61963CJ0100_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 100/63
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ACTING PRESIDENT OF THE CENTRALE RAAD VAN BEROEP ( CENTRAL COURT OF APPEAL ), BEING THE NETHERLANDS COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS, IN PURSUANCE OF AN ORDER OF THAT COURT OF 30 OCTOBER 1963 IN THE ACTION PENDING BEFORE IT BETWEEN
MRS J . KALSBEEK ( NEE J . G . VAN DER VEEN ), RESIDING AT OVERDINKEL, LOSSER ( NETHERLANDS ), APPELLANT,
AND
BESTUUR DER SOCIALE VERZEKERINGSBANK ( MANAGEMENT OF THE SOCIAL INSURANCE BANK ), AMSTERDAM, RESPONDENT,
Subject of the case
AND IN NINE OTHER CASES
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF 16 DECEMBER 1958, PP . 561 ET SEQ .),
Grounds
THE COURT HAS RECEIVED A REQUEST FOR INTERPRETATION UNDER ARTICLE 177 OF THE EEC TREATY, MADE TO IT BY THE CENTRALE RAAD VAN BEROEP ( CENTRAL COURT OF APPEAL ). THIS REQUEST IS IN ESSENCE DIRECTED TO FINDING WHETHER CERTAIN PROVISIONS OF A COMMUNITY REGULATION ARE APPLICABLE TO A GIVEN NETHERLANDS LAW, NAMELY, THE ' ALGEMENE WEDUWEN - EN WEZENWET ' ( AWW ) ( GENERAL WIDOWS' AND ORPHANS' INSURANCE LAW ). BY THE SAID ARTICLE 177 THE COURT, WHEN GIVING A PRELIMINARY RULING, IS ENTITLED ONLY TO PRONOUNCE ON THE INTERPRETATION OF THE TREATY AND OF ACTS OF THE INSTITUTIONS OF THE COMMUNITY, BUT CAN NEITHER APPLY THEM TO A PARTICULAR CASE NOR GIVE JUDGMENT BY MEANS OF THIS ARTICLE ON THE PROPRIETY OF A MEASURE OF A DOMESTIC CHARACTER . IT IS ONLY SUBJECT TO THIS PROVISO THAT THE COURT CAN ACCEPT THE QUESTIONS SUBMITTED TO IT IN THIS CASE .
I - THE FIRST QUESTION
BY THIS QUESTION, THE CENTRAL RAAD VAN BEROEP ASKS THE COURT TO STATE WHETHER ARTICLES 1 ( B ), 2 ( 1 ) ( D ) AND 3 OF REGULATION N . 3 ARE TO BE INTERPRETED ' AS MEANING THAT THE " LEGISLATION " REFERRED TO THEREIN ALSO INCLUDES THE " ALGEMENE WEDUWEN - EN WEZENWET ( AWW ) " ALTHOUGH THAT LAW, ADOPTED AFTER THE ENTRY INTO FORCE OF THE REGULATION, WAS NOT THE SUBJECT OF A NOTIFICATION IN ACCORDANCE WITH ARTICLE 3 ( 2 ) '.
( 1 ) IT FOLLOWS FROM THE INFORMATION SUPPLIED BY THE CENTRALE RAAD VAN BEROEP THAT THE AWW PROVIDES FOR INSURANCE AGAINST PREMATURE DEATH WITH BENEFITS TO SURVIVORS . IT IS THEREFORE NECESSARY TO CONSIDER WHETHER THE NETHERLANDS LEGISLATION HAVING SUCH AN OBJECTIVE COMES WITHIN THE FRAMEWORK OF THE ABOVE MENTIONED PROVISIONS .
UNDER ARTICLE 2 ( 1 ) ( D ) OF REGULATION N . 3, SUCH REGULATION ' SHALL APPLY TO ALL LEGISLATION GOVERNING...SURVIVORS' BENEFITS OTHER THAN THOSE PAID IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES '. ANNEX B, ENTITLED ' LEGISLATION TO WHICH THE REGULATION APPLIES ', REFERS, UNDER SUBPARAGRAPH ( E ) OF THE SECTION RELATING TO THE NETHERLANDS, TO : ' INSURANCE AGAINST PREMATURE DEATH, INCLUDING INCREASES '. THE REGULATION MUST THEREFORE APPLY TO ALL NETHERLANDS LEGISLATION PROVIDING FOR INSURANCE AGAINST PREMATURE DEATH WITH BENEFITS TO SURVIVORS .
