Judgment of the Court (Second Chamber) of 22 May 1980. - Margaret Walsh v National Insurance Officer. - Reference for a preliminary ruling: National Insurance Commissioner - United Kingdom. - Social security - Maternity benefits. - Case 143/79.



European Court reports 1980 Page 01639

Greek special edition Page 00197

Spanish special edition Page 00579



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - WORKER - CONCEPT - DEFINITION VIS-A-VIS LEGISLATION - EFFECT - PURPOSE

( REGULATION NO 1408/71 OF THE COUNCIL , ANNEX I , PART I , PARAGRAPH 1 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - WORKER - CONCEPT - PERSON NO LONGER PAYING CONTRIBUTIONS BUT ENTITLED TO BENEFITS BY VIRTUE OF CONTRIBUTIONS PAID - INCLUSION

( REGULATIONS NOS 1408/71 AND 574/72 OF THE COUNCIL )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - LEGISLATION OF MEMBER STATES WITHIN MEANING OF ARTICLE 8 OF REGULATION NO 574/72 - CONCEPT

( REGULATION NO 574/72 OF THE COUNCIL , ART . 8 )

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - CLAIMS , DECLARATIONS OR APPEALS SUBMITTED IN ANOTHER MEMBER STATE - ADMISSIBILITY - DETERMINATION BY INSTITUTION OR COURT OF THE COMPETENT MEMBER STATE

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 86 )

5 . SOCIAL SECURITY OF MIGRANTS WORKERS - BENEFITS - RULES AGAINST OVERLAPPING - MATERNITY BENEFIT - ARTICLE 8 OF REGULATION NO 574/72 - SCOPE

( REGULATION NO 574/72 OF THE COUNCIL , ART . 8 )

Summary

1 . THE PROVISION IN PARAGRAPH ( 1 ) OF PART I ( UNITED KINGDOM ) OF ANNEX V TO REGULATION NO 1408/71 , FAR FROM RESTRICTING THE DEFINITION OF THE TERM ' ' WORKER ' ' AS IT EMERGES FROM ARTICLE 1 ( A ) OF THE REGULATION , IS SOLELY CONCERNED TO CLARIFY THE SCOPE OF SUBPARAGRAPH ( II ) OF THAT PARAGRAPH VIS-A-VIS BRITISH LEGISLATION .

2 . A PERSON WHO IS ENTITLED UNDER THE LEGISLATION OF A MEMBER STATE TO BENEFITS COVERED BY REGULATION NO 1408/71 BY VIRTUE OF CONTRIBUTIONS PREVIOUSLY PAID COMPULSORILY DOES NOT LOSE HIS STATUS AS A ' ' WORKER ' ' WITHIN THE MEANING OF REGULATIONS NOS 1408/71 AND 574/72 BY REASON ONLY OF THE FACT THAT AT THE TIME WHEN THE CONTINGENCY OCCURRED HE WAS NO LONGER PAYING CONTRIBUTIONS AND WAS NOT BOUND TO DO SO .

3 . THE PHRASE ' ' LEGISLATIONS OF TWO OR MORE MEMBER STATES ' ' , WHICH OCCURS IN ARTICLE 8 OF REGULATION NO 574/72 , MUST BE UNDERSTOOD AS ALSO INCLUDING THE PROVISIONS OF COMMUNITY REGULATIONS .

4 . ARTICLE 86 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT WHERE A CLAIM , DECLARATION OR APPEAL IS SUBMITTED TO AN AUTHORITY , INSTITUTION OR COURT OF A MEMBER STATE OTHER THAN THAT UNDER THE LEGISLATION OF WHICH THE BENEFIT MUST BE AWARDED , THAT AUTHORITY , INSTITUTION OR COURT HAS NO POWER TO DETERMINE THE ADMISSIBILITY OF THE CLAIM , DECLARATION OR APPEAL IN QUESTION . THAT POWER BELONGS EXCLUSIVELY TO THE AUTHORITY , INSTITUTION OR COURT OF THE MEMBER STATE UNDER THE LEGISLATION OF WHICH THE BENEFIT MUST BE AWARDED AND TO WHICH THE CLAIM , DECLARATION OR APPEAL MUST IN ALL CIRCUMSTANCES BE FORWARDED .

