Judgment of the Court of 28 June 1978. - Patrick Christopher Kenny v Insurance Officer. - Reference for a preliminary ruling: National Insurance Commissioner - United Kingdom. - Case 1/78.



European Court reports 1978 Page 01489

Greek special edition Page 00461

Portuguese special edition Page 00505

Spanish special edition Page 00435

Swedish special edition Page 00137

Finnish special edition Page 00137



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - DISCRIMINATION ON GROUND OF NATIONALITY - PROHIBITION - DIRECT EFFECT

( EEC TREATY , ARTS . 7 AND 48 ; REGULATION NO 1408/71 OF THE COUNCIL , ART . 3 ( 1 ))

2 . COMMUNITY LAW - PRINCIPLE OF NON-DISCRIMINATION ON GROUND OF NATIONALITY - DISPARITIES IN TREATMENT RESULTING FROM DIVERGENCES BETWEEN LAWS OF MEMBER STATES - EXCLUSION

( EEC TREATY , ARTS . 7 AND 48 )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - CASH BENEFITS - LOSS OR SUSPENSION OF RIGHT - GROUND - FACTS OCCURRING IN TERRITORY OF COMPETENT STATE - ANALOGOUS FACTS OCCURRING IN ANOTHER MEMBER STATE - TREATMENT AS EQUIVALENT - PERMISSIBILITY - CONDITIONS

( EEC TREATY , ARTS . 7 AND 48 ; REGULATION NO 1408/71 OF THE COUNCIL , ART . 3 ( 1 ), ART . 19 ( 1 ) ( B ) AND ART . 22 ( 1 ) ( A ) ( II ))

Summary

1 . WITHIN THE SCOPE OF APPLICATION OF REGULATION NO 1408/71 THE FIRST PARAGRAPH OF ARTICLE 7 OF THE TREATY , AS IMPLEMENTED BY ARTICLE 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF THAT REGULATION , IS DIRECTLY APPLICABLE IN MEMBER STATES .

2 . BY PROHIBITING EVERY MEMBER STATE FROM APPLYING ITS LAW DIFFERENTLY ON THE GROUND OF NATIONALITY , WITHIN THE FIELD OF APPLICATION OF THE TREATY , ARTICLES 7 AND 48 ARE NOT CONCERNED WITH ANY DISPARITIES IN TREATMENT WHICH MAY RESULT , BETWEEN MEMBER STATES , FROM DIVERGENCES EXISTING BETWEEN THE LAWS OF THE VARIOUS MEMBER STATES , SO LONG AS THE LATTER AFFECT ALL PERSONS SUBJECT TO THEM IN ACCORDANCE WITH OBJECTIVE CRITERIA AND WITHOUT REGARD TO THEIR NATIONALITY .

3 . ARTICLES 7 AND 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 DO NOT PROHIBIT THE TREATMENT BY THE INSTITUTIONS OF MEMBER STATES OF CORRESPONDING FACTS OCCURRING IN ANOTHER MEMBER STATE AS EQUIVALENT TO FACTS WHICH , IF THEY OCCUR IN THE NATIONAL TERRITORY , CONSTITUTE A GROUND FOR THE LOSS OR SUSPENSION OF THE RIGHT TO CASH BENEFITS ; THE DECISION ON THIS MATTER IS FOR THE NATIONAL AUTHORITIES , PROVIDED THAT IT APPLIES WITHOUT REGARD TO NATIONALITY AND THAT THOSE FACTS ARE NOT DESCRIBED IN SUCH A WAY THAT THEY LEAD IN FACT TO DISCRIMINATION AGAINST NATIONALS OF THE OTHER MEMBER STATES .

Parties

IN CASE 1/78

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

PATRICK CHRISTOPHER KENNY

AND

INSURANCE OFFICER

Subject of the case

ON THE INTERPRETATION OF ARTICLE 7 OF THE TREATY AND OF CERTAIN PROVISIONS 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

Grounds

1BY DECISION OF 29 DECEMBER 1977 , RECEIVED AT THE COURT OF JUSTICE ON 3 JANUARY 1978 , THE NATIONAL INSURANCE COMMISSIONER REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 7 OF THE TREATY AND OF ARTICLES 19 ( 1 ) ( B ) AND 22 ( 1 ) ( A ) ( II ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2THESE QUESTIONS HAVE BEEN REFERRED TO THE COURT WITHIN THE CONTEXT OF A DISPUTE BETWEEN THE INSURANCE OFFICER AND THE PLAINTIFF IN THE MAIN ACTION OVER THE RIGHT OF THE LATTER TO RECEIVE THE CASH BENEFITS FOR INCAPACITY FOR WORK BECAUSE OF SICKNESS , AS PROVIDED FOR IN THE NATIONAL INSURANCE ACT 1965 .

