Judgment of the Court of 16 November 1972. - Allgemeine Ortskrankenkasse Hamburg v Landesversicherungsanstalt Schleswig-Holstein. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Tuberculosis benefits. - Case 16-72.



European Court reports 1972 Page 01141

Danish special edition Page 00285

Greek special edition Page 00265

Portuguese special edition Page 00387



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PRELIMINARY RULINGS - EFFECTS OF A NATIONAL LAW IN RELATION TO COMMUNITY LAW - POWERS OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - APPLICATION TO NATIONAL LEGISLATIVE SYSTEMS - EXTENSION TO PROPHYLACTIC AND REMEDIAL MEASURES

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 2 ( 1 ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS BENEFITS - CONCEPT - ACQUISITION OF THE RIGHT BY AGGREGATION OF THE INSURANCE PERIODS COMPLETED

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 2, ARTICLE 16 )

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - ACQUISITION OF A RIGHT - CONSIDERATION OF INSURANCE PERIODS COMPLETED IN THIRD COUNTRIES - NO OBLIGATION

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 1 ( B ))

Summary

1 . THE COURT HAS POWER TO PROVIDE THE NATIONAL COURT WITH FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH MIGHT BE USEFUL TO IT IN EVALUATING THE EFFECTS OF A PROVISION OF NATIONAL LAW .

2 . ARTICLE 2 ( 1 ) OF REGULATION NO 3 ALSO REFERS TO PROPHYLACTIC OR REMEDIAL MEASURES .

3 . THE SOCIAL SECURITY BENEFITS WHICH, ALTHOUGH NOT RELATED TO THE " EARNING CAPACITY " OF THE INSURED PERSON, ARE ALSO AWARDED TO THE MEMBERS OF HIS FAMILY AND ARE PRINCIPALLY INTENDED TO AID THE RECOVERY OF THE INVALID AND TO PROTECT THOSE WHO ARE IN CONTACT WITH HIM MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 .

FOR THE PURPOSES OF ACQUIRING A RIGHT TO SUCH BENEFITS THE AGGREGATION OF THE AFFILIATION PERIODS COMPLETED IN THE VARIOUS MEMBER STATES IS GOVERNED BY ARTICLE 16 ET SEQ . OF REGULATION NO 3 .

4 . FOR THE PURPOSE OF ACQUIRING A RIGHT TO SOCIAL SECURITY BENEFITS, SOCIAL SECURITY ORGANIZATIONS IN THE MEMBER STATES ARE NOT BOUND TO TAKE INTO ACCOUNT AFFILIATION PERIODS COMPLETED IN THIRD COUNTRIES .

Parties

IN CASE 16/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE IVTH SENATE OF THE BUNDESSOZIALGERICHT ( SOCIAL SECURITY COURT ) KASSEL FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALLGEMEINE ORTSKRANKENKASSE HAMBURG, AND

LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN, LUEBECK,

Subject of the case

ON THE INTERPRETATION OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, IN PARTICULAR ARTICLES 26 AND 27,

Grounds

1 BY ORDER OF 1 MARCH 1972, RECEIVED AT THE COURT REGISTRY ON 24 APRIL 1972, THE BUNDESSOZIALGERICHT REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF EEC REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS WITH REFERENCE TO THE APPLICATION OF ARTICLE 1244A OF THE REICHSVERSICHERUNGSORDNUNG ( RVO ) ( GERMAN STATE INSURANCE REGULATION ).

THIS ARTICLE CONCERNS THE BENEFITS WHICH THE PENSION ORGANIZATIONS MUST PAY TO INSURED PERSONS WHO SUFFER FROM TUBERCULOSIS . THE QUESTION ASKS WHETHER ARTICLES 26 AND 27 OF REGULATION NO 3 ARE APPLICABLE BY ANALOGY TO BENEFITS SUCH AS THOSE REFERRED TO IN ARTICLE 1244A OF THE RVO .

2 THIS ARTICLE WAS INTRODUCED INTO THE RVO BY ARTICLE 31 OF THE LAW OF 23 JULY 1959 CONCERNING ASSISTANCE IN CASES OF TUBERCULOSIS . IN ORDER TO " ENCOURAGE AND ENSURE THE RECOVERY OF INVALIDS " IN ACCORDANCE WITH THE FIRST SENTENCE OF ARTICLE 1 ( 1 ), THIS LAW PROVIDED FOR MEDICAL TREATMENT, AID TO INTEGRATION INTO WORKING LIFE, ECONOMIC AID AND AID OF A PROPHYLACTIC NATURE TO BE PROVIDED BY THE SOCIAL ASSISTANCE ORGANIZATIONS TO ALL PERSONS SUFFERING FROM TUBERCULOSIS TO THE EXTENT TO WHICH THEY CANNOT RECEIVE THE NECESSARY ASSISTANCE BY ANY OTHER MEANS .