5 . ARTICLE 8 OF REGULATION NO 574/72 APPLIES ONLY TO THE EXTENT TO WHICH A CLAIM BY THE PERSON CONCERNED MAY IN FACT BE SATISFIED BY THE APPLICATION OF THE LEGISLATION OF TWO OR MORE MEMBER STATES AND ONLY IN REGARD TO THE PERIOD FOR WHICH THE CLAIMANT MAY CLAIM BENEFITS UNDER THE LEGISLATION SPECIFIED BY THAT ARTICLE .

ON THE OTHER HAND THAT PROVISION DOES NOT PRECLUDE A PERSON WHO HAS EXHAUSTED THE MAXIMUM ENTITLEMENT AWARDED BY THE STATE OF THE CONFINEMENT FROM BENEFITING FOR AN ADDITIONAL PERIOD FROM BENEFITS AWARDED BY OTHER LEGISLATION TO WHICH SHE HAS BEEN SUBJECT AND WHICH , FOR REASONS OF THE WELFARE OF THE MOTHER AND CHILD , ALLOWS A LONGER PERIOD OF LEAVE FROM WORK . INDEED , SUCH A RESULT COULD NOT BE REGARDED AS COMING WITHIN THE CATEGORY OF ' ' UNJUSTIFIED OVERLAPPING ' ' WHICH THE PROVISION IN QUESTION SEEKS TO PREVENT .

Parties

IN CASE 143/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE NATIONAL INSURANCE COMMISSIONER , LONDON , FOR A PRELIMINARY RULING IN THE DISPUTE PENDING BEFORE HIM BETWEEN

MARGARET WALSH

AND

NATIONAL INSURANCE OFFICER

Subject of the case

UPON THE INTERPRETATION OF ARTICLE 86 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 ) AND ARTICLE 8 OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ), AND OF THE MEANING OF ' ' WORKER ' ' FOR THE PURPOSES OF BOTH REGULATIONS ,

Grounds

1 BY AN ORDER OF 11 SEPTEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 14 SEPTEMBER 1979 , THE NATIONAL INSURANCE COMMISSIONER , LONDON , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SIX QUESTIONS ON THE INTERPRETATION AND VALIDITY 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 ) AND OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ). THOSE QUESTIONS ARE SUBMITTED IN THE CONTEXT OF A DISPUTE CONCERNING THE MATERNITY BENEFIT DUE TO A PERSON , MRS MARGARET WALSH , WHO WORKED BOTH IN THE UNITED KINGDOM AND IN THE REPUBLIC OF IRELAND AND WHO , AFTER BEARING A CHILD IN IRELAND ON 31 JULY 1975 , RETURNED TO LIVE IN THE UNITED KINGDOM ON 21 AUGUST 1975 .

2 MRS WALSH , WHO , ACCORDING TO THE INFORMATION PROVIDED , APPEARS TO HAVE SATISFIED THE CONDITIONS FOR CLAIMING MATERNITY BENEFIT IN IRELAND , DID NOT HOWEVER LODGE A CLAIM FOR SUCH BENEFIT IN THAT COUNTRY . ON THE CONTRARY , AFTER HER RETURN TO THE UNITED KINGDOM SHE SUBMITTED A CLAIM ON 3 OCTOBER 1975 TO THE BRITISH INSURANCE OFFICER FOR THE MATERNITY BENEFIT PAYABLE BY VIRTUE OF THE UNITED KINGDOM LEGISLATION . ALTHOUGH MRS WALSH SATISFIED THE CONTRIBUTION CONDITIONS FOR THE ACQUISITION OF A RIGHT TO BENEFIT AT A REDUCED RATE THE INSURANCE OFFICER DISALLOWED THE CLAIM ON THE GROUND THAT IT HAD NOT BEEN MADE WITHIN THE REQUISITE TIME AND THAT THERE WAS NO GOOD CAUSE FOR THE DELAY .

