61977CJ0041_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 41/77,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HIGH COURT OF JUSTICE, QUEEN ' S BENCH DIVISION ( DIVISIONAL COURT ), FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT CONCERNING JOHN PATRICK KELLY ' S APPLICATION FOR AN INVALIDITY PENSION
THE QUEEN
V A NATIONAL INSURANCE COMMISSIONER EX PARTE CHRISTINE MARGARET WARRY
Subject of the case
ON THE INTERPRETATION OF ARTICLES 40, 45 AND 46 OF REGULATION ( EEC ) NO 1408/71,
Grounds
1 BY ORDER OF 15 FEBRUARY 1977, RECEIVED AT THE COURT REGISTRY ON 12 APRIL 1977, THE HIGH COURT OF JUSTICE, QUEEN ' S BENCH DIVISION ( DIVISIONAL COURT ) REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 51 OF THE TREATY AND OF ARTICLES 40, 45 AND 46 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 ( OJ, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS AROSE WITHIN THE CONTEXT OF AN ACTION CONCERNING THE RIGHT TO THE PAYMENT OF AN INVALIDITY PENSION UNDER BRITISH LEGISLATION OF A UNITED KINGDOM NATIONAL WHO COMPLETED INSURANCE PERIODS IN GREAT BRITAIN FOR THE GREATER PART OF THE PERIOD FROM 1933 TO JULY 1971 AND IN THE FEDERAL REPUBLIC OF GERMANY FROM JULY 1971 TO JUNE 1973, WHEN HE FELL ILL .
3 THE FILE SHOWS THAT HE CONTINUED TO LIVE IN THE FEDERAL REPUBLIC OF GERMANY AND RECEIVED SICKNESS BENEFIT THERE FROM AUGUST 1973 TO JUNE 1974, SINCE WHEN HE HAS RECEIVED A LIMITED INVALIDITY PENSION CALCULATED BY REFERENCE TO HIS PERIOD OF INSURANCE IN GERMANY .
4 THE CLAIMANT ALSO APPLIED FOR AN INVALIDITY PENSION IN GREAT BRITAIN BUT HIS APPLICATION WAS REFUSED BY THE INSURANCE OFFICER, WHO IS COMPETENT IN THE FIRST INSTANCE, ON THE GROUND THAT HE HAD NOT BEEN AND COULD NOT BE TREATED AS HAVING BEEN ENTITLED TO SICKNESS BENEFIT FOR THE PERIOD OF 168 DAYS LAID DOWN BY BRITISH LEGISLATION AS A PRECONDITION FOR ENTITLEMENT TO AN INVALIDITY PENSION .
5 THE LOCAL TRIBUNAL DISMISSED THE CLAIMANT ' S APPEAL TO IT FROM THE DECISION OF THE INSURANCE OFFICER .
6 HOWEVER, THE NATIONAL INSURANCE COMMISSIONER ALLOWED THE CLAIMANT ' S APPEAL AGAINST THE DECISION OF THE LOCAL TRIBUNAL ON THE GROUND THAT ' INVALIDITY BENEFIT IS, WHEN NOT REDUCED TO NOTHING BY THE PROVISIONS FOR THE ELIMINATION OF OVERLAPPING BENEFITS HEREINAFTER REFERRED TO, PAYABLE TO THE CLAIMANT IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 1408/71 . '
7 HOWEVER, THE INSURANCE OFFICER APPLIED TO THE DIVISIONAL COURT OF THE QUEEN ' S BENCH DIVISION OF THE HIGH COURT OF JUSTICE FOR AN ORDER OF CERTIORARI TO QUASH THE DECISION OF THE NATIONAL INSURANCE COMMISSIONER .