3THE PLAINTIFF IN THE MAIN ACTION , A NATIONAL OF THE REPUBLIC OF IRELAND WHO IS HOWEVER RESIDENT IN GREAT BRITAIN , IS , AS A WORKER , SUBJECT TO THE NATIONAL INSURANCE ACT AND THEREFORE ENTITLED TO RECEIVE THE ABOVE-MENTIONED BENEFITS IF HE FULFILS THE CONDITIONS FOR THE ACQUISITION OF THAT RIGHT .

4HE WENT TO IRELAND AND WAS IMPRISONED THERE , FOR THE REASONS MENTIONED IN THE DECISION MAKING THE REFERENCE , FROM 28 JUNE 1973 TO 28 MARCH 1974 DURING WHICH PERIOD HE BECAME ILL AND HAD TO RECEIVE TREATMENT , FIRST IN THE PRISON IN WHICH HE WAS SERVING HIS SENTENCE AND THEN , FOR A SHORT PERIOD , IN A HOSPITAL OUTSIDE THE PRISON .

5UNDER SECTION 49 ( 1 ) OF THE NATIONAL INSURANCE ACT 1965 , IN THE VERSION THEN IN FORCE , A PERSON ' ' UNDERGOING IMPRISONMENT OR DETENTION IN LEGAL CUSTODY ' ' LOSES THE RIGHT TO RECEIVE A BENEFIT FOR THE PERIOD OF IMPRISONMENT OR DETENTION , EXCEPT WHERE REGULATIONS OTHERWISE PROVIDE .

6THE QUESTIONS REFERRED TO THE COURT ASK IN SUBSTANCE WHETHER THE NATIONAL COURT MAY OR MUST , UNDER COMMUNITY LAW , TREAT , AS A GROUND FOR THE LOSS OR SUSPENSION OF THE RIGHT TO BENEFITS LAID DOWN BY THE NATIONAL INSURANCE ACT , IMPRISONMENT OR DETENTION IN LEGAL CUSTODY IN ANOTHER MEMBER STATE AS EQUIVALENT TO IMPRISONMENT OR DETENTION IN LEGAL CUSTODY IN GREAT BRITAIN .

THE FIRST QUESTION

7THE FIRST QUESTION ASKS WHETHER WITHIN THE SCOPE OF APPLICATION OF REGULATION NO 1408/71 ARTICLE 7 OF THE EEC TREATY IS DIRECTLY APPLICABLE IN MEMBER STATES .

8UNDER THE FIRST PARAGRAPH OF ARTICLE 7 , WITHIN THE SCOPE OF APPLICATION OF THE TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY IS PROHIBITED .

9AS REGARDS WORKERS , THIS RULE HAS BEEN IMPLEMENTED BY ARTICLES 48 TO 51 OF THE EEC TREATY AND BY MEASURES OF THE COMMUNITY INSTITUTIONS ADOPTED ON THE BASIS OF THOSE ARTICLES , IN PARTICULAR , REGULATION NO 1408/71 .

10ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT PERSONS WHO ARE RESIDENT IN THE TERRITORY OF ONE OF THE MEMBER STATES AND TO WHOM THE REGULATION APPLIES SHALL BE SUBJECT TO THE SAME OBLIGATIONS AND ENJOY THE SAME BENEFITS UNDER THE SOCIAL SECURITY LEGISLATION OF ANY MEMBER STATE AS THE NATIONALS OF THAT STATE .

11THIS PROVISION IS DESIGNED TO ENSURE FOR WORKERS COVERED BY THE REGULATION , IN ACCORDANCE WITH ARTICLE 48 OF THE TREATY , EQUALITY IN THE AREA OF SOCIAL SECURITY WITHOUT DISTINCTION AS TO NATIONALITY , BY PROHIBITING ANY DISCRIMINATION IN SUCH MATTERS ARISING FROM THE NATIONAL LEGISLATION OF MEMBER STATES .