3 FOLLOWING THE DISMISSAL OF THE APPEAL WHICH MRS WALSH MADE TO A LOCAL TRIBUNAL , THE CLAIMANT BROUGHT A FURTHER APPEAL BEFORE THE NATIONAL INSURANCE COMMISSIONER . IN THE COURSE OF THE PROCEEDINGS BEFORE THE COMMISIONER CERTAIN ISSUES AROSE CONCERNING THE APPLICATION OF COMMUNITY RULES TO THE CASE IN QUESTION AND THE COMMISSIONER REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS :

' ' ( 1 ) WHETHER A PERSON WHO SATISFIES THE CONTRIBUTION CONDITIONS OF ONE MEMBER STATE ( IN THIS CASE THE UNITED KINGDOM ) FOR ENTITLEMENT TO MATERNITY ALLOWANCE ( IN THIS CASE AT A REDUCED RATE ) THROUGHOUT THE PERIOD FOR WHICH MATERNITY ALLOWANCE IS CLAIMED IN THAT STATE IS A ' WORKER ' FOR THE PURPOSE OF

( A ) REGULATION ( EEC ) NO 1408/71 ; AND

( B ) REGULATION ( EEC ) NO 574/72 ,

NOTWITHSTANDING THAT DURING THAT PERIOD SHE HAS PAID NO CONTRIBUTIONS AND IS NOT LIABLE TO PAY CONTRIBUTIONS .

( 2)WHETHER A WORKER WHO SATISFIES THE CONTRIBUTION CONDITIONS FOR MATERNITY BENEFIT ( EITHER AT THE FULL OR AT A REDUCED RATE ) UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES ( IN THIS CASE THOSE OF THE UNITED KINGDOM AND THE REPUBLIC OF IRELAND ) IS TO BE REGARDED , FOR THE PURPOSE OF ARTICLE 8 OF REGULATION ( EEC ) NO 574/72 AS ' ENTITLED TO CLAIM MATERNITY BENEFITS ' UNDER THOSE LEGISLATIONS

( A ) WHETHER OR NOT SUCH WORKER FALLS TO BE DISQUALIFIED FOR RECEIPT OF SUCH BENEFITS UNDER THE LEGISLATION OF ONE OR MORE OF SUCH MEMBER STATES ON THE GROUND OF DELAY IN CLAIMING OR ON OTHER GROUNDS ; OR

( B)ONLY IF THE CLAIM OF SUCH WORKER WOULD IN FACT SUCCEED UNDER THE LEGISLATION OF ALL SUCH MEMBER STATES .

( 3)WHETHER THE REFERENCE IN ARTICLE 8 OF REGULATION ( EEC ) NO 574/72 TO ' THE LEGISLATIONS OF TWO OR MORE MEMBER STATES ' IS TO BE REGARDED AS ( A ) INCLUDING OR ( B ) EXCLUDING THE REGULATIONS OF THE EUROPEAN ECONOMIC COMMUNITY .

( 4)WHETHER , IN THE CASE OF A WORKER WHO IS ENTITLED TO CLAIM MATERNITY BENEFITS UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES WITHIN THE MEANING OF ARTICLE 8 OF REGULATION ( EEC ) NO 574/72 , THE PROVISION OF THAT ARTICLE THAT THOSE BENEFITS SHALL BE GRANTED EXCLUSIVELY UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE CONFINEMENT TOOK PLACE ( IN THIS CASE THE REPUBLIC OF IRELAND ) OPERATES TO EXCLUDE THE CLAIMANT FROM OBTAINING MATERNITY BENEFITS IN MEMBER STATES WHERE THE CONFINEMENT DID NOT TAKE PLACE ( IN THIS CASE THE UNITED KINGDOM )

( A ) ONLY IN RESPECT OF THE PERIOD FOR WHICH THE CLAIMANT IS ENTITLED TO CLAIM MATERNITY BENEFITS UNDER THE LEGISLATION OF THE MEMBER STATE WHERE THE CONFINEMENT TOOK PLACE ; OR

( B)IN RESPECT OF ALL MATERNITY BENEFITS IN RELATION TO THAT CONFINEMENT IN THOSE MEMBER STATES WHERE THE CONFINEMENT DID NOT TAKE PLACE .

( 5)WHETHER THE SAID ARTICLE 8 , TO THE EXTENT TO WHICH IT OPERATES TO EXCLUDE THE CLAIMANT FROM OBTAINING MATERNITY BENEFITS IN MEMBER STATES WHERE THE CONFINEMENT DID NOT TAKE PLACE IS VALID IN SO OPERATING AND IS NOT ULTRA VIRES .

