CELEX: C1997/357/30
Language: en
Date: 1997-11-22 00:00:00
Title: Action brought on 26 September 1997 by the Commission of the European Communities against the Italian Republic (Case C-336/97)

22 . 11 . 97             EN                  Official Journal of the European Communities                                  C 357/ 17
a preliminary ruling in the case of Rijksdienst voor Pensi­                  nen and the case-law of the Court of Justice, is it
oenen against Wim Westenborg in the following terms:                        compatible with Community law, more particularly
                                                                            Articles 5 , 48 and 51 of the Treaty, to take the view
                                                                             that the national courts may not disapply express,
                                                                             binding provisions of national law in order to
1 . Requests the Court of Justice of the European                            eliminate the adverse effects :
     Communities to give a preliminary ruling on
     the following questions, on the basis of the
     aforementioned provisions and any other provisions                     — of the application of the rUle of national law to
     which it may consider to apply in this case:                                migrant workers who have exercised their right to
                                                                                 free movement,
     Is it compatible with Community law — in particular                    — of the lack of coordination between social security
                                                                                 schemes of different Member States ?
     Articles 5, 48 and 51 of the Treaty of 25 March 1957
     establishing the European Economic Community and,
     more specifically, the principles of free movement of
     workers and cooperation in good faith between the
     competent authorities — to take the view that the
     relevant Belgian legislation may not be disapplied by a
     national court which concludes that an applicable
                                                                        Action brought on 26 September 1997 by the Commission
     national provision requiring a migrant worker's
     pension to be reduced — such as Article 3 ( 1 ) of the             of the European Communities against the Italian Republic
     Belgian Law of 20 July 1990 which requires a lower                                        ( Case C-336/97 )
     pension to be awarded ( at the 60% rate for a single
                                                                                                 ( 97/C 357/30 )
     person and not the 75 % household rate ) if the
     migrant worker's spouse receives a pension or benefit
     equivalent thereto under the legislation of a foreign
     country — and considers that it is impossible to                   An action against the Italian Republic was brought before
     interpret that national rule in such a way as to                   the Court of Justice on 26 September 1997 by the
     eliminate the unforeseen adverse effects of the lack of            Commission of the European Communities, represented
     coordination between social security schemes in the                by Paolo Stancanelli, of its Legal Service, assisted by
     interests of free movement of workers or holds that                Claudio Tesauro, of the Naples Bar, acting as Agents, with
     the application of that rule in the case in point                  an address for service in Luxembourg at the office of
     constitutes an obstacle to free movement of workers ?              Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.
                                                                        The applicant claims that the Court should:
2 . Requests the Court of Justice of the European
     Communities to give an interpretation of the scope of
                                                                        — declare that :
     its judgment in Case C-165/91 Van Munster v. Rijks­
     dienst voor Pensioenen in the light of those rules of
     European law:                                                           — by not ensuring that emergency plans are drawn
                                                                                 up for action outside establishments whose
                                                                                 industrial activity has been notified in accordance
      ( a ) Does the reasoning set out in paragraph 21 to 31                     with Article 5 of Directive 82/501 /EEC ('), in
            of that judgment in respect of question 2 relate to                  breach of the third indent of Article 7 ( 1 ) of that
            what may be described as 'unforeseen adverse                         Directive ,
            effects of the lack of coordination between social
            security schemes'?                                               — and by not organizing inspections or other
                                                                                 measures of control proper to the type of activity
                                                                                 concerned, in breach of Article 7 ( 2 ) of Directive
      ( b ) In the light of paragraphs 32, 33 and 34 of that                      82/501/EEC,
            judgment, is point 2 of the operative part of that
            judgment to be interpreted as meaning that, where
            it is impossible to interpret an applicable provision       — the Italian Republic has failed to fulfil its obligations
            of national law in such a way as to eliminate the                 under the EC Treaty,
            adverse effects of its application in a specific
            situation on free movement of workers, the
            national court must apply that rule in full, or that        — order the Italian Republic to pay the costs.
            the national court must disapply that rule of
            national law ?