8 AS IT CONSIDERS THAT A DECISION ON THE FOLLOWING POINTS IS NECESSARY IN ORDER FOR IT TO GIVE JUDGMENT, THE DIVISIONAL COURT ASKS :
' WHERE THE LEGISLATION OF A MEMBER STATE MAKES THE ACQUISITION OF A RIGHT TO INVALIDITY BENEFIT CONDITIONAL UPON THE PERSON CONCERNED HAVING BEEN ENTITLED TO SICKNESS BENEFIT UNDER THAT LEGISLATION FOR A TOTAL OF 168 DAYS IN THE IMMEDIATELY PRECEDING PERIOD THAT CONDITION BEING SUBJECT TO SO FAR AS MATERIAL ( A ) THE COMPLETION OF INSURANCE PERIODS ( B ) THE MAKING OF A CLAIM THEREFOR IN A PRESCRIBED MANNER AND WITHIN A PRESCRIBED TIME -
( I ) DO THE PROVISIONS OF ARTICLE 51 OF THE TREATY OF ROME PRECLUDE THE APPLICATION OF SUCH A CONDITION TO A CASE TO WHICH ARTICLES 40, 45 OR 46 OF REGULATION ( EEC ) NO 1408/71 RELATE?
( II ) DO THE PROVISIONS OF
( A ) ARTICLE 45 OR
( B ) ARTICLE 46
RELATE TO SUCH LEGISLATION?
( III ) DO ALL OR ANY OF THE SAID ARTICLES 40, 45 OR 46 -
( A ) ENABLE SUCH A CONDITION TO BE TREATED AS WHOLLY OR PARTLY SATISFIED ; OR
( B ) REQUIRE SUCH A CONDITION TO BE WHOLLY OR PARTLY DISREGARDED ;
AND IF SO TO WHAT EXTENT?
9 THE QUESTIONS ARE RAISED BY THE DIVISIONAL COURT IN THE CONTEXT OF LEGISLATION UNDER WHICH THE RIGHT TO AN INVALIDITY PENSION IS DEPENDENT UPON ENTITLEMENT TO SICKNESS BENEFIT FOR A PERIOD OF 168 DAYS .
10 THE BRITISH LEGISLATION IN FORCE AT THE RELEVANT TIME PROVIDED THAT IN ORDER TO GAIN ENTITLEMENT TO SICKNESS BENEFIT A CLAIMANT HAD TO HAVE PAID CONTRIBUTIONS OVER A CERTAIN PERIOD AND TO HAVE MADE A CLAIM FOR BENEFIT IN THE PRESCRIBED MANNER AND WITHIN A CERTAIN PERIOD FOLLOWING THE MATERIALIZATION OF THE RISK .
11 IT IS ESTABLISHED THAT THE CLAIMANT HAD NOT PAID CONTRIBUTIONS IN GREAT BRITAIN DURING THE PRESCRIBED PERIOD AND HAD NOT SUBMITTED A CLAIM WITHIN THE PERIOD LAID DOWN .
12 IT APPEARS THAT, UNDER THE PROVISIONS OF THE LEGISLATION IN QUESTION, EVEN IF, HAVING PAID CONTRIBUTIONS AND SUBMITTED A CLAIM, THE CLAIMANT WAS ENTITLED TO BENEFIT, PAYMENT WOULD BE SUSPENDED DURING THE WHOLE PERIOD DURING WHICH HE WAS ABSENT FROM GREAT BRITAIN .
13 SINCE THE QUESTION RAISED MAKES NO REFERENCE TO THIS CONDITION OF RESIDENCE THE COURT MAY ASSUME THAT THE DIVISIONAL COURT CONSIDERS IT SUFFICIENT FOR THE PURPOSES OF THE REQUIREMENTS OF THE BRITISH LEGISLATION ON INVALIDITY PENSIONS THAT THE CLAIMANT BE DEEMED TO BE ENTITLED TO SICKNESS BENEFIT FOR A PERIOD OF 168 DAYS, EVEN THOUGH PAYMENT OF THAT BENEFIT WAS SUSPENDED BY VIRTUE OF THE OPERATION OF A RESIDENCE CLAUSE .
