IN CASE 109/76
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN BEROEP , AMSTERDAM , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
MRS M . BLOTTNER , BERLIN
AND
BESTUUR DER NIEUWE ALGEMENE BEDRIJFSVERENIGING , AMSTERDAM
Subject of the case
ON THE INTERPRETATION OF ARTICLES 40 , 45 AND 46 OF REGULATION NO 1408/71 AND OF ANNEX V THERETO ,
Grounds
1 BY LETTER OF 19 NOVEMBER 1976 WHICH ARRIVED AT THE COURT REGISTRY ON 22 NOVEMBER 1976 THE RAAD VAN BEROEP , AMSTERDAM , SUBMITTED , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A NUMBER OF PRELIMINARY QUESTIONS ON THE INTERPRETATION OF ARTICLES 40 , 45 AND 46 AND OF ANNEX V TO REGULATION ( EEC ) 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS HAVE BEEN SUBMITTED WITHIN THE FRAMEWORK OF A DISPUTE RELATING TO THE REFUSAL BY THE COMPETENT NETHERLANDS INSTITUTION TO PAY AN INVALIDITY PENSION TO A GERMAN NATIONAL WHO PURSUED ACTIVITIES AS AN EMPLOYED PERSON IN THE NETHERLANDS FROM 1928 TO 1940 .
3 THE PERSON CONCERNED RETURNED TO GERMANY IN 1940 WHERE SHE WORKED UNTIL 1946 AND THEREAFTER HAD NO FURTHER GAINFUL OCCUPATION .
4 IN 1973 SHE SUFFERED AN ACCIDENT WHICH RENDERED HER UNFIT FOR WORK AND THE BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE ( THE FEDERAL INSURANCE OFFICE FOR EMPLOYED PERSONS ) GRANTED HER A PENSION FROM 1 JANUARY 1974 .
5 THE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( NEW GENERAL TRADE ASSOCIATION ) RECOGNIZED THAT THE PERSON CONCERNED WAS IN PRINCIPLE ENTITLED TO CLAIM BENEFITS UNDER THE NETHERLANDS LEGISLATION , PURSUANT TO ARTICLE 45 ( 3 ) OF REGULATION NO 1408/71 , BUT REFUSED TO PAY THEM ON THE GROUNDS THAT , SINCE SHE WAS NOT IN EMPLOYMENT AT THE TIME OF THE ACCIDENT , THE PERSON CONCERNED DID NOT FULFIL THE MATERIAL CONDITION AS TO INSURANCE PRESCRIBED BY THE LAW ON INSURANCE AGAINST INCAPACITY FOR WORK ( WET OP DE ARBEIDSON- GESCHIKTHEIDSVERZEKERING , HEREINAFTER REFERRED TO AS ' THE WAO ' ) IN ORDER FOR HER TO ACQUIRE A RIGHT TO BENEFIT IN THE NETHERLANDS AND THAT FURTHERMORE HER DEGREE OF INCAPACITY TO CARRY OUT HER USUAL WORK ( HOUSEHOLD DUTIES ) WAS LESS THAN THE MINIMUM RATE REQUIRED BY THE WAO .
6 THE FIRST QUESTION ASKS WHETHER , ' FOR THE ACQUISITION OF A RIGHT TO BENEFITS ON THE BASIS OF ARTICLE 40 OF REGULATION ( EEC ) NO 1408/71 , PAYABLE BY AN INSTITUTION OF A MEMBER STATE REFERRED TO AT THE BEGINNING OF ARTICLE 45 ( 3 ) OF THAT REGULATION - HAVING REGARD TO THE BACKGROUND TO THE ADOPTION OF THE LATTER PROVISION - IT IS SUFFICIENT THAT A WORKER WHO IS SUBJECT TO THE LEGISLATION OF ANOTHER MEMBER STATE AT