61983J0181

SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - CALCULATION OF BENEFITS - DETERMINATION OF THE THEORETICAL AMOUNT - AMOUNT OF BENEFITS INDEPENDENT OF THE LENGTH OF THE INSURANCE PERIODS - ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 NOT APPLICABLE

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 47 ( 1 ))

THE CONTINGENCIES REFERRED TO IN ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 DO NOT COVER THE CASE OF A SCHEME OF INVALIDITY BENEFITS UNDER WHICH THE AMOUNT OF BENEFIT DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS AND WHICH , FOR THE CALCULATION OF THE LOSS OF EARNINGS , IS BASED PRIMARILY ON THE WAGE RECEIVED IN THE OCCUPATION USUALLY CARRIED ON BY THE PERSON CONCERNED , AND FOR THAT PURPOSE TAKES ACCOUNT EITHER OF THE FIXED SALARY LAST RECEIVED BY THE PERSON CONCERNED IN THAT OCCUPATION BEFORE HE BECAME INCAPACITATED FOR WORK , OR OF THE AVERAGE WAGE RECEIVED BY HIM OVER A CERTAIN NUMBER OF DAYS ( WHICH MUST NOT FALL MORE THAN TWO YEARS BEFORE HE BECAME INCAPACITATED FOR WORK ).

IN CASE 181/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ), UTRECHT , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

A . WEBER

AND

BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( BOARD OF THE NEW GENERAL TRADE ASSOCIATION )

ON THE INTERPRETATION OF ARTICLE 47 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 ),

1 BY AN ORDER DATED 15 AUGUST 1983 , WHICH WAS RECEIVED AT THE COURT ON 24 AUGUST 1983 , THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ), UTRECHT , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION 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 WERE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN A WORKER OF NETHERLANDS NATIONALITY , MR WEBER , WHO IS THE PLAINTIFF IN THE MAIN PROCEEDINGS , AND THE BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( BOARD OF THE NEW GENERAL TRADE ASSOCIATION ), A NETHERLANDS SOCIAL SECURITY INSTITUTION , WHICH IS THE DEFENDANT IN THE MAIN PROCEEDINGS .

3 THE PLAINTIFF IN THE MAIN PROCEEDINGS WAS EMPLOYED IN THE NETHERLANDS FROM 1932 TO 1950 AS A ROAD-WORKER , AND PAID CONTRIBUTIONS UNDER THE NETHERLANDS INVALIDITY LAW FROM 25 JUNE 1933 ONWARDS . HE SUBSEQUENTLY WORKED IN THE NETHERLANDS AS A SELF-EMPLOYED PAVING CONTRACTOR FROM MAY 1950 TO OCTOBER 1972 . AS A SELF-EMPLOYED PERSON HE PAID VOLUNTARY CONTRIBUTIONS UNDER THE AFORESAID LAW UNTIL 1 JANUARY 1965 .

4 ON 15 DECEMBER 1972 THE PLAINTIFF MOVED TO THE FEDERAL REPUBLIC OF GERMANY , WHERE HE TOOK UP EMPLOYMENT ON 14 MAY 1973 AS A SURVEYOR ' S ASSISTANT . ON 11 JUNE 1974 HE BECAME INCAPACITATED FOR WORK . ON 17 SEPTEMBER 1974 HE RETURNED TO THE NETHERLANDS .

5 IN 1975 THE PLAINTIFF CLAIMED DISABILITY BENEFIT FROM THE DEFENDANT . BY A DECISION OF 29 SEPTEMBER 1977 THE DEFENDANT GRANTED HIM A PRO RATA BENEFIT UNDER THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING ( NETHERLANDS LAW ON DISABILITY INSURANCE ) AS FROM 1 SEPTEMBER 1975 , ON WHICH DATE HE CEASED TO RECEIVE DAILY SICKNESS BENEFITS .

6 UNDER THE PROVISIONS OF THE LAW ON DISABILITY INSURANCE THE DISABILITY BENEFIT IS CALCULATED BY REFERENCE TO THE AVERAGE AMOUNT ( ' ' THE DAILY WAGE ' ' ) WHICH THE CLAIMANT COULD HAVE EARNED DURING THE FOLLOWING YEAR , CALCULATED IN ACCORDANCE WITH THE WAGE LEVEL APPLICABLE ON THE DATE ON WHICH HE QUALIFIED FOR THE BENEFIT , IF HE HAD NOT BEEN INCAPACITATED FOR WORK AND HAD CARRIED ON HIS USUAL OCCUPATION OR OCCUPATIONS . WHERE THE WORKER USUALLY CARRIED ON ONLY ONE OCCUPATION , THE DAILY WAGE IS CALCULATED ON THE BASIS OF THE AVERAGE WAGE WHICH HE EARNED IN THAT OCCUPATION IN THE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH HE BECAME INCAPACITATED FOR WORK , ACCOUNT BEING TAKEN OF THE DAYS IN THAT YEAR ON WHICH HE WAS ENGAGED IN THAT OCCUPATION DURING AT LEAST HIS NORMAL WORKING HOURS . IMPLEMENTING PROVISIONS DEFINE FURTHER THE METHOD FOR CALCULATING THE DAILY WAGE .