14 ARTICLE 18 OF REGULATION NO 1408/71 PROVIDES THAT ' THE COMPETENT INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION ( ON SICKNESS BENEFITS ) MAKES THE ACQUISITION, RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS CONDITIONAL UPON THE COMPLETION OF INSURANCE PERIODS . . . SHALL, TO THE EXTENT NECESSARY, TAKE ACCOUNT OF INSURANCE PERIODS . . . COMPLETED UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE AS IF THEY WERE PERIODS COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS ' .
15 THEREFORE, FOR THE ACQUISITION OF THE RIGHT TO SICKNESS BENEFIT UNDER BRITISH LEGISLATION, INSURANCE PERIODS COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY MUST BE TAKEN INTO ACCOUNT AS IF THEY WERE PERIODS COMPLETED UNDER BRITISH LEGISLATION .
16 HOWEVER, THE CLAIMANT, WHO AT THE RELEVANT TIME RESIDED IN THE FEDERAL REPUBLIC OF GERMANY, WAS UNABLE TO RECEIVE PAYMENT OF THE BENEFIT, SINCE ARTICLE 10 OF REGULATION NO 1408/71, WHICH WAIVES RESIDENCE CLAUSES, DOES NOT REFER TO SICKNESS BENEFIT .
17 THE SUBMISSION OF A CLAIM FOR SICKNESS BENEFIT BY THE CLAIMANT IN THE PRESCRIBED FORM AND WITHIN THE PERIOD LAID DOWN BY BRITISH LEGISLATION WOULD THEREFORE BE PURPOSELESS .
18 ARTICLE 51 OF THE TREATY REQUIRES THE COUNCIL TO ADOPT SUCH MEASURES AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS, PROVIDING FOR THE AGGREGATION, IN PARTICULAR FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES .
19 ACCORDING TO THE FIFTH AND SIXTH RECITALS OF THE PREAMBLE TO REGULATION NO 1408/71 OF THE COUNCIL, ' THE PROVISIONS FOR COORDINATION OF NATIONAL SOCIAL SECURITY LEGISLATIONS FALL WITHIN THE FRAMEWORK OF FREEDOM OF MOVEMENT FOR WORKERS WHO ARE NATIONALS OF MEMBER STATES AND SHOULD, TO THIS END, CONTRIBUTE TOWARDS THE IMPROVEMENT OF THEIR STANDARD OF LIVING AND CONDITIONS OF EMPLOYMENT, BY GUARANTEEING WITHIN THE COMMUNITY FIRSTLY EQUALITY OF TREATMENT FOR ALL NATIONALS OF MEMBER STATES UNDER THE VARIOUS NATIONAL LEGISLATIONS AND SECONDLY SOCIAL SECURITY BENEFITS FOR WORKERS AND THEIR DEPENDENTS REGARDLESS OF THEIR PLACE OF EMPLOYMENT OR OF RESIDENCE ', THOSE BEING OBJECTIVES WHICH ' MUST BE ATTAINED IN PARTICULAR BY AGGREGATION OF ALL THE PERIODS TAKEN INTO ACCOUNT UNDER THE VARIOUS NATIONAL LEGISLATIONS FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFITS AND OF CALCULATING THE AMOUNT OF BENEFITS AND BY THE PROVISION OF BENEFITS FOR THE VARIOUS CATEGORIES OF PERSONS COVERED BY THE REGULATION REGARDLESS OF THEIR PLACE OF RESIDENCE WITHIN THE COMMUNITY ' .
20 UNDER THE GERMAN LEGISLATION ON INVALIDITY PENSIONS THE AMOUNT OF BENEFIT AWARDED IS NOT INDEPENDENT OF THE LENGTH OF THE INSURANCE PERIODS COMPLETED, THAT IS, IT IS LEGISLATION OF THE TYPE KNOWN AS ' TYPE B ' .
21 ARTICLE 40 OF REGULATION NO 1408/71 PROVIDES THAT 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 ), THAT IS, THAT KNOWN AS ' TYPE A ', SHALL RECEIVE INVALIDITY BENEFITS UNDER THE PROVISIONS OF CHAPTER 3, WHICH APPLY BY ANALOGY .