( 6)WHETHER THE DIRECTIONS IN ARTICLE 86 OF REGULATION ( EEC ) NO 1408/71 AS TO THE FORWARDING OF CLAIMS TO THE COMPETENT AUTHORITY APPLY IN THE CASE OF A CLAIM WHICH SHOULD HAVE BEEN , BUT HAS NOT BEEN , SUBMITTED , IN ORDER TO COMPLY WITH THE LEGISLATION OF ONE MEMBER STATE ( IN THIS CASE THE REPUBLIC OF IRELAND ), WITHIN A SPECIFIED PERIOD TO AN AUTHORITY , INSTITUTION OR COURT OF THAT STATE BUT HAS BEEN SUBMITTED , OUTSIDE THAT PERIOD , TO A CORRESPONDING STATUTORY INSTITUTION OR COURT OF ANOTHER MEMBER STATE ( IN THIS CASE THE DEPARTMENT OF HEALTH AND SOCIAL SECURITY , LONDON , UNITED KINGDOM ). ' '

4 WHEREAS QUESTIONS 1 , 3 AND 6 CONCERN PROVISIONS OR EXPRESSIONS OF GENERAL APPLICATION , QUESTIONS 2 , 4 AND 5 INVOLVE SPECIFIC ISSUES AND MUST BE CONSIDERED IN THE LIGHT OF THE OBJECTIVES OF THE BENEFITS IN QUESTION . IT IS APPROPRIATE THEREFORE TO DEAL WITH THESE TWO GROUPS OF QUESTIONS IN TURN .

QUESTIONS 1 , 3 AND 6

5 THE ISSUE RAISED IN THE FIRST QUESTION IS REALLY WHETHER THE EXPRESSION ' ' ANY PERSON WHO IS COMPULSORILY INSURED ' ' WHICH IS CONTAINED IN THE DEFINITION OF THE TERM ' ' WORKER ' ' IN ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71 - A DEFINITION WHICH ALSO APPLIES IN THE CONTEXT OF REGULATION NO 574/72 - PRESUPPOSES THE COMPULSORY PAYMENT OF CONTRIBUTIONS AT THE TIME WHEN THE CONTINGENCY COVERED BY THE INSURANCE OCCURS OR WHETHER IT SUFFICES THAT , UNDER THE LEGISLATION IN QUESTION , THE PERSON SHOULD STILL BE INSURED AT THE TIME OF THE CONTINGENCY BY VIRTUE OF CONTRIBUTIONS PAID COMPULSORILY AS AN EMPLOYED PERSON AT AN EARLIER PERIOD . THIS PROBLEM IS NO DIFFERENT IF THERE IS ALSO TAKEN INTO CONSIDERATION PARAGRAPH ( 1 ) OF POINT I OF ANNEX V TO REGULATION NO 1408/71 WHICH , WITH REFERENCE TO THE PROVISION CITED ABOVE AND UNITED KINGDOM LEGISLATION , REGARDS AS WORKERS ' ' ALL PERSONS REQUIRED TO PAY CONTRIBUTIONS AS EMPLOYED WORKERS ' ' . IN FACT , THE COURT HAS ALREADY DECIDED IN ITS JUDGMENT OF 29 SEPTEMBER 1976 IN CASE 17/76 BRACK V INSURANCE OFFICER ( 1976 ) ECR 1429 AT P . 1449 THAT , FAR FROM RESTRICTING THE DEFINITION OF THE TERM ' ' WORKER ' ' AS IT EMERGES FROM ARTICLE 1 ( A ) OF THE REGULATION , THE PROVISION IN ANNEX V IS SOLELY CONCERNED TO CLARIFY THE SCOPE OF ARTICLE 1 ( A ) ( II ) VIS-A-VIS BRITISH LEGISLATION SO THAT PERSONS COVERED BY THE DEFINITION IN THE REGULATION MAY BE IDENTIFIED AS SUCH BY VIRTUE OF THE MANNER IN WHICH THE BRITISH SYSTEM IS ADMINISTERED OR FINANCED .

6 AS THE AFORMENTIONED JUDGMENT OF 29 SEPTEMBER 1976 ALSO STRESSED , IT FOLLOWS FROM CERTAIN PROVISIONS OF REGULATION NO 1408/71 THAT IT 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 . IT WOULD BE CONTRARY TO THE SPIRIT OF THOSE PROVISIONS AND TO ONE OF THE ESSENTIAL OBJECTIVES OF THE REGULATION , WHICH IS TO GUARANTEE TO WORKERS WHO MOVE WITHIN THE COMMUNITY THEIR ACCRUED RIGHTS AND ADVANTAGES , TO EXCLUDE FROM THE SCOPE OF THE REGULATION - BY GIVING A RESTRICTIVE INTERPRET- ATION TO THE DEFINITION OF THE TERM ' ' WORKER ' ' - ANY OTHER CASE WHERE , UNDER THE RELEVANT LEGISLATION , THE INSURANCE CONTINUES TO COVER THE INSURED AGAINST RISKS BUT THE INSURED IS NO LONGER BOUND TO PAY CONTRIBUTIONS .

