61976CJ0017_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 17/76
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE NATIONAL INSURANCE COMMISSIONER FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE HIM BETWEEN
M . L . E . BRACK, WIDOW OF R . J . BRACK
AND
INSURANCE OFFICER
Subject of the case
ON THE INTERPRETATION OF ARTICLE 1 ( A ) ( I ), ( II ) AND ( III ) AND POINT I ( I ) OF ANNEX V TO REGULATION NO 1408/71 OF THE COUNICL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ L 149, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),
Grounds
1 BY A DECISION OF 12 FEBRUARY 1976 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 16 FEBRUARY 1976 THE NATIONAL INSURANCE COMMISSIONER SUBMITTED, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, FOUR QUESTIONS CONCERNING THE INTERPRETATION, ON THE ONE HAND, OF PARAGRAPH 1 OF POINT I ( UNITED KINGDOM ) OF ANNEX V TO 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, AS AMENDED BY THE ACT OF ACCESSION AND, ON THE OTHER HAND OF ARTICLE 1 ( A ) ( I ) ( II ) AND ( III ) OF THIS REGULATION .
2 THOSE QUESTIONS WERE RAISED WITHIN THE FRAMEWORK OF A DISPUTE BETWEEN A BRITISH NATIONAL BORN IN 1906 - THE CLAIMANT IN THE MAIN PROCEEDINGS - WHO HAD ALWAYS RESIDED IN GREAT BRITAIN AND WHO HAD PAID CONTRIBUTIONS UNDER THE BRITISH NATIONAL INSURANCE SCHEME SINCE 1948, INITIALLY AS AN EMPLOYED PERSON AND SUBSEQUENTLY AS A SELF-EMPLOYED PERSON, AND THE COMPETENT BRITISH SOCIAL SECURITY INSTITUTION . THE DISPUTE AROSE BECAUSE THE CLAIMANT FELL ILL DURING A STAY IN FRANCE, WHERE HE HAD GONE FOR REASONS OF HEALTH, AND HE HAD THEREFORE TO RECEIVE IMMEDIATE MEDICAL TREATMENT .
3 BY VIRTUE OF A PROVISION OF NATIONAL LAW WHICH LAYS DOWN THE PRINCIPLE THAT ' A PERSON SHALL BE DISQUALIFIED FOR RECEIVING ANY BENEFIT . . . FOR ANY PERIOD DURING WHICH THAT PERSON . . . IS ABSENT FROM GREAT BRITAIN . . . '
THE SAID INSTITUTION REFUSED HIM - AND NOW REFUSES HIS WIDOW WHO IS CONTINUING WITH THE PROCEEDINGS - SICKNESS BENEFITS IN CASH FOR THE PERIOD DURING WHICH HE STAYED IN FRANCE .
4 UNDER ARTICLE 22 ( 1 ) OF REGULATION NO 1408/71 RELATING INTER ALIA TO SICKNESS BENEFITS, ' A WORKER '
- A WORD DEFINED IN ARTICLE 1 ( A ) OF THE REGULATION - ' WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS . . . AND : ( A ) WHOSE CONDITION NECESSITATES IMMEDIATE BENEFITS DURING A STAY IN THE TERRITORY OF ANOTHER MEMBER STATE . . . SHALL BE ENTITLED : . . . ( II ) TO CASH BENEFITS PROVIDED BY THE COMPETENT INSTITUTION IN ACCORDANCE WITH THE LEGISLATION WHICH IT ADMINISTERS ' .
5 SINCE THAT PROVISION PRECLUDES THE APPLICATION TO A WORKER OF SUCH A PROVISION OF NATIONAL LAW THE ESSENTIAL PURPOSE OF THE QUESTIONS OF THE NATIONAL INSURANCE COMMISSIONER IS TO ASCERTAIN WHETHER PERSONS IN THE POSITION OF THE CLAIMANT IN THE MAIN PROCEEDINGS HAVE THE STATUS OF A ' WORKER '
WITHIN THE MEANING OF ARTICLE 1 ( A ) OF REGULATION NO 1408/71 .
THE FIRST QUESTION
6 IN THE FIRST QUESTION THE COURT IS ASKED WHETHER PARAGRAPH 1 OF POINT I OF ANNEX V TO REGULATION NO 1408/71 ( A POINT RELATING EXCLUSIVELY TO THE UNITED KINGDOM ) RESTRICTS OR IN FACT SUPPLEMENTS THE DEFINITION OF THE TERM ' WORKER '
APPEARING IN ARTICLE 1 ( A ) OF THE REGULATION OR ANY LIMB OF THAT DEFINITION .
