61972J0082

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SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY SYSTEM OF REGULATIONS - REPLACEMENT OF SOCIAL SECURITY CONVENTIONS BETWEEN MEMBER STATES - MANDATORY NATURE

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 5, ARTICLE 6 ( 2 ); REGULATION NO 1408/71 OF THE COUNCIL - ARTICLE 6 AND ARTICLE 7 )

UNDER ARTICLES 5 AND 6 OF REGULATION NO 3, THAT REGULATION REPLACED THE PROVISIONS OF SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES . THIS RULE IS MANDATORY IN NATURE AND ALLOWS OF NO EXCEPTIONS, SAVE FOR THOSE CASES EXPRESSLY STIPULATED IN THE REGULATION . THE FACT THAT SUCH CONVENTIONS ARE MORE ADVANTAGEOUS TO PERSONS COVERED BY REGULATION NO 3 THAN THE REGULATION ITSELF IS NOT SUFFICIENT TO JUSTIFY AN EXCEPTION TO THIS RULE . ARTICLES 6 AND 7 OF REGULATION NO 1408/71 OF THE COUNCIL, BY VIRTUE OF THEIR CONTENT AND PURPOSE, ARE ANALOGOUS IN SCOPE AND EFFECT TO ARTICLES 5 AND 6 OF REGULATION NO 3 .

IN CASE 82/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP AT UTRECHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

C . J . WALDER, PERMANENTLY RESIDENT IN BRUSSELS,

AND

BESTUUR DER SOCIALE VERZEKERINGSBANK, HAVING ITS SEAT IN AMSTERDAM,

ON THE INTERPRETATION OF COUNCIL REGULATION NO 3 " CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS " AND OF COUNCIL REGULATION NO 1408 OF 14 JUNE 1971, " RELATING TO THE APPLICATION OF SOCIAL SECURITY SYSTEMS TO WAGE-EARNERS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ".

1 BY ORDER DATED 14 DECEMBER 1972, FILED IN THE COURT REGISTRY ON 21 DECEMBER 1972, THE CENTRALE RAAD VAN BEROEP ASKED FOR A PRELIMINARY RULING, UNDER ARTICLE 177 OF THE EEC TREATY ON QUESTIONS CONCERNING THE INTERPRETATION OF COUNCIL REGULATION NO 3 ON SOCIAL SECURITY FOR MIGRANT WORKERS, AND ALSO OF REGULATION NO 1408/71 RELATING TO THE APPLICATION OF SOCIAL SECURITY SYSTEMS FOR WAGE-EARNERS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY .

2 BY THE FIRST QUESTION THE COURT IS ASKED TO SAY WHETHER ARTICLES 5 AND 6 OF REGULATION NO 3 MUST BE INTERPRETED AS MEANING THAT THE REGULATION REPLACES SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES WHICH ARE NOT MENTIONED IN ARTICLE 6 ( 1 ) AND ( 2 ) OR IN ANNEX D, EVEN THOUGH PERSONS ENTITLED TO BENEFIT WOULD DERIVE GREATER ADVANTAGE FROM THE APPLICATION OF SUCH CONVENTIONS THAN FROM THE SAID REGULATION .

3 THE SAME PROBLEM IS PUT TO THE COURT BY THE THIRD QUESTION CONCERNING THE INTERPRETATION OF ARTICLES 6 AND 7 AND ANNEX II OF REGULATION NO 1408/71 .

4 ARTICLE 5 OF REGULATION NO 3 PROVIDES :

" SAVE AS OTHERWISE EXPRESSLY STATED HEREIN, THE PROVISIONS OF THIS REGULATION SHALL, IN RESPECT OF PERSONS COVERED BY THE REGULATION, REPLACE THE PROVISIONS OF :

( A ) THE SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN TWO OR MORE MEMBER STATES EXCLUSIVELY AND THE SUPPLEMENTARY AGREEMENTS THERETO; "

5 ARTICLE 6 ( 2 ) OF THAT REGULATION STATES :

" THE PROVISIONS OF THIS REGULATION NOTWITHSTANDING, THE FOLLOWING SHALL CONTINUE TO APPLY :

......

( E ) SUCH OTHER PROVISIONS OF SOCIAL SECURITY CONVENTIONS AS ARE LISTED IN ANNEX D TO THIS REGULATION . "

6 IT IS CLEAR FROM THESE PROVISIONS THAT THE PRINCIPLE THAT THE PROVISIONS OF SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES ARE REPLACED BY REGULATION NO 3 IS MANDATORY IN NATURE AND DOES NOT ALLOW OF EXCEPTIONS SAVE FOR THE CASES EXPRESSLY STIPULATED BY THE REGULATION .

7 THE FACT THAT SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES ARE MORE ADVANTAGEOUS TO PERSONS COVERED BY REGULATION NO 3 THAN THE REGULATION ITSELF IS THEREFORE NOT SUFFICIENT TO JUSTIFY AN EXCEPTION TO THIS PRINCIPLE UNLESS SUCH CONVENTIONS ARE EXPRESSLY PRESERVED BY THE REGULATION .

8 CONSEQUENTLY, THE ANSWER TO THE FIRST QUESTION MUST BE THAT, ACCORDING TO ARTICLES 5 AND 6 OF REGULATION NO 3, THAT REGULATION REPLACES, IN RESPECT OF THE PERSONS COVERED BY IT, SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES WHICH ARE NOT MENTIONED IN ARTICLE 6 OR IN ANNEX D THEREOF, EVEN IF THE APPLICATION OF THE CONVENTIONS IS MORE ADVANTAGEOUS TO PERSONS ENTITLED TO BENEFITS THAN THE SAID REGULATION .

9 THE SAME ANSWER MUST BE GIVEN TO THE THIRD QUESTION, AS ARTICLES 6 AND 7 OF COUNCIL REGULATION NO 1408/71, BY VIRTUE OF THEIR CONTENT AND THEIR PURPOSE, ARE ANALOGOUS IN THEIR SCOPE AND EFFECT TO ARTICLES 5 AND 6 OF REGULATION NO 3 .

10 THE SECOND QUESTION THEREFORE DOES NOT REQUIRE AN ANSWER .

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THEIR PROCEEDINGS ARE, IN 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, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF THAT COURT DATED 14 DECEMBER 1972, HEREBY RULES :

REGULATIONS NOS 3 AND 1408/71 OF THE COUNCIL REPLACE, IN RESPECT OF PERSONS COVERED BY THEM, THE SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES WHICH ARE NOT MENTIONED IN ARTICLES 6 AND 7 OR IN ANNEXES D AND II OF THE SAID REGULATIONS RESPECTIVELY, EVEN IF THE APPLICATION OF THE CONVENTIONS IS MORE ADVANTAGEOUS TO PERSONS ENTITLED TO BENEFITS THAN THE SAID REGULATIONS .