22 THEREFORE, WHERE A WORKER HAS BEEN SUCCESSIVELY SUBJECT TO THE LEGISLATIONS OF TWO MEMBER STATES, OF WHICH AT LEAST ONE IS OF TYPE B, THE PROVISIONS OF ARTICLE 45 OF THE REGULATION, WHICH FORM PART OF CHAPTER 3, ARE APPLICABLE BY ANALOGY TO INVALIDITY BENEFITS .
23 ARTICLE 45 ( 1 ), AS AMENDED BY THE ACT OF ACCESSION OF THE NEW MEMBER STATES AND BY REGULATION ( EEC ) NO 2864/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OJ, ENGLISH SPECIAL EDITION 31 . 12 . 1972 P . 15 ), IS WORDED AS FOLLOWS : ' AN INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION, RETENTION OR RECOVERY OF THE RIGHTS TO BENEFITS CONDITIONAL UPON THE COMPLETION OF INSURANCE PERIODS OR PERIODS OF RESIDENCE SHALL TAKE INTO ACCOUNT, TO THE EXTENT NECESSARY, INSURANCE PERIODS OR PERIODS OF RESIDENCE COMPLETED UNDER THE LEGISLATION OF ANY MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS ' .
24 BY VIRTUE OF THAT PROVISION INSURANCE PERIODS COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY ARE TAKEN INTO ACCOUNT, TO THE EXTENT NECESSARY, FOR THE ACQUISITION OF THE RIGHT TO INVALIDITY BENEFITS, AS THOUGH THEY HAD BEEN COMPLETED UNDER BRITISH LEGISLATION .
25 IT FOLLOWS THAT, IRRESPECTIVE OF THE PROVISIONS OF ARTICLE 18 OF THE REGULATION, THOSE INSURANCE PERIODS MUST BE TAKEN INTO ACCOUNT FOR THE ACQUISITION OF THE RIGHT TO SICKNESS BENEFIT, IN SO FAR AS THE NATIONAL LEGISLATION IN QUESTION MAKES THE RIGHT TO INVALIDITY BENEFITS CONDITIONAL UPON ENTITLEMENT TO SICKNESS BENEFIT .
26 NEVERTHELESS, THE BRITISH INSTITUTION ARGUED THAT, NOT BEING RESIDENT IN GREAT BRITAIN DURING THE PERIOD IN QUESTION, THE CLAIMANT HAD NOT SUBMITTED A CLAIM FOR SICKNESS BENEFIT IN THE REQUIRED MANNER AND WITHIN THE SPECIFIED PERIOD, WHICH BENEFIT, EVEN IF HE WAS ENTITLED TO IT, COULD NOT BE PAID TO HIM AS HE WAS RESIDING OUTSIDE GREAT BRITAIN .
27 ARTICLE 36 OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 ( OJ, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 PROVIDES THAT IN ORDER TO RECEIVE BENEFITS UNDER ARTICLES 40 TO 51 OF REGULATION NO 1408/71, EXCEPT IN THE CASES REFERRED TO IN ARTICLE 35 OF REGULATION NO 574/72, ' THE PERSON CONCERNED SHALL SUBMIT A CLAIM TO THE INSTITUTION OF THE PLACE OF RESIDENCE IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY THE LEGISLATION ADMINISTERED BY THAT INSTITUTION '
. . . ' A CLAIM FOR BENEFITS SENT TO THE INSTITUTION OF ONE MEMBER STATE SHALL AUTOMATICALLY INVOLVE THE CONCURRENT AWARD OF BENEFITS UNDER THE LEGISLATION OF ALL THE MEMBER STATES IN QUESTION WHOSE CONDITIONS THE CLAIMANT SATISFIES . . . ' .
28 THAT PROVISION WAS LAID DOWN WITH THE AIM OF SIMPLIFYING ADMINISTRATION IN ORDER TO EXEMPT MIGRANT WORKERS, WHO HAVE RIGHTS TO ASSERT IN DIFFERENT MEMBER STATES, FROM THE REQUIREMENT TO LODGE WITH THE INSTITUTIONS IN EACH OF THOSE STATES AN APPLICATION FOR THE GRANT OF THE BENEFITS WHICH THEY MAY CLAIM .
