61965J0033

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1 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - SOCIAL INSURANCE - SICKNESS AND MATERNITY - BENEFITS IN KIND WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3 - CONCEPT

1 . CF . PARAGRAPH 1, SUMMARY, CASE 24/64 ( 1964 ) ECR 647 .

UNDER THE TERMS OF ARTICLE 177, THE COURT, WHEN GIVING A PRELIMINARY RULING, ONLY HAS JURISDICTION TO GIVE A RULING ON THE INTERPRETATION OF THE TREATY AND OF MEASURES OF THE INSTITUTIONS OF THE COMMUNITY, BUT CAN NEITHER APPLY THE TREATY AND SUCH MEASURES TO A SPECIFIC CASE, NOR RULE ON THE INTERPRETATION OF THE NATIONAL LAW OF A MEMBER STATE .

*/ 664J0024 /*.

2 . THE EXPRESSION ' BENEFITS IN KIND ' WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3 REFERS TO BENEFITS IN RESPECT OF A SPECIFIC CASE OF SICKNESS OR MATERNITY AND DOES NOT APPLY TO SUPPLEMENTARY PENSION PAYMENTS INTENDED AS A CONTRIBUTION TO THE FINANCING OF THE BENEFICIARY'S SICKNESS INSURANCE .

IN CASE 33/65

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

ADRIANUS DEKKER, ENGINEER, RESIDING AT UTRECHT ( NETHERLANDS ),

PLAINTIFF,

AND

BUNDESVERSICHERUNGSANSTALT FUER ANGESTELLTE, BERLIN,

DEFENDANT,

ON THE INTERPRETATION OF ARTICLE 22 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, P.561 ),

P.904

I - THE JURISDICTION OF THE COURT

THE LANDESSOZIALGERICHT, BERLIN, ASKS THE COURT ' IN ACCORDANCE WITH SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY ', TO RULE WHETHER THE SUPPLEMENTARY CONTRIBUTION FOR SICKNESS INSURANCE PROVIDED FOR BY SECTION 381(4 ) OF THE REICHSVERSICHERUNGSORDNUNG ( GERMAN LAW CONCERNING INSURANCE ) IS INCLUDED IN ' BENEFITS IN KIND ', WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3, ' WHICH A GERMAN PENSIONS INSURANCE INSTITUTION IS OBLIGED TO PAY TO A PENSIONER AFFILIATED TO A SICKNESS INSURANCE INSTITUTION IN ANOTHER MEMBER STATE '.

UNDER THE TERMS OF SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY, THE COURT HAS JURISDICTION TO GIVE PRELIMINARY RULINGS UPON THE INTERPRETATION OF AN ACT OF A COMMUNITY INSTITUTION .

ON THE OTHER HAND, THE INTERPRETATION OF THE NATIONAL LAW OF MEMBER STATES IS OUTSIDE THE FRAMEWORK OF THE POWERS CONFERRED UPON THE COURT BY ARTICLE 177 .

IT FOLLOWS THAT THE COURT IS NOT COMPETENT TO RULE ON THE INTERPRETATIONS OF THE REICHSVERSICHERUNGSORDNUNG, BUT THE REFERENCE INVOLVES A QUESTION OF THE INTERPRETATION OF REGULATION NO 3, WHICH IT IS APPROPRIATE TO EXTRACT FROM THE SPECIFIC DATA SUPPLIED BY THE LANDESSOZIALGERICHT .

P.905

II - THE SUBSTANCE OF THE CASE

REGARDED FROM THIS POINT OF VIEW, THE SUBSTANCE OF THE QUESTION IS WHETHER ' BENEFITS IN KIND ', WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3, INCLUDE SUPPLEMENTARY PENSION BENEFITS WHICH ARE INTENDED AS A CONTRIBUTION TOWARDS THE FINANCING OF THE BENEFICIARY'S SICKNESS INSURANCE .

ARTICLE 2 OF REGULATION NO 3 LISTS THE TYPES OF ' BENEFIT ' TO WHICH THE REGULATION APPLIES, AND RELATES EACH OF THOSE ' BENEFITS ' TO THE OCCURRENCE OF AN ACTUAL RISK (' SICKNESS ', ' MATERNITY ' ETC .).

THIS EMERGES PARTICULARLY CLEARLY FROM THE GERMAN VERSION WHICH MENTIONS, FOR EXAMPLE, ' LEISTUNGEN BEI KRANKHEIT ' ( BENEFITS IN CASE OF SICKNESS ).