7 UNDER PARAGRAPH 1 OF POINT I ( UNITED KINGDOM ) OF ANNEX V ' ALL PERSONS REQUIRED TO PAY CONTRIBUTIONS AS EMPLOYED WORKERS '
SHALL BE REGARDED AS WORKERS FOR THE PURPOSES OF ARTICLE 1 ( A ) ( II ) OF THE REGULATION .
8 SINCE THE SAID PARAGRAPH 1 THUS REFERS EXCLUSIVELY TO SUBPARAGRAPH ( II ) OF ARTICLE 1 ( A ) IT IS CLEAR FROM THE OUTSET THAT IT CANNOT RELATE TO THE SCOPE OF SUBPARAGRAPHS ( I ) AND ( III ).
9 FOR ITS PART SUBPARAGRAPH ( II ), AS DISTINCT FROM SUBPARAGRAPH ( I ), DOES NOT EXPRESSLY REFER TO ' RESTRICTIONS '
WHICH ANNEX V MAY APPLY TO THE DEFINITION OF THE TERM ' WORKER ' .
10 THE EXPLANATION FOR THE PROVISION IN QUESTION IN ANNEX V IS THAT THE BRITISH SYSTEM, WHICH DISTINGUISHES BETWEEN CONTRIBUTIONS FROM EMPLOYED PERSONS, SELF-EMPLOYED PERSONS AND NON-EMPLOYED PERSONS, ALSO REQUIRES CERTAIN CATEGORIES OF PERSONS WHO DO NOT HAVE THIS STATUS UNDER THE LAW OF EMPLOYMENT TO ' PAY CONTRIBUTIONS AS EMPLOYED PERSONS ' .
11 THE SAID PROVISION IS THUS INTENDED TO ENSURE THAT ARTICLE 1 ( A ) ( II ) IS APPLIED BROADLY IN THAT IT MAKES IT CLEAR THAT ANY PERSON WHO IS REQUIRED TO PAY CONTRIBUTIONS AS AN EMPLOYED PERSON CAN BE IDENTIFIED AS SUCH BY VIRTUE OF THE MANNER IN WHICH THE BRITISH SYSTEM IS ADMINISTERED OR FINANCED IN THE SENSE OF THE FIRST INDENT OF THIS SUBPARAGRAPH .
12 ACCORDINGLY THE ANSWER TO THE NATIONAL TRIBUNAL MUST BE THAT, FAR FROM RESTRICTING THE DEFINITION OF ' WORKER '
AS IT EMERGES FROM ARTICLE 1 ( A ), THE PROVISION IN PARAGRAPH 1 OF POINT I ( UNITED KINGDOM ) OF ANNEX V TO REGULATION NO 1408/71 IS SOLELY CONCERNED TO CLARIFY THE SCOPE OF SUBPARAGRAPH ( II ) OF THIS PARAGRAPH VIS-A-VIS BRITISH LEGISLATION .
THE THIRD QUESTION
13 IN THE THIRD QUESTION THE COURT IS ASKED WHETHER A PERSON IN THE SITUATION OF THE CLAIMANT IN THE MAIN PROCEEDINGS IS A ' WORKER '
WITHIN THE MEANING OF ARTICLE 1 ( A ) OF REGULATION NO 1408/71 BECAUSE HE COMES WITHIN THE SCOPE OF SUBPARAGRAPH ( II ) OF THAT PARAGRAPH .