12IT IS THEREFORE NECESSARY TO REPLY TO THE FIRST QUESTION TO THE EFFECT THAT WITHIN THE SCOPE OF APPLICATION OF REGULATION NO 1408/71 THE FIRST PARAGRAPH OF ARTICLE 7 OF THE TREATY , AS IMPLEMENTED BY ARTICLE 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF THAT REGULATION , IS DIRECTLY APPLICABLE IN MEMBER STATES .

THE SECOND AND THIRD QUESTIONS

13THESE QUESTIONS ASK ON THE ONE HAND WHETHER THE COMPETENT INSTITUTION OF A MEMBER STATE WHICH IS REQUIRED BY EITHER ARTICLE 19 ( 1 ) ( B ) OR ARTICLE 22 ( 1 ) ( A ) ( II ) OF REGULATION NO 1408/71 TO PAY CASH BENEFITS TO A WORKER OF ANOTHER MEMBER STATE IN ACCORDANCE WITH THE LEGISLATION WHICH IT ADMINISTERS IS ENTITLED TO TREAT FACTS OCCURRING IN THE TERRITORY OF ANOTHER MEMBER STATE AS EQUIVALENT TO CORRESPONDING FACTS OCCURRING IN ITS OWN STATE BEING FACTS WHICH , HAD THEY OCCURRED IN ITS OWN STATE , WOULD HAVE DISQUALIFIED THE WORKER CONCERNED IN PART OR IN WHOLE FROM RECEIVING THE BENEFITS AND WHETHER IT MAY WITHOLD BENEFIT ACCORDINGLY ( THE SECOND QUESTION ) AND , ON THE OTHER , WHETHER THE ANSWER TO THE PRECEDING QUESTION WOULD BE DIFFERENT IF THE WORKER CONCERNED WERE A NATIONAL OF THE MEMBER STATE OF THE COMPETENT INSTITUTION ( THE THIRD QUESTION ).

14ARTICLE 19 ( 1 ) ( B ), WHICH GOVERNS THE RIGHT TO CASH SICKNESS AND MATERNITY BENEFITS WHERE THE WORKER IN QUESTION RESIDES IN A MEMBER STATE OTHER THAN THE COMPETENT STATE , PROVIDES THAT :

' ' 1 . A WORKER RESIDING IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE , WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS , TAKING ACCOUNT WHERE APPROPRIATE OF THE PROVISIONS OF ARTICLE 18 , SHALL RECEIVE IN THE STATE IN WHICH HE IS RESIDENT :

( A ) . . .

( B ) CASH BENEFITS PROVIDED BY THE COMPETENT INSTITUTION IN ACCORDANCE WITH THE LEGISLATION WHICH IT ADMINISTERS . . . ' ' .

15SIMILARLY , ARTICLE 22 ( 1 ) ( A ) ( II ), WHICH COVERS CASES IN WHICH A WORKER FALLS ILL DURING A STAY IN A MEMBER STATE OTHER THAN THE STATE OF THE COMPETENT INSTITUTION , PROVIDES THAT , TAKING ACCOUNT WHERE APPROPRIATE OF THE PROVISIONS OF ARTICLE 18 , THAT WORKER IS ENTITLED ' ' TO CASH BENEFITS PROVIDED BY THE COMPETENT INSTITUTION IN ACCORDANCE WITH THE LEGISLATION WHICH IT ADMINISTERS ' ' .

16IT FOLLOWS CLEARLY FROM THESE PROVISIONS THAT , SUBJECT TO THE APPLICATION OF ARTICLE 18 ON THE AGGREGATION , FOR THE PURPOSES OF THE ACQUISITION , RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS , OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES , IT IS FOR THE NATIONAL LEGISLATION TO LAY DOWN THE CONDITIONS FOR THE ACQUISITION , RETENTION , LOSS OR SUSPENSION OF THE RIGHT TO SOCIAL SECURITY BENEFITS SO LONG AS THOSE CONDITIONS APPLY WITHOUT DISCRIMINATION TO THE NATIONALS OF THE MEMBER STATE CONCERNED AND TO THOSE OF OTHER MEMBER STATES .

17IT WOULD ONLY BE OTHERWISE IF THE CONDITIONS FOR THE ACQUISITION OR RETENTION OF THE RIGHT WERE DEFINED IN SUCH A WAY THAT THEY COULD IN FACT BE FULFILLED ONLY BY NATIONALS OR IF THE CONDITIONS FOR LOSS OR SUSPENSION OF THE RIGHT WERE DEFINED IN SUCH A WAY THAT THEY WOULD IN FACT MORE EASILY BE SATISFIED BY NATIONALS OF OTHER MEMBER STATES THAN BY THOSE OF THE STATE OF THE COMPETENT INSTITUTION .