CHAPTERS I TO 7 OF HEAD III OF THE REGULATION, WHICH CONTAIN PARTICULAR PROVISIONS CONCERNING EACH OF THE ABOVEMENTIONED RISKS, DEALS WITH EACH IN THE SAME ORDER AS THEY APPEAR IN ARTICLE 2 .

IN THESE CIRCUMSTANCES IT IS EVIDENT THAT, WHERE THE PROVISIONS OF THOSE CHAPTERS USE THE CONCEPT OF ' BENEFIT ', THEY REFER TO BENEFITS TO BE GRANTED ON THE OCCURRENCE OF THE SPECIFIC RISK TO WHICH THE CHAPTER IN QUESTION RELATES .

FURTHER, AS ARTICLE 22 IS FOUND IN CHAPTER 1 OF THE HEAD IN QUESTION UNDER THE HEADING ' SICKNESS, MATERNITY ', IT APPEARS THAT THE CONCEPT OF ' BENEFITS IN KIND ', WHICH APPEARS IN THE SAID ARTICLE, MEANS BENEFITS WHICH ARE TO BE GRANTED ON THE OCCURRENCE OF AN ACTUAL CASE OF SICKNESS OR MATERNITY .

THIS REASONING IS REINFORCED BY BOTH ARTICLE 19(5 ) OF THE REGULATION, WHICH REFERS TO ' THE PROVISION OF PROSTHESES, MAJOR APPLIANCE AND OTHER SUBSTANTIAL BENEFITS IN KIND ', AND ARTICLE 22(6 ), BY WHICH ' THE BENEFICIARY ... SHALL BE ENTITLED TO THE BENEFITS IN KIND DURING TEMPORARY RESIDENCE IN THE TERRITORY OF A MEMBER STATE OTHER THAN HIS COUNTRY OF PERMANENT RESIDENCE '.

THERE IS FURTHER SUPPORT FOR THIS INTERPRETATION IN THE BASIC PRINCIPLE OF ARTICLE 22, ACCORDING TO WHICH ' BENEFITS IN KIND ' SHALL BE ISSUED BY THE INSTITUTION OF THE PLACE IN WHICH THE PERSON CONCERNED PERMANENTLY OR TEMPORARILY RESIDES, REGARDLESS OF WHICH AUTHORITY IS IN THE FINAL ANALYSIS LIABLE TO BEAR THE COSTS OF SUCH BENEFITS .

IN FACT THE SAID PRINCIPLE IS TOTALLY CONSONANT WITH THE AIM OF CHAPTER 1, IN QUESTION HERE, WHICH IS TO ENSURE THAT MEDICAL ASSISTANCE IS AVAILABLE AS RAPIDLY AND EFFECTIVELY AS POSSIBLE TO ANY WORKER WHO NEEDS IT . THE EXPRESSIONS ' IMMEDIATE ' AND ' EXTREME URGENCY ' APPEARING IN ARTICLE 19(1 ) AND ( 5 ) RESPECTIVELY MAKE THIS AIM PARTICULARLY CLEAR .

IT FOLLOWS FROM THESE CONSIDERATIONS THAT BENEFITS SUCH AS THOSE FORMING THE SUBJECT - MATTER OF THE PRESENT REQUEST CANNOT AMOUNT TO ' BENEFITS IN KIND ' WITHIN THE MEANING OF ARTICLE 22 OF REGULATION NO 3 . CONSEQUENTLY THE QUESTION PUT BY THE LANDESSOZIALGERICHT, BERLIN, MUST BE ANSWERED IN THE NEGATIVE .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

AS THE 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 LANDESSOZIALGERICHT, BERLIN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE LANDESSOZIALGERICHT, BERLIN, BY AN ORDER OF THAT COURT OF 28 APRIL 1965,

HEREBY RULES :

1 . SUPPLEMENTARY PENSION PAYMENTS WHICH ARE INTENDED AS A CONTRIBUTION TO THE FINANCING OF THE BENEFICIARY'S SICKNESS INSURANCE DO NOT FALL WITHIN THE MEANING OF THE EXPRESSION ' BENEFITS IN KIND ' IN ARTICLE 22 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 .);

2 . THE DECISION ON COSTS IS A MATTER FOR THE LANDESSOZIALGERICHT, BERLIN .