7 THE DEFENDANT TOOK THE VIEW THAT THE OCCUPATION OF SURVEYOR ' S ASSISTANT , IN WHICH THE PLAINTIFF WAS LAST ENGAGED IN THE FEDERAL REPUBLIC OF GERMANY , SHOULD BE REGARDED AS HIS USUAL OCCUPATION ; ACCORDINGLY ; IT CALCULATED THE BENEFIT BY REFERENCE TO THE WAGE RECEIVED IN THAT OCCUPATION . THE PLAINTIFF DISAGREED WITH THAT METHOD OF CALCULATION AND BROUGHT AN ACTION AGAINST THE DEFENDANT ' S DECISION , MAINTAINING THAT , UNDER ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 , IN THE CIRCUMSTANCES SPECIFIED IN SUBPARAGRAPHS ( A ) TO ( D ), THE COMPETENT INSTITUTION OF A MEMBER STATE MUST CALCULATE THE THEORETICAL AMOUNT REFERRED TO IN ARTICLE 46 ( 2 ) ON THE BASIS OF THE WAGES EARNED DURING THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF THE MEMBER STATE IN QUESTION , THAT IS TO SAY , IN THE PRESENT INSTANCE , THE NETHERLANDS .

8 THE CENTRALE RAAD VAN BEROEP , TO WHICH THE CASE CAME ON APPEAL , TOOK THE VIEW THAT ITS DECISION DEPENDED ON THE INTERPRETATION OF THE COMMUNITY REGULATION ; IT THEREFORE REFERRED THE FOLLOWING PRELIMINARY QUESTIONS TO THE COURT :

' ' 1 . ARE THE PROVISIONS OF ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 ALSO APPLICABLE IN CASES IN WHICH THE SECOND SENTENCE OF ARTICLE 46 ( 2 ) ( A ) OF THE REGULATION APPLIES?

2.IF SO , MUST SUBPARAGRAPH ( A ) AND/OR SUBPARAGRAPH ( B ) OF ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 , HAVING REGARD TO THEIR WORDING AND THEIR PURPOSE , BE INTERPRETED AS APPLYING TO A SCHEME RELATING TO INVALIDITY BENEFITS WHICH :

( A ) IS A RISK SCHEME ;

( B)IS NOT BASED , FOR THE CALCULATION OF THE BENEFIT , ON THE WAGES EARNED DURING ALL THE INSURANCE PERIODS COMPLETED ;

BUT

( C)IS BASED PRIMARILY - FOR THE DETERMINATION OF THE WAGES LOST - ON THE WAGE RECEIVED IN THE OCCUPATION USUALLY CARRIED ON ;

AND

( D)IN THAT CONNECTION , TAKES INTO ACCOUNT EITHER THE LAST FIXED WAGE RECEIVED BY THE PERSON CONCERNED IN THAT OCCUPATION BEFORE HE BECAME INCAPACITATED FOR WORK OR THE AVERAGE WAGE RECEIVED DURING A SPECIFIC PERIOD ( NOT MORE THAN TWO YEARS BEFORE HE BECAME INCAPACITATED FOR WORK)?

3.IF THE PREVIOUS QUESTION IS ANSWERED IN THE AFFIRMATIVE , IS THERE ANYTHING TO PREVENT A MEMBER STATE FROM PROCEEDING , FOR THE CALCULATION OF THE THEORETICAL AMOUNT OF THE INVALIDITY BENEFIT REFERRED TO IN ARTICLE 46 ( 2 ) ( A)OF REGULATION NO 1408/71 , ON THE BASIS OF THE LAST WAGE RECEIVED BY THE PERSON CONCERNED IN ANOTHER MEMBER STATE BEFORE HE BECAME INCAPACITATED FOR WORK?