18BY PROHIBITING EVERY MEMBER STATE FROM APPLYING ITS LAW DIFFERENTLY ON THE GROUND OF NATIONALITY , WITHIN THE FIELD OF APPLICATION OF THE TREATY , ARTICLES 7 AND 48 ARE NOT CONCERNED WITH ANY DISPARITIES IN TREATMENT WHICH MAY RESULT , BETWEEN MEMBER STATES , FROM DIVERGENCES EXISTING BETWEEN THE LAWS OF THE VARIOUS MEMBER STATES , SO LONG AS THE LATTER AFFECT ALL PERSONS SUBJECT TO THEM IN ACCORDANCE WITH OBJECTIVE CRITERIA AND WITHOUT REGARD TO THEIR NATIONALITY .

19THEREFORE , BY REFERRING EACH INSTITUTION TO ' ' THE LEGISLATION WHICH IT ADMINISTERS ' ' ARTICLES 19 ( 1 ) ( B ) AND 22 ( 1 ) ( A ) ( II ) OF REGULATION NO 1408/71 COMPLY WITH THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLES 7 AND 48 OF THE TREATY AND IN ARTICLE 3 ( 1 ) OF THAT REGULATION .

20IT IS THEREFORE APPROPRIATE TO REPLY THAT ARTICLES 7 AND 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 DO NOT PROHIBIT - THOUGH THEY DO NOT REQUIRE - THE TREATMENT BY THE INSTITUTIONS OF MEMBER STATES OF CORRESPONDING FACTS OCCURRING IN ANOTHER MEMBER STATE AS EQUIVALENT TO FACTS WHICH , IF THEY OCCUR ON THE NATIONAL TERRITORY , CONSTITUTE A GROUND FOR THE LOSS OR SUSPENSION OF THE RIGHT TO CASH BENEFITS ; THE DECISION ON THIS MATTER IS FOR THE NATIONAL AUTHORITIES , PROVIDED THAT IT APPLIES WITHOUT REGARD TO NATIONALITY AND THAT THOSE FACTS ARE NOT DESCRIBED IN SUCH A WAY THAT THEY LEAD IN FACT TO DISCRIMINATION AGAINST NATIONALS OF THE OTHER MEMBER STATES .

21THE REPLY GIVEN ABOVE APPLIES ALSO AND TO THE SAME EXTENT TO CASES IN WHICH THE WORKER CONCERNED IS A NATIONAL OF THE MEMBER STATE TO WHICH THE COMPETENT INSTITUTION BELONGS .

Decision on costs

COSTS

22THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

23AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , 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 QUESTIONS REFERRED TO IT BY THE NATIONAL INSURANCE COMMISSIONER BY DECISION OF 29 DECEMBER 1977 HEREBY RULES :

1 . WITHIN THE SCOPE OF APPLICATION OF REGULATION NO 1408/71 ARTICLE 7 OF THE TREATY , AS IMPLEMENTED BY ARTICLE 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF THAT REGULATION , IS DIRECTLY APPLICABLE IN MEMBER STATES .

2 . ARTICLES 7 AND 48 OF THE TREATY AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 DO NOT PROHIBIT - THOUGH THEY DO NOT REQUIRE - THE TREATMENT BY THE INSTITUTIONS OF MEMBER STATES OF CORRESPONDING FACTS OCCURRING IN ANOTHER MEMBER STATE AS EQUIVALENT TO FACTS WHICH , IF THEY OCCUR ON THE NATIONAL TERRITORY , CONSTITUTE A GROUND FOR THE LOSS OR SUSPENSION OF THE RIGHT TO CASH BENEFITS ; THE DECISION ON THIS MATTER IS FOR THE NATIONAL AUTHORITIES , PROVIDED THAT IT APPLIES WITHOUT REGARD TO NATIONALITY AND THAT THOSE FACTS ARE NOT DESCRIBED IN SUCH A WAY THAT THEY LEAD IN FACT TO DISCRIMINATION AGAINST NATIONALS OF THE OTHER MEMBER STATES .

3 . THE REPLY GIVEN TO THE SECOND QUESTION APPLIES ALSO AND TO THE SAME EXTENT TO CASES IN WHICH THE WORKER CONCERNED IS A NATIONAL OF THE MEMBER STATE TO WHICH THE COMPETENT INSTITUTION BELONGS .