14 FOR THE PURPOSES OF THE REPLY TO THIS QUESTION IT IS NECESSARY TO SET OUT, IN ADDITION TO THE CIRCUMSTANCES PREVIOUSLY MENTIONED, THE FOLLOWING FACTS AND ASPECTS OF NATIONAL LAW WHICH ARE PECULIAR TO THE SITUATION OF THE CLAIMANT AND WHICH HAVE BEEN SET OUT BY THE NATIONAL TRIBUNAL :
- THE CLAIMANT WHEN HE FELL ILL WAS COVERED BY COMPULSORY INSURANCE UNDER A SOCIAL SECURITY SCHEME WHICH IN PRACTICE APPLIED INTER ALIA TO ALL EMPLOYED PERSONS AND SELF-EMPLOYED PERSONS WHICH NEVERTHELESS DISTINGUISHED BETWEEN THOSE CATEGORIES BOTH WITH REGARD TO THE CONTRIBUTIONS TO BE PAID AND TO THE BENEFITS TO WHICH THE INSURED PERSONS WERE ENTITLED ;
- THE CLAIMANT, HOWEVER, WAS NOT OBLIGED TO PAY CONTRIBUTIONS FOR THE PERIOD DURING WHICH HE WAS ABROAD ;
- THE CLAIMANT HAD CONTRIBUTED TO THE SCHEME, FIRST FOR NINE YEARS AS AN EMPLOYED PERSON AND SUBSEQUENTLY UNTIL HIS DEATH, THAT IS, FOR A PERIOD OF EIGHTEEN YEARS, AS A SELF-EMPLOYED PERSON ;
- THE RATE OF SICKNESS BENEFIT UNDER THE PROVISIONS OF THIS SCHEME, WHICH THE CLAIMANT COULD HAVE CLAIMED WHEN HE FELL ILL BUT FOR THE DISQUALIFICATION CLAUSE, WAS FIXED IN TERMS OF THE RATE OF THE RETIREMENT PENSION TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD NOT CONTINUED TO WORK AFTER REACHING THE AGE OF SIXTY-FIVE YEARS ;
- THE CLAIMANT UNDER THOSE PROVISIONS COULD ONLY HAVE CLAIMED THE FULL RATE OF SICKNESS BENEFITS IN CASH BY AGGREGATING THE CONTRIBUTIONS PAID BY HIM OR ON HIS BEHALF WHEN HE HAD THE STATUS OF AN EMPLOYED PERSON WITH HIS CONTRIBUTIONS AS A SELF-EMPLOYED PERSON .
15 A PERSON IN SUCH A SITUATION FULFILS THE FIRST TWO CONDITIONS SET OUT IN SUBPARAGRAPH ( II ) IN THAT HE IS ' COMPULSORILY INSURED FOR ONE OR MORE OF THE CONTINGENCIES COVERED BY THE BRANCHES OF SOCIAL SECURITY DEALT WITH IN THIS REGULATION '
. . . ' UNDER A SOCIAL SECURITY SCHEME . . . FOR THE WHOLE WORKING POPULATION ' .
16 MORE PARTICULARLY, WITH REGARD TO THE FIRST CONDITION, THE INSURANCE IS ' COMPULSORY ', SINCE THE PERSON CONCERNED IS INSURED UNDER THE RELEVANT SCHEME IRRESPECTIVE OF HIS WISHES AND THE INSURANCE DOES NOT CEASE TO BE COMPULSORY BECAUSE OF THE FACT THAT DURING CERTAIN LIMITED PERIODS, SUCH AS A STAY ABROAD, PAYMENT OF CONTRIBUTIONS IS OPTIONAL FOR HIM .
17 CONSEQUENTLY THE POINT TO BE SETTLED AMOUNTS TO WHETHER THE PERSONS CONCERNED ALSO FULFIL THE CONDITIONS SET OUT IN THE FIRST INDENT OF SUBPARAGRAPH ( II ) NAMELY WHETHER ' ( SUCH A PERSON ) CAN BE IDENTIFIED AS AN EMPLOYED PERSON BY VIRTUE OF THE MANNER IN WHICH SUCH SCHEME IS ADMINISTERED OR FINANCED ', ALWAYS BEARING IN MIND THAT, HAVING REGARD TO THE FACTS OF THE PRESENT CASE, THIS QUESTION NEED ONLY BE CONSIDERED IN RELATION TO THE CONTINGENCY OF ' SICKNESS ' .
18 IT IS IMPOSSIBLE TO DISREGARD THE FACT THAT REGULATION NO 1408/71, WHICH WAS ADOPTED BEFORE THE ACCESSION OF THE NEW MEMBER STATES, WAS NOT FORMULATED IN SUCH A WAY AS TO TAKE ACCOUNT OF THE SPECIAL FEATURES OF THE RESPECTIVE LEGISLATIONS OF THE SAID STATES .
19 THE REGULATION MUST BE INTERPRETED ABOVE ALL IN THE LIGHT OF THE SPIRIT AND OF THE OBJECTIVES OF THE TREATY .
20 IN THIS CONNEXION IT MUST BE BORNE IN MIND THAT, AS THE COURT HAS PREVIOUSLY HELD, THE COMMUNITY RULES ON SOCIAL SECURITY ' FOLLOW A GENERAL TENDENCY OF THE SOCIAL LAW OF MEMBER STATES TO EXTEND THE BENEFITS OF SOCIAL SECURITY IN FAVOUR OF NEW CATEGORIES OF PERSONS BY REASON OF IDENTICAL RISKS '
( JUDGMENT OF 19 DECEMBER 1968, DE CICCO, CASE 19/68, ( 1968 ) ECR 473 ; JUDGMENT OF 27 OCTOBER 1971, JANSSEN, CASE 23/71, ( 1971 ) ECR 864 ).