' '

9 IT IS APPARENT FROM THE INFORMATION BEFORE THE COURT THAT THE PLAINTIFF IS ENTITLED TO INVALIDITY BENEFIT BY VIRTUE OF THE LAWS OF TWO MEMBER STATES , ONE OF WHICH - THE NETHERLANDS - HAS LEGISLATION OF THE TYPE REFERRED TO BY ARTICLE 37 ( 1 ) OF REGULATION NO 1408/71 . UNDER SUCH LEGISLATION ( KNOWN AS ' ' TYPE A ' ' ) THE AMOUNT OF INVALIDITY BENEFIT IS INDEPENDENT OF THE LENGTH OF THE INSURANCE PERIODS COMPLETED . THE LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY , ON THE OTHER HAND , MAKES THE ACQUISITION , MAINTENANCE OR RECOVERY OF ENTITLEMENT TO BENEFIT SUBJECT TO THE COMPLETION OF A CERTAIN NUMBER OF INSURANCE PERIODS ( ' ' TYPE B ' ' LEGISLATION ).

10 ARTICLE 40 ( 1 ) OF THE REGULATION PROVIDES AS FOLLOWS :

' ' A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATIONS OF TWO OR MORE MEMBER STATES , OF WHICH AT LEAST ONE IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ), SHALL RECEIVE BENEFITS UNDER THE PROVISIONS OF CHAPTER 3 , WHICH SHALL APPLY BY ANALOGY , TAKING INTO ACCOUNT THE PROVISIONS OF PARAGRAPH 3 . ' '

11 THAT PROVISION IS THEREFORE APPLICABLE IN THIS INSTANCE .

12 THE PLAINTIFF ' S RIGHT TO CLAIM INVALIDITY BENEFIT IN THE NETHERLANDS IS NOT CONTESTED . THE DISPUTE IS SOLELY CONCERNED WITH THE METHOD OF CALCULATING THE BENEFIT . SINCE THE PLAINTIFF WAS SUBJECT TO THE LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY AT THE TIME WHEN THE RISK MATERIALIZED , ARTICLE 46 ( 2 ) APPLIES TO THE DETERMINATION OF THE THEORETICAL AMOUNT AND THE ACTUAL AMOUNT OF THE BENEFIT TO BE DISBURSED BY THE NETHERLANDS INSTITUTION . THE THEORETICAL AMOUNT IS THE AMOUNT OF BENEFIT WHICH THE PERSON CONCERNED COULD CLAIM IF ALL THE INSURANCE PERIODS AND RESIDENCE PERIODS COMPLETED UNDER THE LEGISLATION OF THE MEMBER STATES TO WHICH THE WORKER HAS BEEN SUBJECT HAD BEEN COMPLETED IN THE MEMBER STATE IN QUESTION AND UNDER THE LEGISLATION ADMINISTERED BY IT ON THE DATE WHEN THE BENEFIT IS AWARDED . IF , UNDER THAT LEGISLATION , THE AMOUNT OF BENEFIT DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS COMPLETED , THEN THAT AMOUNT IS TAKEN AS THE THEORETICAL AMOUNT OF THE BENEFIT .

13 THE FIRST TWO QUESTIONS RAISED BY THE NATIONAL COURT SEEK TO ASCERTAIN WHETHER ARTICLE 47 OF THE REGULATION IS ALSO APPLICABLE WHEN THE SECOND SENTENCE OF ARTICLE 46 ( 2 ) ( A ) APPLIES , IN THE CIRCUMSTANCES DESCRIBED BY THE SECOND QUESTION .

14 ARTICLE 47 ( 1 ) LAYS DOWN SPECIAL RULES WHICH APPLY TO THE PARTICULAR CASES ENVISAGED THEREIN . THE RULE IN SUBPARAGRAPH ( A ) APPLIES IN A CASE WHERE , UNDER THE LEGISLATION OF A MEMBER STATE , BENEFITS ARE CALCULATED ON THE BASIS OF AVERAGE EARNINGS , AN AVERAGE CONTRIBUTION , AN AVERAGE INCREASE OR ON THE RATIO WHICH EXISTED , DURING THE INSURANCE PERIODS , BETWEEN THE CLAIMANT ' S GROSS EARNINGS AND THE AVERAGE GROSS EARNINGS OF ALL INSURED PERSONS OTHER THAN APPRENTICES . THE RULE IN SUBPARAGRAPH ( B ) APPLIES IN CASES WHERE THE LEGISLATION PROVIDES THAT BENEFITS ARE TO BE CALCULATED ON THE BASIS OF THE AMOUNT OF EARNINGS , CONTRIBUTIONS OR INCREASES , AND WHERE PERIODS OF INSURANCE OR RESIDENCE IN ANOTHER MEMBER STATE ARE TAKEN INTO ACCOUNT . THE RULE IN SUBPARAGRAPH ( C ) APPLIES IN CASES WHERE THE LEGISLATION PROVIDES THAT BENEFITS ARE TO BE CALCULATED ON THE BASIS OF STANDARD EARNINGS OR A FIXED AMOUNT . THE RULE IN SUBPARAGRAPH ( D ) APPLIES IN CASES WHERE THE LEGISLATION PROVIDES THAT BENEFITS ARE TO BE CALCULATED , FOR SOME PERIODS , ON THE BASIS OF THE AMOUNT OF EARNINGS AND , FOR OTHER PERIODS , ON THE BASIS OF STANDARD EARNINGS OR A FIXED AMOUNT .