ON THE OTHER HAND, BY REFERRING SOLELY TO THOSE TUBERCULOSIS SUFFERERS WHO ARE INSURED WITH AND RECEIVE PENSIONS FROM PENSION INSURANCE ORGANIZATIONS AND TO THEIR SPOUSES AND CHILDREN, THE INTRODUCTION OF ARTICLE 1244A INTO THE RVO BY THE ABOVEMENTIONED ARTICLE 31 COMPELLED THE PENSION INSURANCE ORGANIZATIONS TO PROVIDE SUCH PERSONS WITH, IN PARTICULAR, THE NECESSARY MEDICAL TREATMENT AND A TEMPORARY ALLOWANCE EVEN WHERE, CONTRARY TO THE GENERAL PROVISIONS OF ARTICLE 1236 OF THE RVO CONCERNING THE CONDITIONS UNDER WHICH BENEFITS ARE PAID BY THE PENSION INSURANCE ORGANIZATIONS OF WORKERS, THERE IS NO REASON TO FEAR THAT THE INVALID' S EMPLOYMENT WILL BE JEOPARDIZED OR WHERE NO CHANCE EXISTS OF MAINTAINING, IMPROVING OR RE-ESTABLISHING SUCH EMPLOYMENT BY MEANS OF THE MEASURES PROVIDED FOR .

3 THE FILE SHOWS THAT THE PLAINTIFF IN THE MAIN ACTION A GERMAN SICKNESS INSURANCE ORGANIZATION, CLAIMED UNSUCCESSFULLY FROM A GERMAN PENSION INSURANCE ORGANIZATION THE REIMBURSEMENT OF EXPENSES INCURRED AS A RESULT OF HOSPITAL TREATMENT REQUIRED BY AN ITALIAN MIGRANT WORKER' S DAUGHTER WHO HAD CONTRACTED TUBERCULOSIS .

THE CLAIM FOR REIMBURSEMENT WAS REJECTED ON THE GROUND THAT ARTICLE 1244A OF THE RVO WAS NOT APPLICABLE, SINCE THE INSURANCE PERIODS COMPLETED IN GERMANY BY THE WORKER IN QUESTION WERE INSUFFICIENT TO SATISFY THE CONDITION OF 60 MONTHS' AFFILIATION LAID DOWN THEREIN . IN ORDER TO SETTLE THE CASE BEFORE IT, THE GERMAN COURT MUST DECIDE WHETHER THE AFFILIATION PERIODS PREVIOUSLY COMPLETED BY THE WORKER IN ANOTHER MEMBER STATE MUST BE TAKEN INTO ACCOUNT IN APPLYING ARTICLE 1244A OF THE RVO .

TO THIS END, THEREFORE, THE BUNDESSOZIALGERICHT MUST CLASSIFY THE BENEFITS PROVIDED FOR BY ARTICLE 1244A OF THE RVO IN THE LIGHT OF THE CRITERIA WHICH DEFINE THE SCOPE OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS . WITHOUT BEING EMPOWERED TO CLASSIFY THE ABOVEMENTIONED PROVISION OF THE RVO IN THE CONTEXT OF THE PRESENT PROCEEDINGS, THE COURT MAY, HOWEVER, PROVIDE THE NATIONAL COURT WITH FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH MIGHT BE USEFUL TO IT IN EVALUATING THE EFFECTS OF THAT PROVISION .