21 LASTLY, ALTHOUGH REGULATION NO 1408/71, UNLIKE REGULATION NO 3 WHICH PRECEDED IT, NO LONGER EMPLOYS THE EXPRESSION ' WAGE-EARNERS OR ASSIMILATED WORKERS '
AND MERELY REFERS, IN THE TERMS OF ITS HEADING, TO ' EMPLOYED PERSONS ', CERTAIN OF THE PROVISIONS OF THIS REGULATION NEVERTHELESS SHOW CLEARLY THAT IT ALSO APPLIES TO CERTAIN CATEGORIES OF PERSONS WHO, WHEN THE CONTINGENCY OCCURS, DO NOT HAVE THE STATUS OF ' EMPLOYED PERSONS '
WITHIN THE MEANING OF THE LAW OF EMPLOYMENT .
22 FIRST, ACCORDING TO ARTICLE 2 ( 1 ) WHICH DETERMINES THE PERSONS COVERED BY THE REGULATION, THE REGULATION SHALL APPLY TO WORKERS WHO ARE ' OR HAVE BEEN '
SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF ONE OR MORE MEMBER STATES .
23 SECONDLY, UNDER ARTICLE 34 OF THE REGULATION, FOR THE PURPOSES OF CHAPTER 1 OF TITLE III ( THE CHAPTER DEVOTED INTER ALIA TO THE CONTINGENCY OF SICKNESS ) A PENSIONER WHO IS ENTITLED TO BENEFITS IN KIND UNDER THE LEGISLATION OF A MEMBER STATE AS THE RESULT OF PURSUING A PROFESSIONAL OR TRADE ACTIVITY ' SHALL . . . BE CONSIDERED AS A WORKER ' .
24 WHILST THE REGULATION THUS COVERS CERTAIN PERSONS WHO HAVE LOST THE STATUS OF WORKER AND WHO ARE INDEED NO LONGER INSURED UNDER A SOCIAL SECURITY SCHEME IN ONE OF THE MEMBER STATES IT CANNOT BE EXCLUDED THAT THE REGULATION MAY BE APPLICABLE, WHERE APPROPRIATE, TO PERSONS WHO, ALTHOUGH THEY HAVE LOST THE STATUS AS EMPLOYED PERSONS, REMAIN COMPULSORILY INSURED UNDER THE SAME SCHEME WHICH COVERED THEM PREVIOUSLY WHEN THEY HAD THAT STATUS .
25 FINALLY, AS PARAGRAPH 1 OF POINT I ( UNITED KINGDOM ) OF ANNEX V TO REGULATION NO 1408/71 STATES CLEARLY, THE REGULATION ALSO APPLIES TO PERSONS WHO, IN ACCORDANCE WITH THE RELEVANT NATIONAL LEGISLATION, THAT IS BRITISH LEGISLATION, ARE OBLIGED TO PAY CONTRIBUTIONS AS ' EMPLOYED PERSONS '
ALTHOUGH IN FACT THEY DO NOT HAVE THIS STATUS .
26 ARTICLE 1 ( A ) ( II ) OF THE REGULATION MUST BE INTERPRETED IN THE LIGHT OF THESE CONSIDERATIONS .
27 THIS PROVISION REFERS TO THE CASE IN WHICH, IN ORDER TO ' IDENTIFY '
AS AN ' EMPLOYED PERSON '
A PERSON WHO IS INSURED UNDER A SOCIAL SECURITY SCHEME FOR THE WHOLE WORKING POPULATION, REFERENCE MUST BE MADE TO THE ' MANNER IN WHICH SUCH SCHEME IS ADMINISTERED OR FINANCED ' .
28 CONSEQUENTLY THE PROVISION MUST BE UNDERSTOOD AS REFERRING ALSO TO PERSONS WHO ARE NOT ' EMPLOYED PERSONS '
WITHIN THE MEANING OF THE LAW OF EMPLOYMENT BUT WHO MUST BE TREATED AS SUCH FOR THE PURPOSES OF APPLYING REGULATION NO 1408/71, TAKING ACCOUNT ON THE ONE HAND OF THE OBJECTIVES AND OF THE SPIRIT OF THIS REGULATION AND OF ARTICLES 48 TO 51 OF THE TREATY WHICH FORM ITS BASIS AND, ON THE OTHER HAND, OF THE SPECIAL FEATURES OF THE ADMINISTRATION OR FINANCING OF THE SCHEME TO WHICH SUCH PERSONS ARE AFFILIATED AND OF THE CHANGES WHICH HAVE TAKEN PLACE IN THE NATURE OF SUCH AFFILIATION .
