CAN BE THUS IDENTIFIED AS A ' WORKER ' WITHIN THE MEANING OF REGULATION NO 1408/71 IT FOLLOWS THAT IN ACCORDANCE WITH ARTICLE 18 ( 1 ) OF THAT REGULATION THE INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION , RETENTION OR RECOVERY OF ENTITLEMENT TO BENEFITS CONDITIONAL UPON THE COMPLETION OF INSURANCE OR EMPLOYMENT PERIODS MUST , IN SO FAR AS IS NECESSARY , TAKE INTO ACCOUNT THE INSURANCE OR EMPLOYMENT PERIODS COMPLETED UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE AS THOUGH SUCH PERIODS HAD BEEN COMPLETED UNDER ITS OWN LEGISLATION .

16A REPLY TO THIS EFFECT SHOULD THEREFORE BE GIVEN TO THE QUESTIONS REFERRED TO THE COURT BY THE COUR DE CASSATION .

COSTS

17THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

18AS THESE PROCEEDINGS ARE , 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 REFERRED TO IT BY THE FRENCH COUR DE CASSATION BY JUDGMENT OF 3 JUNE 1977 , HEREBY RULES :

1 . A NATIONAL OF A MEMBER STATE WHO , IN ANOTHER MEMBER STATE , HAS BEEN SUBJECT TO A SOCIAL SECURITY SCHEME WHICH IS APPLICABLE TO ALL RESIDENTS CAN BENEFIT FROM THE PROVISIONS OF REGULATION 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 ONLY IF HE CAN BE IDENTIFIED AS AN EMPLOYED PERSON WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF THAT REGULATION . AS REGARDS THE UNITED KINGDOM IN PARTICULAR , IN THE ABSENCE OF ANY OTHER CRITERION , SUCH IDENTIFICATION DEPENDS BY VIRTUE OF ANNEX V TO THAT REGULATION ON WHETHER HE WAS REQUIRED TO PAY SOCIAL SECURITY CONTRIBUTIONS AS AN EMPLOYED PERSON .

2 . RIGHTS ACQUIRED BY A PERSON WHO CAN BE IDENTIFIED AS A WORKER WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71 DURING HIS RESIDENCE IN A MEMBER STATE MUST BE TAKEN INTO ACCOUNT BY ANY OTHER MEMBER STATE AS IF THEY WERE PERIODS REQUIRED FOR THE ACQUISITION OF A RIGHT UNDER ITS OWN LEGISLATION .