29 EVEN IF IT IS TRUE THAT THAT PROVISION DOES NOT APPLY TO SICKNESS BENEFIT, IT WOULD BE CONTRARY TO THE AIM OF ARTICLE 51 OF THE TREATY AND TO THE GENERAL SCHEME OF REGULATION NO 1408/71 THAT A WORKER WHO HAS SUBMITTED A CLAIM FOR INVALIDITY BENEFIT IN ACCORDANCE WITH THAT PROVISION SHOULD HAVE HIS CLAIM REFUSED ON THE GROUND THAT, AT AN EARLIER STAGE, HE HAD NOT SUBMITTED A CLAIM FOR SICKNESS BENEFIT TO THE COMPETENT INSTITUTION OF ANOTHER MEMBER STATE .
30 THEREFORE, ARTICLE 45 OF REGULATION NO 1408/71 MUST BE UNDERSTOOD TO MEAN THAT WHERE THE LEGISLATION OF A MEMBER STATE MAKES THE ACQUISITION OF A RIGHT TO INVALIDITY BENEFIT CONDITIONAL UPON THE PERSON CONCERNED HAVING BEEN ENTITLED TO SICKNESS BENEFIT UNDER THAT LEGISLATION FOR A GIVEN PERIOD IN THE IMMEDIATELY PRECEDING PERIOD - THAT CONDITION BEING SUBJECT TO SO FAR AS MATERIAL ( A ) THE COMPLETION OF INSURANCE PERIODS ( B ) THE MAKING OF A CLAIM THEREFOR IN A PRESCRIBED MANNER AND WITHIN A PRESCRIBED TIME -
( I ) THE COMPETENT INSTITUTION OF THE SAID MEMBER STATE SHALL TAKE INTO ACCOUNT INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANY MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS ;
( II ) THE CONDITION THAT A CLAIM MUST BE MADE IN A PRESCRIBED MANNER AND WITHIN A PRESCRIBED TIME SHALL BE REGARDED AS SATISFIED IN SO FAR AS SUCH A CLAIM HAS BEEN DULY MADE IN ACCORDANCE WITH THE LEGISLATION OF THE STATE OF RESIDENCE .
Decision on costs
COSTS
31 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
32 AS THESE 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 .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HIGH COURT OF JUSTICE, QUEEN ' S BENCH DIVISION ( DIVISIONAL COURT ), BY ORDER OF 15 FEBRUARY 1977, HEREBY RULES :
ARTICLE 45 OF REGULATION NO 1408/71 MUST BE UNDERSTOOD TO MEAN THAT WHERE THE LEGISLATION OF A MEMBER STATE MAKES THE ACQUISITION OF A RIGHT TO INVALIDITY BENEFIT CONDITIONAL UPON THE PERSON CONCERNED HAVING BEEN ENTITLED TO SICKNESS BENEFIT UNDER THAT LEGISLATION FOR A GIVEN PERIOD IN THE IMMEDIATELY PRECEDING PERIOD - THAT CONDITION BEING SUBJECT TO SO FAR AS MATERIAL ( A ) THE COMPLETION OF INSURANCE PERIODS ( B ) THE MAKING OF A CLAIM THEREFOR IN A PRESCRIBED MANNER AND WITHIN A PRESCRIBED TIME -
( I ) THE COMPETENT INSTITUTION OF THE SAID MEMBER STATE SHALL TAKE INTO ACCOUNT INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF ANY MEMBER STATE AS THOUGH THEY HAD BEEN COMPLETED UNDER THE LEGISLATION WHICH IT ADMINISTERS ;
( II ) THE CONDITION THAT A CLAIM MUST BE MADE IN A PRESCRIBED MANNER AND WITHIN A PRESCRIBED TIME SHALL BE REGARDED AS SATISFIED IN SO FAR AS SUCH A CLAIM HAS BEEN DULY MADE IN ACCORDANCE WITH THE LEGISLATION OF THE STATE OF RESIDENCE .