29 THOSE CONDITIONS ARE FULFILLED IN CASES LIKE THE PRESENT WHICH ARE DISTINGUISHED BY THE FACT THAT ON THE ONE HAND THE PERSON CONCERNED ALSO PAID CONTRIBUTIONS AS AN EMPLOYED PERSON TO THE FINANCING OF THE RELEVANT SCHEME AND ON THE OTHER HAND THAT HIS ENTITLEMENT TO SICKNESS BENEFITS IN CASH AT THE FULL RATE DEPENDS UPON TAKING ACCOUNT OF THOSE CONTRIBUTIONS .
30 ACCORDINGLY THE REPLY TO THE NATIONAL INSURANCE COMMISSIONER MUST BE THAT PERSONS IN THE SITUATION DESCRIBED BY THAT TRIBUNAL ARE, UNDER BRITISH LEGISLATION, ' WORKERS '
WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71 FOR THE PURPOSES OF THE APPLICATION OF THE FIRST SENTENCE OF ARTICLE 22 ( 1 ) ( II ) OF THAT REGULATION .
THE SECOND AND FOURTH QUESTIONS
31 IN THE SECOND AND FOURTH QUESTIONS THE COURT IS ASKED WHETHER THE PERSONS IN THE ABOVEMENTIONED SITUATION CONSTITUTE ' WORKERS '
WITHIN THE MEANING OF PARAGRAPH ( A ) OF ARTICLE 1 IN THAT THEY COME WITHIN THE SCOPE EITHER OF SUBPARAGRAPH ( I ) OR OF SUBPARAGRAPH ( III ) OF THAT PARAGRAPH .
32 IN VIEW OF THE REPLY TO BE GIVEN TO THE THIRD QUESTION IT IS UNNECESSARY TO CONSIDER THESE QUESTIONS .
Decision on costs
COSTS
33 THE COSTS INCURRED BY THE BRITISH GOVERNMENT, THE DANISH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
34 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE CASE PENDING BEFORE THE NATIONAL INSURANCE COMMISSIONER COSTS ARE A MATTER FOR HIM TO DECIDE .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE NATIONAL INSURANCE COMMISSIONER BY DECISION OF 12 FEBRUARY 1976, HEREBY RULES :
1 . THE PROVISION IN PARAGRAPH 1 OF POINT I ( UNITED KINGDOM ) OF ANNEX V TO REGULATION NO 1408/71, FAR FROM RESTRICTING THE DEFINITION OF THE TERM ' WORKER '
WHICH APPEARS IN ARTICLE 1 ( A ) OF THE REGULATION, IS SOLELY INTENDED TO CLARIFY THE SCOPE OF SUBPARAGRAPH ( II ) OF THIS PARAGRAPH VIS-A-VIS BRITISH LEGISLATION . 2 . A PERSON WHO :
- WAS COMPULSORILY INSURED AGAINST THE CONTINGENCY OF ' SICKNESS '
SUCCESSIVELY AS AN EMPLOYED PERSON AND AS A SELF-EMPLOYED PERSON UNDER A SOCIAL SECURITY SCHEME FOR THE WHOLE WORKING POPULATION ;
- WAS A SELF-EMPLOYED PERSON WHEN THIS CONTINGENCY OCCURRED ;
- AT THE SAID TIME AND UNDER THE PROVISIONS OF THE SAID SCHEME, NEVERTHELESS COULD HAVE CLAIMED SICKNESS BENEFITS IN CASH AT THE FULL RATE ONLY IF THERE WERE TAKEN INTO ACCOUNT BOTH THE CONTRIBUTIONS PAID BY HIM OR ON HIS BEHALF WHEN HE WAS AN EMPLOYED PERSON AND THOSE WHICH HE MADE AS A SELF-EMPLOYED PERSON ;
CONSTITUTES, AS REGARDS BRITISH LEGISLATION, A ' WORKER '
WITHIN THE MEANING OF ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71 FOR THE PURPOSES OF THE APPLICATION OF THE FIRST SENTENCE OF ARTICLE 22 ( 1 ) ( II ) OF THIS REGULATION .