7 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT A PERSON WHO IS ENTITLED UNDER THE LEGISLATION OF A MEMBER STATE TO BENEFITS COVERED BY REGULATION NO 1408/71 BY VIRTUE OF CONTRIBUTIONS PREVIOUSLY PAID COMPULSORILY DOES NOT LOSE HIS STATUS AS A ' ' WORKER ' ' WITHIN THE MEANING OF REGULATIONS NOS 1408/71 AND 574/72 BY REASON ONLY OF THE FACT THAT AT THE TIME WHEN THE CONTINGENCY OCCURRED HE WAS NO LONGER PAYING CONTRIBUTIONS AND WAS NOT BOUND TO DO SO .

8 THE EXPRESSION ' ' LEGISLATION ' ' , THE INTERPRETATION OF WHICH IS CALLED FOR BY THE THIRD QUESTION , IS TO BE FOUND IN A GREAT NUMBER OF PROVISIONS IN THE TWO REGULATIONS . IT IS INCLUDED AMONG THE DEFINITIONS CONTAINED IN ARTICLE 1 OF REGULATION NO 1408/71 FOR THE PURPOSE OF THE APPLICATION OF THE REGULATION . EVEN THOUGH THE PROBLEM OF INTERPRETATION RAISED BY THE QUESTION DOES NOT FIND AN EXPRESS ANSWER IN THAT DEFINITION , THE VERY EXISTENCE OF SUCH A GENERAL PROVISION IMPLIES THAT THE ANSWER MUST , SO FAR AS POSSIBLE , BE BASED UPON A UNIFORM INTERPRETATION . IN ITS JUDGMENT OF 7 NOVEMBER 1973 IN CASE 51/73 BESTUUR DER SOCIALE VERZEKERINGSBANK V SMIEJA ( 1973 ) ECR 1213 THE COURT CONSTRUED THAT CONCEPT , AS IT OCCURS IN ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 , AS EMBRACING THE PROVISIONS OF COMMUNITY LAW RELEVANT TO THAT PARAGRAPH . THAT CONCLUSION WAS BASED , INTER ALIA , ON THE CONSIDERATION THAT THE RIGHTS UNDER DISCUSSION OFTEN DERIVE NOT FROM NATIONAL LEGISLATION ALONE BUT FROM THAT LEGISLATION COMBINED WITH COMMUNITY RULES . THAT CONSIDERATION IS EQUALLY APPLICABLE TO THIS CASE . INDEED , THE NEED TO PROVIDE FOR A RESTRICTIVE RULE SUCH AS THAT IN ARTICLE 8 OF REGULATION NO 574/72 IS EXPLAINED PRECISELY BY THE EXTENSION OF THE RIGHTS OF THE PERSON CONCERNED WHICH RESULTS FROM OTHER PROVISIONS OF THE TWO REGULATIONS .

9 THE ANSWER TO THE THIRD QUESTION SHOULD THEREFORE BE THAT THE EXPRESSION ' ' THE LEGISLATIONS OF TWO OR MORE MEMBER STATES ' ' , WHICH OCCURS IN ARTICLE 8 OF REGULATION NO 574/72 , MUST BE UNDERSTOOD AS ALSO INCLUDING THE PROVISIONS OF COMMUNITY REGULATIONS .

10 THE SIXTH QUESTION ASKS , IN SUBSTANCE , WHETHER THE DUTY SET FORTH IN THE SECOND SENTENCE OF ARTICLE 86 OF REGULATION NO 1408/71 , WHICH REQUIRES AN AUTHORITY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE COMPETENT AUTHORITY IS SITUATED TO FORWARD TO THE LATTER CLAIMS LODGED WITH THE FORMER , EXISTS EVEN WHERE THE CLAIM IS LODGED AFTER THE EXPIRY OF THE PERIOD PROVIDED FOR BY THE LEGISLATION OF THE COMPETENT AUTHORITY .