4 UNDER THE TERMS OF ARTICLE 1 ( B ), REGULATION NO 3 APPLIES TO ALL THE LEGISLATION OF THE MEMBER STATES RELATING TO " THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY " REFERRED TO IN ARTICLE 2 ( 1 ) AND ( 2 ), AND UNDER ARTICLE 2 ( 3 ) THE REGULATION SHALL NOT APPLY TO " SOCIAL ASSISTANCE AND MEDICAL AID ". IN ORDER TO REPLY TO THE QUESTION REFERRED IT IS FIRST NECESSARY TO CONSIDER WHETHER SUCH ADVANTAGES AS THOSE PROVIDED BY ARTICLE 1244A OF THE RVO ARE INCLUDED IN THE SOCIAL SECURITY BENEFITS LISTED IN ARTICLE 2 ( 1 ) AND ( 2 ) OF REGULATION NO 3 . REGULATION NO 3 MUST BE INTERPRETED WITH REGARD TO THE FUNDAMENTAL AIM OF ARTICLE 51 OF THE TREATY, WHICH IS TO ESTABLISH THE MOST FAVOURABLE CONDITIONS FOR ACHIEVING THE FREEDOM OF MOVEMENT AND EMPLOYMENT OF COMMUNITY WORKERS WITHIN THE TERRITORY OF EACH OF THE MEMBER STATES . THE PURSUIT OF THIS OBJECTIVE ENABLES THE CONCEPT OF SOCIAL SECURITY TO BE REGARDED AS INCLUDING THE AIM OF PREVENTING THE SPREAD OF DISEASE, WHICH CANNOT BE REGARDED AS A MERE MEASURE OF SOCIAL ASSISTANCE .

5 CONSIDERED FROM THIS POINT OF VIEW, A PROVISION WHICH ESTABLISHES A DIRECT LINK BETWEEN THE AFFILIATION OF AN INDIVIDUAL TO A PENSION INSURANCE SCHEME AND THE ACQUISITION OF A RIGHT TO BENEFITS WHICH ARE PAYABLE BY PENSION INSURANCE ORGANIZATIONS TO INSURED PERSONS AND THEIR DEPENDANTS, AS A RESULT OF THE FACT THAT THEY HAVE CONTRACTED TUBERCULOSIS AND CHIEFLY IN ORDER TO BRING ABOUT THEIR RECOVERY MUST BE REGARDED AS FORMING PART OF THE LEGISLATION GOVERNING SOCIAL SECURITY REFERRED TO IN ARTICLE 2 ( 1 ) OF REGULATION NO 3 . THIS CLASSIFICATION CANNOT BE MODIFIED BY THE FACT THAT, SINCE TUBERCULOSIS IS CONTAGIOUS AND CONSTITUTES A DANGER TO PUBLIC HEALTH, IT HAS FORMED THE SUBJECT OF A SPECIAL LAW PROVIDING FOR PROPHYLACTIC OR REMEDIAL MEASURES WHICH THE SOCIAL ASSISTANCE ORGANIZATIONS ARE REQUIRED TO APPLY IN FAVOUR OF ANY PERSON RESIDING IN THE MEMBER STATE CONCERNED, TO THE EXTENT TO WHICH SUCH BENEFITS ARE NOT ALREADY PROVIDED BY THE INSURANCE ORGANIZATIONS .

6 THEREFORE, ARTICLE 2 ( 1 ) OF REGULATION NO 3 COVERS BENEFITS OF A PROPHYLACTIC OR REMEDIAL NATURE .

7 IN ORDER TO REPLY TO THE QUESTION REFERRED IT IS STILL NECESSARY TO CONSIDER WHETHER THE AGGREGATION OF THE AFFILIATION PERIODS COMPLETED IN THE VARIOUS MEMBER STATES, WHICH IS NECESSARY IN ORDER TO ACQUIRE A RIGHT TO THE BENEFITS IN QUESTION, SHOULD BE CARRIED OUT ON THE BASIS OF ARTICLES 26 AND 27 OF REGULATION NO 3 TO WHICH THE GERMAN COURT REFERS .

8 AS IS POINTED OUT IN THE ORDER REFERRING THE MATTER, IN THE ABSENCE OF ANY CONTRARY PROVISION, BENEFITS WHICH ARE NOT RELATED TO THE " EARNING CAPACITY " OF THE INSURED PERSON CANNOT BE REGARDED AS INVALIDITY BENEFITS WITHIN THE MEANING OF ARTICLE ( 2 ) ( 1 ) ( B ) OF REGULATION NO 3 . ON THE OTHER HAND, WHERE SUCH BENEFITS ARE ALSO AWARDED TO THE MEMBERS OF THE FAMILY OF THE INSURED PERSON AND WHERE THEIR ESSENTIAL AIM IS TO CURE THE INVALID AND PROTECT THOSE WHO ARE IN CONTACT WITH HIM THEY MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 .