( 2 ) THE APPLICATION OF REGULATION N . 3 TO ANY LEGISLATION IS NOT PRECLUDED SIMPLY BECAUSE THE LATTER CAME INTO FORCE AFTER THE SAID REGULATION AND WAS NOT NOTIFIED UNDER ARTICLE 3 ( 2 ) OF THE REGULATION . IN FACT, ARTICLE 1 ( B ) OF THE REGULATION PROVIDES THAT WHEN THE REGULATION USES THE TERM ' LEGISLATION ' IT REFERS TO THE LAWS, REGULATIONS ETC . ' PRESENT AND FUTURE ' OF EACH MEMBER STATE . THIS PROVISION WOULD BE DEPRIVED OF ITS MEANING IF IT WERE PERMISSIBLE FOR ANY MEMBER STATE, BY REFRAINING FROM MAKING THE ABOVEMENTIONED NOTIFICATION, TO DECIDE FOR ITSELF THE EXTENT TO WHICH REGULATION N . 3 SHOULD APPLY . MOREOVER, UNDER ARTICLE 3 ( 2 ) OF THE REGULATION, THE OBLIGATION TO PROVIDE SUCH NOTIFICATION ONLY ARISES IN CASES IN WHICH THE ADOPTION OF NEW LEGISLATION RENDERS AN ' AMENDMENT ' TO ANNEX B NECESSARY . SUCH IS NOT THE CASE WHEN THE NEW LEGISLATION COMES UNDER ONE OF THE HEADINGS USED IN THE SAID ANNEX .
IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE REPLY TO THE FIRST QUESTION ASKED BY THE CENTRALE RAAD VAN BEROEP IS IN THE AFFIRMATIVE .
II - THE SECOND QUESTION
THE SECOND QUESTION OF THE CENTRALE RAAD VAN BEROEP IS WHETHER ' ARTICLE 28 ( 1 ) ( B ) OF THE REGULATION IS...APPLICABLE TO DETERMINE THE AMOUNT OF THE WIDOW'S PENSION GRANTED UNDER THE AWW ALTHOUGH THERE IS NO ' ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT ' UNDER ARTICLE 27 ( 1 ) OF THE REGULATION, AND ALTHOUGH UNDER THE SYSTEM PROVIDED FOR BY THE AWW THE AMOUNT OF THE PENSION DOES NOT DEPEND ON THE DURATION OF THE INSURANCE '.
( 1 ) IT FOLLOWS FROM THE WORDING OF ARTICLE 28 ( 1 ) THAT THE CONDITIONS FOR THE APPLICATION OF THIS ARTICLE ARE SUBJECT TO THOSE OF ARTICLE 27 .
THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY WHICH ARE AIMED AT SECURING FREEDOM OF MOVEMENT FOR WORKERS . UNDER ARTICLE 51 THESE REGULATIONS ' SECURE ' FOR MIGRANT WORKERS ' AGGREGATION, 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 '.
THE AIM OF THIS PROVISION IS TO ALLOW THE MIGRANT WORKER TO ACQUIRE THE RIGHT TO BENEFIT BY THE AGGREGATION OF THE PERIODS OF WORK COMPLETED BY HIM IN VARIOUS MEMBER STATES . IT FOLLOWS FROM THIS PRINCIPLE THAT BENEFITS ARE TO BE CALCULATED ACCORDING TO THE PROPORTION OF ALL THE PERIODS OF WORK . ARTICLES 27 AND 28 OF REGULATION N . 3 ARE IN LINE WITH THIS INTENTION . THEY THUS SUPPLEMENT ONE ANOTHER, ARE BASED ON THE SAME PRINCIPLE AND MUST THEREFORE BE APPLIED SIMULTANEOUSLY .