11 THIS QUESTION OF INTERPRETATION ARISES FROM THE FACT THAT THE SECOND SENTENCE OF ARTICLE 86 MAKES REFERENCE TO THE FIRST SENTENCE OF THAT ARTICLE AND THAT SENTENCE IS CONCERNED ONLY WITH CASES IN WHICH THE CLAIM HAS BEEN SUBMITTED WITHIN THE SAME PERIOD AS THAT PROVIDED FOR BY THE LEGISLATION OF THE COMPETENT AUTHORITY . HOWEVER , ARTICLE 86 DOES NOT CONFER ON THE AUTHORITY RECEIVING THE CLAIM THE POWER TO ADJUDICATE UPON ITS ADMISSIBILITY UNDER THE LEGISLATION OF THE COMPETENT AUTHORITY . IT IS FOR THE LATTER TO DECIDE WHETHER THE CLAIM HAS BEEN SUBMITTED IN TIME , REGARD ALWAYS BEING HAD TO THE RULE SET OUT IN THE FIRST SENTENCE OF ARTICLE 86 . CONSEQUENTLY , THE AUTHORITY WHICH HAS RECEIVED THE CLAIM MUST FORWARD IT TO THE COMPETENT AUTHORITY IN ACCORDANCE WITH THE PROVISION CONTAINED IN THE SECOND SENTENCE OF THE SAID ARTICLE .

12 THE ANSWER TO THE SIXTH QUESTION SHOULD THEREFORE BE THAT ARTICLE 86 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT WHERE A CLAIM , DECLARATION OR APPEAL IS SUBMITTED TO AN AUTHORITY , INSTITUTION OR COURT OF A MEMBER STATE OTHER THAN THAT UNDER THE LEGISLATION OF WHICH THE BENEFIT MUST BE AWARDED , THAT AUTHORITY , INSTITUTION OR COURT HAS NO POWER TO DETERMINE THE ADMISSIBILITY OF THE CLAIM , DECLARATION OR APPEAL IN QUESTION . THAT POWER BELONGS EXCLUSIVELY TO THE AUTHORITY , INSTITUTION OR COURT OF THE MEMBER STATE UNDER THE LEGISLATION OF WHICH THE BENEFITS MUST BE AWARDED AND TO WHICH THE CLAIM , DECLARATION OR APPEAL MUST IN ALL CIRCUMSTANCES BE FORWARDED .

QUESTIONS 2 , 4 AND 5

13 THE SECOND AND FOURTH QUESTIONS SEEK TO HAVE SPECIFIED THE SCOPE OF ARTICLE 8 OF REGULATION NO 574/72 AS REGARDS MATERNITY BENEFIT OF THE KIND AT ISSUE IN THIS CASE AND THE FIFTH QUESTION IS CONCERNED WITH THE VALIDITY OF THAT ARTICLE AS IT IS INTERPRETED BY THE COURT IN ANSWER TO THE OTHER TWO QUESTIONS .

14 ARTICLE 8 OF REGULATION NO 574/72 IS WORDED AS FOLLOWS :

' ' IF A WORKER OR A MEMBER OF HIS FAMILY IS ENTITLED TO CLAIM MATERNITY BENEFITS UNDER THE LEGISLATIONS OF TWO OR MORE MEMBER STATES , THOSE BENEFITS SHALL BE GRANTED EXCLUSIVELY UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE CONFINEMENT TOOK PLACE OR , IF THE CONFINEMENT DID NOT TAKE PLACE IN THE TERRITORY OF ONE OF THESE MEMBER STATES , EXCLUSIVELY UNDER THE LEGISLATION OF THE MEMBER STATE TO WHICH THE WORKER WAS LAST SUBJECT ' ' .

15 THAT PROVISION CONSTITUTES A RULE FOR THE APPLICATION OF ARTICLE 12 OF REGULATION NO 1408/71 . THAT ARTICLE , WHICH IS ENTITLED ' ' PREVENTION OF OVERLAPPING OF BENEFITS ' ' PROVIDES , INTER ALIA , IN PARAGRAPH ( 1 ) THAT THE REGULATION ' ' CAN NEITHER CONFER NOR MAINTAIN THE RIGHT TO SEVERAL BENEFITS OF THE SAME KIND FOR ONE AND THE SAME PERIOD OF COMPULSORY INSURANCE ' ' . EVEN THOUGH , ACCORDING TO ITS WORDING , ARTICLE 8 OF REGULATION NO 574/72 IS A RULE CONCERNING THE APPLICABLE LAW , IT ALSO COMES , AS A CONSEQUENCE , WITHIN THE FRAMEWORK OF THE PROVISIONS WHICH , IN ACCORDANCE WITH THE SEVENTH RECITAL IN THE PREAMBLE TO REGULATION NO 1408/71 , SEEK TO PREVENT UNJUSTIFIED OVERLAPPING OF BENEFITS .