15 NONE OF THOSE RULES DEALS WITH A SYSTEM OF DISABILITY BENEFITS SUCH AS THE ONE DESCRIBED BY THE SECOND QUESTION , NAMELY A SYSTEM UNDER WHICH THE AMOUNT OF BENEFIT IS UNRELATED TO THE LENGTH OF THE INSURANCE PERIODS AND WHICH , FOR THE PURPOSE OF CALCULATING THE LOSS OF EARNINGS , IS BASED PRIMARILY ON THE WAGE RECEIVED IN THE USUAL OCCUPATION OF THE PERSON CONCERNED AND , IN THAT CONNECTION , TAKES INTO ACCOUNT EITHER THE LAST FIXED WAGE RECEIVED BY THAT PERSON IN THAT OCCUPATION BEFORE HE BECAME INCAPACITATED FOR WORK OR THE AVERAGE WAGE RECEIVED BY HIM DURING A SPECIFIC PERIOD ( NOT MORE THAN TWO YEARS BEFORE HE BECAME INCAPACITATED FOR WORK ). IT FOLLOWS THAT , AS THE WORDING OF ARTICLE 46 ( 2 ) ( A ) ITSELF INDICATES , THE THEORETICAL AMOUNT IS TO BE CALCULATED SOLELY IN ACCORDANCE WITH THE LEGISLATION ADMINISTERED BY THE NATIONAL INSTITUTION .

16 IN THOSE CIRCUMSTANCES THE THIRD QUESTION SERVES NO FURTHER PURPOSE .

17 THE ANSWER TO THE QUESTIONS SUBMITTED BY THE NATIONAL COURT IS THEREFORE THAT THE CASES ENVISAGED BY ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 DO NOT INCLUDE THE CASE OF A SYSTEM OF DISABILITY BENEFITS UNDER WHICH THE AMOUNT OF BENEFIT DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS COMPLETED AND WHICH , FOR THE CALCULATION OF THE LOSS OF EARNINGS , IS BASED PRIMARILY ON THE WAGE RECEIVED IN THE USUAL OCCUPATION OF THE PERSON CONCERNED AND , IN THAT CONNECTION , TAKES INTO ACCOUNT EITHER THE LAST FIXED WAGE RECEIVED BY HIM IN THAT OCCUPATION BEFORE HE BECAME INCAPACITATED FOR WORK OR THE AVERAGE WAGE RECEIVED BY HIM DURING A SPECIFIC PERIOD ( NOT MORE THAN TWO YEARS BEFORE HE BECAME INCAPACITATED FOR WORK ).

COSTS

18 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

19 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE BESTUUR VAN DE NIEUWE ALGEMENE BEDRIJFSVERENIGING IS CONCERNED , A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP , BY AN ORDER DATED 9 AUGUST 1983 , HEREBY RULES AS FOLLOWS :

THE CASES ENVISAGED BY ARTICLE 47 ( 1 ) OF REGULATION NO 1408/71 DO NOT INCLUDE THE CASE OF A SYSTEM OF DISABILITY BENEFITS UNDER WHICH THE AMOUNT OF BENEFIT DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS COMPLETED AND WHICH , FOR THE CALCULATION OF THE LOSS OF EARNINGS , IS BASED PRIMARILY ON THE WAGE RECEIVED IN THE USUAL OCCUPATION OF THE PERSON CONCERNED AND , IN THAT CONNECTION , TAKES INTO ACCOUNT EITHER THE LAST FIXED WAGE RECEIVED BY HIM IN THAT OCCUPATION BEFORE HE BECAME INCAPACITATED FOR WORK OR THE AVERAGE WAGE RECEIVED BY HIM DURING A SPECIFIC PERIOD ( NOT MORE THAN TWO YEARS BEFORE HE BECAME INCAPACITATED FOR WORK ).