IF ARTICLE 28 WERE TO BE APPLIED SEPARATELY FROM ARTICLE 27, THE RIGHTS OF MIGRANT WORKERS MIGHT IN SOME CASES BE REDUCED . SUCH WORKERS MIGHT FIND THAT THE CALCULATIONS MADE UNDER ARTICLE 28 RESULTED IN SMALLER BENEFITS FOR THEM THAN THE TOTAL OF THE BENEFITS TO WHICH THEY WOULD HAVE BEEN ENTITLED BY VIRTUE OF THE LEGISLATION OF EACH OF THE MEMBER STATES IF THE SAID PROVISIONS HAD NOT BEEN APPLIED .
THE AIM OF ARTICLES 48 TO 51 OF THE TREATY WOULD NOT BE ATTAINED BUT DISREGARDED IF THE WORKER WERE OBLIGED, IN ORDER TO AVAIL HIMSELF OF THE FREEDOM OF MOVEMENT WHICH IS GUARANTEED TO HIM, TO FIND HIMSELF SUBJECTED TO THE LOSS OF RIGHTS ALREADY ACQUIRED IN ONE OF THE MEMBER STATES WITHOUT HAVING THEM REPLACED BY AT LEAST EQUIVALENT BENEFITS . ALTHOUGH, WITHIN THE FRAMEWORK OF ARTICLE 100, THE STATES ARE IN A POSITION, BY APPROXIMATING THEIR LAWS, TO BRING ABOUT FAIRLY RADICAL CHANGES IN THEM, SUBJECT TO THE SAFEGUARDS FOUND BOTH IN THE TREATY AND IN NATIONAL LAW, ARTICLE 51 ON THE OTHER HAND CANNOT ALLOW THE REGULATIONS TO FALL SHORT OF THE OBJECTIVES WHICH IT SETS, WHICH ARE INTENDED TO FAVOUR FREEDOM OF MOVEMENT FOR WORKERS AND WHICH WOULD BE INCOMPATIBLE WITH ANY REDUCTION IN THEIR RIGHTS . IT FOLLOWS FROM THESE FACTORS THEREFORE THAT ARTICLE 28 ( 1 ) ( B ) IS APPLICABLE UNDER ARTICLE 51 OF THE TREATY ONLY IN CASES PROVIDED FOR BY ARTICLE 27, THAT IS TO SAY, WHERE IT IS A QUESTION OF THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT .
( 2 ) THE CENTRALE RAAD VAN BEROEP HAS NEXT RAISED THE QUESTION WHETHER ARTICLE 28 IS APPLICABLE TO LEGISLATION WHICH DOES NOT MAKE THE AMOUNT OF THE PENSION DEPENDENT ON THE DURATION OF THE INSURANCE .
SINCE THE JUDGMENT OF THE CENTRALE RAAD VAN BEROEP, REGULATION N . 130/63/EEC OF THE COUNCIL ' AMENDING CERTAIN ANNEXES TO REGULATION N . 3 AND REGULATION N . 4 ' ( OJ OF 28 DECEMBER 1963, PP . 2996 ET SEQ .) HAS BEEN ADOPTED . THE PURPOSE OF THIS REGULATION IS TO MAKE GOOD THE DEFICIENCIES IN REGULATION N . 3 . ARTICLE 7 AMENDS ANNEX G TO THAT REGULATION RELATING TO NETHERLANDS LEGISLATION . IT PROVIDES THAT FOR THE APPLICATION OF ARTICLES 27 AND 28 OF REGULATION N . 3 THE INSTITUTIONS ' SHALL TAKE INTO ACCOUNT ' THE NEW RULES LAID DOWN FOR THE FUTURE .
REGULATION N . 130 IS TO BE APPLIED AS FROM ITS PUBLICATION . HOWEVER, ARTICLE 7 ( 2 ) PROVIDES THAT THE AMENDMENTS MADE BY THE SAID ARTICLE TO ANNEX G TO REGULATION N . 3 COME INTO EFFECT AS FROM 1 JANUARY 1959 . NEVERTHELESS THIS RETROACTIVE EFFECT CANNOT PREJUDICE IN ANY WAY THE PERSONS WHOSE ENTITLEMENT TO BENEFIT WAS ACQUIRED BEFORE THE PUBLICATION OF REGULATION N . 130 .
IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT ARTICLE 28 ( 1 ) ( B ) ALSO APPLIES TO LEGISLATION WHICH DOES NOT MAKE THE AMOUNT OF THE BENEFIT DEPENDENT ON THE DURATION OF THE INSURANCE .
( 3 ) HAVING REGARD TO ALL THE ABOVE, ARTICLE 28 ( 1 ) ( B ) IS APPLICABLE ONLY IN SO FAR AS ITS APPLICATION SECURES FOR THE PERSONS CONCERNED BENEFITS WHICH AMOUNT TO AT LEAST AS MUCH AS THOSE WHICH THEY WOULD RECEIVE BY VIRTUE OF THE NATIONAL LEGISLATION APPLICABLE TO THEM, CONSIDERED INDEPENDENTLY OF REGULATION N . 3 .
III - THE THIRD QUESTION
THE THIRD QUESTION, WHICH IS RAISED IF THE ANSWER TO THE SECOND QUESTION IS IN THE AFFIRMATIVE, IS WHETHER, ' WHERE A WIDOW'S PENSION IS GRANTED UNDER THE AWW, THE INSURANCE PERIODS COMPLETED UNDER THE NETHERLANDS LAW ON INVALIDITY CAN...BE CONSIDERED AS INSURANCE PERIODS FOR THE APPLICATION OF ARTICLE 28 ( 1 ) ( B ) OF REGULATION N . 3 '.
UNDER THE CLEAR TERMS OF SUBPARAGRAPH ( B ) OF THE ABOVE MENTIONED ARTICLE 7 OF REGULATION N . 130, THE PERIODS IN QUESTION NOT ONLY CAN BUT MUST BE ASSIMILATED TO THE PERIODS COMPLETED UNDER THE NETHERLANDS LEGISLATION ON GENERAL INSURANCE IN FAVOUR OF WIDOWS AND ORPHANS . HOWEVER, THIS INTERPRETATION IS SUBJECT TO THE CONDITION THAT SUCH ASSIMILATION MUST NOT PREJUDICE IN ANY WAY THE PERSONS WHOSE RIGHT TO BENEFIT HAS BEEN ACQUIRED BEFORE THE PUBLICATION OF REGULATION N . 130 .
IV - THE FOURTH QUESTION
BY THIS QUESTION, THE CENTRALE RAAD VAN BEROEP REQUESTS THE COURT TO STATE WHETHER ARTICLE 28 ( 1 ) ( G ) OF REGULATION N . 3, IN USING THE WORDS ' BENEFITS ALREADY PAID ', RELATES SOLELY TO BENEFITS ALREADY PAID ' ON 1 JANUARY 1959, THE DATE OF THE ENTRY INTO FORCE OF THE REGULATION '.
THE PROVISION DEALS WITH ' CASES COVERED BY SUBPARAGRAPHS ( E ) AND ( F ) OF THIS PARAGRAPH '. THE SAID SUBPARAGRAPHS ( E ) AND ( F ) INDICATE THE METHOD TO BE FOLLOWED IN ORDER TO DETERMINE THE AMOUNT OF THE BENEFIT WHERE THE PERSON CONCERNED DOES NOT ' AT A GIVEN DATE ' SATISFY THE CONDITIONS REQUIRED BY ALL THE LEGISLATIVE SYSTEMS APPLICABLE TO HIM . SUBPARAGRAPH ( G ) PROVIDES THAT ' AS AND WHEN ' THE SAID CONDITIONS ARE SUBSEQUENTLY SATISFIED, THE ' BENEFITS ALREADY PAID ' SHALL BE REVIEWED . IT FOLLOWS FROM THESE PROVISIONS LOOKED AT AS A WHOLE THAT ' BENEFITS ALREADY PAID ' MUST BE UNDERSTOOD AS MEANING PAYMENTS MADE IN PURSUANCE OF SUBPARAGRAPHS ( E ) AND ( F ). SUCH PAYMENTS CAN CLEARLY NOT COME ABOUT UNTIL AFTER THE ENTRY INTO FORCE OF REGULATION N . 3, INCLUDING PARTICULARLY SUBPARAGRAPHS ( E ) AND ( F ) AFOREMENTIONED WHICH ARE PERMANENTLY APPLICABLE, AS IS SHOWN MOREOVER BY THE PHRASE ' AT A GIVEN DATE ' QUOTED ABOVE . THEREFORE THE PROVISIONS OF ARTICLE 28 ARE ALSO OF PERMANENT APPLICATION .