16 THE BENEFITS AT ISSUE IN THE MAIN PROCEEDINGS ARE ALLOWANCES GRANTED FOR A CERTAIN PERIOD BOTH BEFORE AND AFTER THE CONFINEMENT . EVEN THOUGH THE DURATION OF THAT PERIOD AND THE AMOUNT GRANTED PER WEEK OR PER DAY DIFFER FROM ONE MEMBER STATE TO ANOTHER , THE GRANT OF THE BENEFITS RESTS ON THE SAME CONCEPT OF THE WELFARE OF THE MOTHER AND CHILD . THE MOTHER MUST ENJOY A PERIOD OF REST OR LEAVE FROM WORK AND THE ALLOWANCES PAID SERVE TO MAKE GOOD , AT LEAST PARTIALLY , ANY WAGE OR SALARY WHICH THE MOTHER MIGHT HAVE DRAWN DURING THAT PERIOD .

17 IT IS IN THE LIGHT OF THOSE AIMS THAT THE QUESTIONS RELATING TO THE SCOPE OF ARTICLE 8 MUST BE ANSWERED . OVERLAPPING OF BENEFITS OCCURS ONLY IN SO FAR AS A CLAIM FOR BENEFITS MAY ACTUALLY BE SATISFIED BY THE APPLICATION OF THE LEGISLATION OF TWO OR MORE MEMBER STATES . AS THE COMMISSION HAS PROPERLY STRESSED , GIVING ARTICLE 8 A WIDER APPLICATION MIGHT INDEED , IN CASES SUCH AS THE PRESENT , RESULT IN THE PERSON CONCERNED RECEIVING NO ALLOWANCE AT ALL . IT WOULD BE CONTRARY TO THE OBJECTIVES OF THE REGULATIONS WERE A RULE AGAINST OVERLAPPING OF BENEFITS TO PRODUCE SUCH A RESULT . THE SAME CONSIDERATIONS AND , ESPECIALLY , THE WORDING OF THE SAID ARTICLE 12 OF REGULATION NO 1408/71 FAVOUR ALTERNATIVE ( A ) OF THE FOURTH QUESTION , WHICH CONCERNS THE PROBLEM RAISED BY THE DIFFERENT PERIODS OF BENEFIT PROVIDED FOR BY THE LEGISLATION OF THE VARIOUS MEMBER STATES . IT IS TRUE THAT THAT ALTERNATIVE MIGHT HAVE THE RESULT THAT A PERSON WHO HAS EXHAUSTED THE MAXIMUM ENTITLEMENT AWARDED BY THE STATE OF THE CONFINEMENT MAY BENEFIT FOR AN ADDITIONAL PERIOD FROM BENEFITS AWARDED BY OTHER LEGISLATION TO WHICH SHE HAS BEEN SUBJECT AND WHICH , FOR REASONS OF THE WELFARE OF THE MOTHER AND CHILD , ALLOWS A LONGER PERIOD OF LEAVE FROM WORK . HOWEVER , SUCH A RESULT MAY NOT BE DESCRIBED AS AN ' ' UNJUSTIFIED OVERLAPPING ' ' AND , IN THE ABSENCE OF AN EXPRESS PROVISION TO THAT EFFECT , IT MAY HARDLY BE PRESUMED THAT IT IS EXCLUDED BY ARTICLE 8 OF REGULATION NO 574/72 .

18 THE ANSWER TO THE SECOND AND FOURTH QUESTIONS SHOULD THEREFORE BE THAT ARTICLE 8 OF REGULATION NO 574/72 MUST BE INTERPRETED AS APPLYING ONLY TO THE EXTENT TO WHICH A CLAIM BY THE PERSON CONCERNED MAY IN FACT BE SATISFIED BY THE APPLICATION OF THE LEGISLATION OF TWO OR MORE MEMBER STATES AND ONLY IN REGARD TO THE PERIOD FOR WHICH THE CLAIMANT MAY CLAIM BENEFITS UNDER THE LEGISLATION SPECIFIED BY THAT ARTICLE .