                                                                        Pleas in law and main arguments adduced in support:
 3 . In the light of point 2 of the operative part of the               Article 7 ( 1 ) of the Directive provides that the Member
      judgment in Van Munster v. Rijksdienst voor Pensioe­               States are to set up or appoint the competent authorities
 ---pagebreak--- C 357/18                EN               Official Journal of the European Communities                                         22 . 11 . 97
who are to be responsible inter alia for ensuring that              Reference for a preliminary ruling from the College van
emergency plans are drawn up for action outside                     Beroep Studiefinanciering by judgment of that court of
establishments whose industrial activity has been notified.         26 September 1997 in the case of C. P. M Meeusen and
The competent authorities are also required, pursuant to                    Hoofddirektie van de Informatie Beheer Groep
Article 7 ( 2 ), to organize, in accordance with national                                     Case C-337/97 )
regulations, inspections or other measures of control
proper to the activity in question. It is clear that for that                                  ( 97/C 357/31 )
provision to be properly implemented, the Member States
must not only designate the competent authorities but also
ensure that emergency action plans are duly drawn up and            Reference has been made to the Court of Justice of the
that the potential effectiveness of such plans is checked, in       European Communities by a judgment of the College van
the terms laid down by the Directive .                              Beroep Studiefinanciering ( Study Finance Tribunal ) of
                                                                    26 September 1997, which was received at the Court
                                                                    Registry on 29 September 1997, for a preliminary ruling
                                                                    in the case of C. P. M. Meeusen and Hoofddirektie van de
Presidential Decree No 175/88 , as originally drafted,              Informatie Beheer Groep ( Governing Board of the
provided that prefects were to draw up the emergency                Information Management Group ) on the following
plans for action outside the establishments subject to              questions:
notification pursuant to Article 4 of that decree, on the
basis of the information supplied by manufacturers and an           IA. Does a situation such as that in the present case, in
investigation undertaken by the ministry for that purpose .               which the plaintiff's mother is employed by the
It also required inspections to be carried out by officials               limited company of which her husband is the director
appointed by the Ministry of the Environment and the                      and sole shareholder, preclude her from being
Ministry of Health from staff of the competent public                     regarded as a migrant worker within the meaning of
administrations or bodies .
                                                                          Article 48 of the EC Treaty and of Regulation ( EEC )
                                                                          No 1612/68 (')?
The Commission considered that although such rules                        If question 1A is answered in the negative :
might appear formally capable of satisfying the
requirements of Article 7 of the Directive, they proved in          IB. In the Bernini judgment the Court held that study
practice to be entirely inadequate, since, after they had                 finance awarded by a Member State to children of
been in force for some years, very few emergency action                   workers constitutes a social advantage to a migrant
plans had actually been drawn up and inspection and                       worker, as provided for in Article 7 ( 2 ) of Regulation
control activities were inadequate .                                      ( EEC ) No 1612/68 , where the worker continues to
                                                                          support the child. In such a case the child may rely
                                                                          on Article 7 ( 2 ) in order to obtain study finance
                                                                          under the same conditions as are applicable to
The successive legislative amendments notified by the                    children of national workers, and in particular
Italian authorities are not capable of remedying the                      without any further requirement as to place of
situation and thereby bringing the infringements to an                    residence . Does this rule equally apply if the migrant
end .
                                                                          worker must be regarded as a frontier worker ?
                                                                    IC . Does the rule of law in Bernini, as stated in
The Commission adds that the later amendments made to                     question IB above, also apply if the child of a
the legislation implementing the Directive, by the adoption               migrant worker, as in the present case, has never
of Law No 137/97, were not such that the infringements                    lived in the Netherlands ?
complained of were brought to an end .
                                                                    2.    Must Article 52 of the EC Treaty be interpreted in
                                                                          such a way that the safeguard provided for under the
                                                                          rule laid down in Bernini, as mentioned above in
The Commission considers that the requirements
concerning preparation of emergency plans for action                      question IB, also applies to the child of a national of
outside the establishments in question and the                            a Member State who pursues activities in another
organization of inspections or other measures of control of              Member State as a self-employed person ?
industrial activities have not yet been fully met. The
Commission is therefore of the opinion that the Italian                  To what extent is it also decisive in that connection
Republic has failed to fulfil its obligations in that respect             that the child has never been resident in the
under Community law.                                                      Netherlands, and that the parent is not resident in the
                                                                         country in which the activity as a self-employed
                                                                          person is pursued ?
(') OJ L 230, 5 . 8 . 1982, p . 1 .
                                                                    (') Official Journal, English Special Edition 1968, II, p. 475 .