Decision on costs
THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EEC WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED, A STEP IN THE ACTIONS PENDING BEFORE THE CENTRALE RAAD VAN BEROEP, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE OBSERVATIONS OF THE COMMISSION OF THE EEC;
UPON HEARING THE OPINION OF THE ADVOCATE - GENERAL;
HAVING REGARD TO ARTICLES 48 TO 51 AND 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF THE EUROPEAN COMMUNITIES OF 16 DECEMBER 1958, PP . 561 ET SEQ .) AND REGULATION N . 130 OF THE COUNCIL
( OJ OF 28 DECEMBER 1963_PP . 2996 ET SEQ .);
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY DECISION OF 30 OCTOBER 1963,
HEREBY RULES :
1 . THE EXPRESSION ' LEGISLATION ' USED IN ARTICLES 1 ( B ), 2 ( 1 ) ( D ) AND 3 OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF THE EUROPEAN COMMUNITIES OF 16 DECEMBER 1958 PP . 561 ET SEQ .) ALSO INCLUDES NATIONAL LEGISLATION MAKING PROVISION FOR INSURANCE AGAINST PREMATURE DEATH WITH BENEFITS TO SURVIVORS, EVEN IF SUCH LEGISLATION CAME INTO FORCE AFTER REGULATION N . 3, AND EVEN IF NOTICE THEREOF WAS NOT GIVEN .
2 . ( A ) ARTICLE 28 OF THE SAID REGULATION ONLY APPLIES IN MATTERS RELATING TO THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT, AS REFERRED TO IN ARTICLE 27;
( B ) THESE PROVISIONS APPLY TO LEGISLATION WHICH DOES NOT MAKE THE AMOUNT OF THE BENEFIT DEPENDENT UPON THE LENGTH OF THE INSURANCE PERIOD;
( C ) THESE PROVISIONS APPLY ONLY IN SO FAR AS THE REGULATIONS MAKE IT POSSIBLE TO SECURE FOR THE PERSONS CONCERNED BENEFITS AT LEAST EQUAL IN AMOUNT TO THOSE WHICH THEY WOULD RECEIVE IN EACH COUNTRY BY VIRTUE OF THE NATIONAL LEGISLATION APPLICABLE TO THEM, CONSIDERED INDEPENDENTLY OF REGULATIONS N.S 3 AND 130 OF THE COUNCIL OF THE EEC .
3 . WHERE, WITHIN THE FRAMEWORK OF ARTICLES 27 AND 28 OF REGULATION N . 3, A WIDOW'S PENSION IS GRANTED BY VIRTUE OF THE NETHERLANDS LEGISLATION CONCERNING GENERAL INSURANCE IN FAVOUR OF WIDOWS AND ORPHANS, THE INSURANCE PERIODS COMPLETED BY VIRTUE OF THE NETHERLANDS LAW ON INVALIDITY MUST BE ASSIMILATED TO THE PERIODS COMPLETED UNDER THE SAID LEGISLATION .
4 . THE EXPRESSION ' BENEFITS ALREADY PAID ' APPEARING IN ARTICLE 28 ( 1 ) ( G ) OF REGULATION N . 3 INCLUDES ALL BENEFITS PAID IN ACCORDANCE WITH SUBPARAGRAPHS ( E ) AND ( F ) OF THE SAID ARTICLE 28 ( 1 ), WHATEVER THE DATE OF PAYMENT .
5 . THE DECISION AS TO THE COSTS OF THESE PROCEEDINGS IS A MATTER FOR THE CENTRALE RAAD VAN BEROEP .