19 THE DOUBT CONCERNING THE VALIDITY OF ARTICLE 8 WHICH IS EXPRESSED IN THE FIFTH QUESTION ARISES ONLY IN THE EVENT OF THAT ARTICLE ' S HAVING THE EFFECT OF EXCLUDING THE CLAIMANT FROM RECEIVING BENEFITS IN A MEMBER STATE OTHER THAN THAT OF THE CONFINEMENT . THAT QUESTION IS EXPLAINED BY THE DOUBTS CONCERNING THE INTERPRETATION OF ARTICLE 8 WHICH THE NATIONAL INSURANCE COMMISSIONER EXPRESSED IN QUESTIONS 2 AND 4 . IN THAT RESPECT , HOWEVER , HAVING REGARD TO THE SOLUTIONS CONTAINED IN THE ANSWERS GIVEN THOSE QUESTIONS , THE EVENTUALITY CONTEMPLATED WOULD ARISE ONLY WHERE THE OTHER PROVISIONS OF REGULATION NO 1408/71 WOULD HAVE LED , IN THE ABSENCE OF RECOURSE TO ARTICLE 12 OF THAT REGULATION AND TO ARTICLE 8 OF REGULATION NO 574/72 , TO CLEARLY UNJUSTIFIED OVERLAPPING OF BENEFITS .

20 IT MAY THEREFORE BE STATED IN ANSWER TO THAT QUESTION THAT CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 8 OF REGULATION NO 574/72 .

Decision on costs

THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL INSURANCE COMMISSIONER , THE DECISION ON COSTS IS A MATTER FOR HIM .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE NATIONAL INSURANCE COMMISSIONER BY ORDER OF 11 SEPTEMBER 1979 , HEREBY RULES :

1 . 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 AND REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT A PERSON WHO IS ENTITLED UNDER THE LEGISLATION OF A MEMBER STATE TO BENEFITS COVERED BY REGULATION NO 1408/71 BY VIRTUE OF CONTRIBUTIONS PREVIOUSLY PAID COMPULSORILY DOES NOT LOSE HIS STATUS AS A ' ' WORKER ' ' WITHIN THE MEANING OF THE SAID TWO REGULATIONS BY REASON ONLY OF THE FACT THAT AT THE TIME WHEN THE CONTINGENCY OCCURRED HE WAS NO LONGER PAYING CONTRIBUTIONS AND WAS NOT BOUND TO DO SO .

2 . THE PHRASE ' ' LEGISLATIONS OF TWO OR MORE MEMBER STATES ' ' , WHICH OCCURS IN ARTICLE 8 OF REGULATION NO 574/72 , MUST BE UNDERSTOOD AS ALSO INCLUDING THE PROVISIONS OF COMMUNITY REGULATIONS .

3 . ARTICLE 86 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT WHERE A CLAIM , DECLARATION OR APPEAL IS SUBMITTED TO AN AUTHORITY , INSTITUTION OR COURT OF A MEMBER STATE OTHER THAN THAT UNDER THE LEGISLATION OF WHICH THE BENEFIT MUST BE AWARDED , THAT AUTHORITY , INSTITUTION OR COURT HAS NO POWER TO DETERMINE THE ADMISSIBILITY OF THE CLAIM , DECLARATION OR APPEAL IN QUESTION . THAT POWER BELONGS EXCLUSIVELY TO THE AUTHORITY , INSTITUTION OR COURT OF THE MEMBER STATE UNDER THE LEGISLATION OF WHICH THE BENEFIT MUST BE AWARDED AND TO WHICH THE CLAIM , DECLARATION OR APPEAL MUST IN ALL CIRCUMSTANCES BE FORWARDED .

4 . ARTICLE 8 OF REGULATION NO 574/72 MUST BE INTERPRETED AS APPLYING ONLY TO THE EXTENT TO WHICH A CLAIM BY THE PERSON CONCERNED MAY IN FACT BE SATISFIED BY THE APPLICATION OF THE LEGISLATION OF TWO OR MORE MEMBER STATES AND ONLY IN REGARD TO THE PERIOD FOR WHICH THE CLAIMANT MAY CLAIM BENEFITS UNDER THE LEGISLATION SPECIFIED BY THAT ARTICLE .

5 . CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 8 OF REGULATION NO 574/72 .