9 THEREFORE, THE AGGREGATION OF THE AFFILIATION PERIODS COMPLETED IN THE VARIOUS MEMBER STATES, FOR THE PURPOSES OF ACQUIRING A RIGHT TO SUCH BENEFITS, IS GOVERNED BY ARTICLE 16 ET SEQ . OF REGULATION NO 3 .

10 SECONDLY, THE QUESTION IS ALSO ASKED WHETHER, IN ORDER TO ACQUIRE A RIGHT TO THE BENEFITS IN QUESTION, AN INSURANCE ORGANIZATION IN ONE OF THE MEMBER STATES - THE FEDERAL REPUBLIC OF GERMANY - MUST ALSO TAKE INTO ACCOUNT THOSE PERIODS OF CONTRIBUTION WHICH AN INSURANCE ORGANIZATION IN ANOTHER MEMBER STATE, ITALY, IS BOUND TO CONSIDER UNDER A CONVENTION ON SOCIAL SECURITY CONCLUDED BETWEEN ITALY AND A THIRD COUNTRY, SWITZERLAND .

11 FOR THE PURPOSE OF IMPLEMENTING THE PRINCIPLE OF THE FREE MOVEMENT OF WORKERS, ARTICLE 51 ( A ) OF THE TREATY EMPOWERS THE COUNCIL TO MAKE ARRANGEMENTS TO SECURE FOR WORKERS THE AGGREGATION OF " ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES ". ARTICLE 16 OF REGULATION NO 3, WHICH LAYS DOWN THE RULES RELATING TO AGGREGATION, ONLY REFERS TO THE INSURANCE PERIODS AND ASSIMILATED PERIODS " COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES ". ARTICLE 1 ( B ) OF THAT REGULATION STATES THAT " THE TERM " LEGISLATION " SHALL MEAN ALL LAWS, REGULATIONS AND OTHER ENFORCEABLE PROVISIONS ( DISPOSITIONS STATUTAIRES ) PRESENT AND FUTURE OF EACH MEMBER STATE RELATING TO THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY ".

12 THEREFORE, FOR THE PURPOSES OF ACQUIRING A RIGHT TO SOCIAL SECURITY BENEFITS, SOCIAL SECURITY ORGANIZATIONS IN THE MEMBER STATES ARE NOT BOUND TO TAKE INTO ACCOUNT AFFILIATION PERIODS COMPLETED IN THIRD COUNTRIES .

Decision on costs

13 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND 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 AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT, BY A DECISION OF THAT COURT DATED 1 MARCH 1972, HEREBY RULES :

1 . A PROVISION WHICH ESTABLISHES A DIRECT LINK BETWEEN AFFILIATION TO A PENSION INSURANCE SCHEME AND THE ACQUISITION OF A RIGHT TO BENEFITS WHICH ARE PAYABLE BY PENSION INSURANCE ORGANIZATIONS TO INSURED PERSONS AND THEIR DEPENDANTS AS A RESULT OF THE FACT THAT THEY HAVE CONTRACTED TUBERCULOSIS AND CHIEFLY IN ORDER TO BRING ABOUT THEIR RECOVERY, MUST BE REGARDED AS FORMING PART OF THE LEGISLATION GOVERNING SOCIAL SECURITY REFERRED TO IN ARTICLE 2 ( 1 ) OF REGULATION NO 3;

2 . THE SOCIAL SECURITY BENEFITS WHICH, ALTHOUGH NOT RELATED TO THE " EARNING CAPACITY " OF THE INSURED PERSON, ARE ALSO AWARDED TO THE MEMBERS OF HIS FAMILY AND ARE PRINCIPALLY INTENDED TO AID THE RECOVERY OF THE INVALID AND TO PROTECT THOSE WHO ARE IN CONTACT WITH HIM MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 . FOR THE PURPOSES OF ACQUIRING A RIGHT TO SUCH BENEFITS, THEREFORE, THE AGGREGATION OF THE AFFILIATION PERIODS COMPLETED IN THE VARIOUS MEMBER STATES IS GOVERNED BY ARTICLE 16 ET SEQ . OF REGULATION NO 3 .

3 . FOR THE PURPOSES OF ACQUIRING A RIGHT TO SOCIAL SECURITY BENEFITS, SOCIAL SECURITY ORGANIZATIONS IN THE MEMBER STATES ARE NOT BOUND TO TAKE INTO ACCOUNT AFFILIATION PERIODS COMPLETED IN THIRD COUNTRIES .