CELEX: 61964CC0031
Language: en
Date: 1964-12-17
Title: Joined opinion of Mr Advocate General Gand delivered on 17 December 1964. # "De Sociale Voorzorg" Mutual Insurance Fund v W.H. Bertholet. # Reference for a preliminary ruling: Arrondissementsrechtbank Maastricht - Netherlands. # Case 31-64. # Betriebskrankenkasse der Heseper Torfwerk GmbH v Egbertina van Dijk. # Reference for a preliminary ruling: Arrondissementsrechtbank Assen - Netherlands. # Case 33-64.

OPINION OF MR ADVOCATE-GENERAL GAND
   DELIVERED ON 17 DECEMBER 1964 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   Despite the fact that the two cases 31/64 and 33/64 have not been joined, I ask leave to deliver an opinion common to both. Both cases were referred by Netherlands courts pursuant to Article 177 of the Treaty of Rome, and both cases raise as a main issue the question of the meaning and scope of Article 52 of Regulation No 3 of the Council concerning social security for migrant workers, as regards the right of recourse of the institution liable for payment of benefit as a result of injuries against the third party liable for those injuries in the territory of the State where they occurred. It is this most delicate problem which I will first consider before examining the second question, peculiar to each case, put to you by the Netherlands court.
   Article 52, which is part of Head IV, ‘Miscellaneous Provisions’, of the Regulation, reads as follows:
   ‘If a person who is in receipt of benefit under the legislation of one Member State, in respect of an injury sustained in the territory of another State, is entitled to claim compensation for that injury from a third party in the latter State's territory, any claims by the institution liable for payment of benefit against such third party shall be governed by the following rules:
   
            (a)
         
         
            where the said institution is, under the legislation applicable to it, substituted for the beneficiary in his claims against the third party, such substitution shall be recognized by each Member State;
         
      
            (b)
         
         
            where the said institution has a direct claim against the third party, such claim shall be recognized by each Member State.
         
      Implementation of these provisions shall be the subject of bilateral agreements.’
   The question before you is the following: Is Article 52 applicable as from the entry into force of Regulation No 3 — that is to say, 1 January 1959 — or only after the bilateral agreements referred to above have been concluded?
   In respect of its content, this Article appears like a rule of conflict of laws; it lays down which legislation shall be used to determine the existence or otherwise, for the advantage of the institution liable for social security payments, of a right of subrogation to the claims for compensation that the person who has received benefits may raise against a third party — or of a direct claim against that third party. And the Article refers to the law of the State of the institution liable for payment.
   In its drafting this provision presents the peculiarity of combining Community law and conventional international law. Application of the Regulation does not lead to the making of rules of national law by each Member State but to the conclusion of bilateral agreements of the classical type. The reason for this peculiarity is known. Regulation No 3 originates from the European Convention on Social Security for Migrant Workers, which convention was prepared with the assistance of the International Labour Office and signed before the entry into force of the Treaty of Rome. The disputed provision — a completely normal and customary one in multilateral conventions between States — has been adopted as such by the Council in Regulation No 3, where it is even more surprising.
   In order to support the argument that the rule laid down by the first paragraph of the Article is applicable even before a bilateral agreement, as referred to in the second paragraph, is concluded, one may submit in the first place arguments of expediency — this term being understood in its highest sense. It is not desirable that the entry into force of provisions of Community law — which provisions are directly enforceable in all Member States by virtue of Article 189 — should depend, if not on the good will of those Member States, at least on the conclusion of agreements between them. It is not desirable either that these same provisions should enter into force on different dates in different territories of the Community.
   This view is also supported by arguments of a technical legal nature. In default of provisions expressly fixing another date for Article 52, this Article — as well as the entire Regulation — came into force in principle on 1 January 1959. Must one now assume that the last paragraph alone would suffice to delay this entry into force until the dates on which the various bilateral agreements have been concluded between the States?
   In the absence of precedents in Community law, it may here be pointed out that the same problem arises in national laws when the legislature instructs the executive to issue measures implementing the rules laid down by it. The predominant tendency is that the executive effect of the law is not any the less immediate, unless the legislature itself has made its enforcement subject to executive measures. Such seems to be the rule in Belgian and Netherlands law. Such is certainly the case in French law, which allows for an exception to the rule of immediate enforcement only in the event of the execution of the law being impossible in the absence of an implementing regulation. In other words, it is not for the authority responsible for the enforcement of a rule to delay or paralyse such enforcement by its inaction.
   If one applies this reasoning to the case in question, it should be considered whether the enforcement of the rule outlined at the beginning of Article 52 necessarily presupposes implementing measures taken in conventions. For Article 52 does not stop at expressing a principle; it lays down a rule: ‘any claims by the institution liable for payment of benefit … shall be governed by the following rules’. And the Regulation continues: ‘where the said institution is, under the legislation applicable to it, substituted …, such substitution shall be recognized by each Member State’ Therefore Article 52 allows expressly for a clear, complete and integral reference to the law of the social security institution liable for payment, which in practice allows the application of it without the necessity of having recourse to bilateral agreements.
   It should be remarked here that if I have reasoned from the French version of the Regulation, it is because the European convention on which it is based was prepared and drawn up in French by the International Labour Office, and the versions in the other languages are translations. Moreover, there does not seem to be much difference between the various versions and the French text (except, perhaps, for the German).
   That Article 52 is applicable in fact without being augmented by a bilateral agreement is demonstrated paradoxically by the agreements which have been concluded up to now in respect of it. Three agreements have been made by Luxembourg with Belgium, France and the Federal Republic respectively. The first two have not added anything to the wording of Article 52 as I have quoted it; better still, the third, which was drawn up in the form of a final protocol to the convention on social security for frontier workers, is worded as follows:
   ‘The two contracting parties have agreed that the first and second sentences of Article 52 of Regulation No 3 … shall be fully applicable without its being necessary to conclude the agreement provided for by the third sentence.’
   One may thus conclude at least that, even if these four States considered that the application of Article 52 depended in law on the conclusion of bilateral agreements — by interpretation of the last sentence of the Article — such application was in fact possible in the absence of the bilateral agreements, since the agreements which they have concluded are empty of any content.
   According to this view, the disputed sentence would have as its sole purpose to require the Member States to lay down such measures as appear to them desirable to facilitate subrogation, should these measures appear necessary to them; but the provisions of this sentence would not result in delaying the operation of the rule mentioned above concerning subrogation, since this rule could operate independently of any agreement. Instead of ‘Implementation of these provisions shall be the subject of bilateral agreements’ one should read ‘The conditions of implementation shall be the subject …’.
   One can certainly object that this interpretation corrects the text; but the Commission has shown very clearly in its observations how, during the negotiation of the European Convention, the last sentence of Article 52 was introduced with a certain hesitancy, out of caution and perhaps even in error (because its insertion seems to have been required only for Article 51 and not for Article 52). On the other hand, if we were still concerned with an international convention, it would seem logical to give this clause the interpretation which gives the maximum safeguard to the will and freedom of action of the contracting parties, thus assuming that those parties have intended to make the applicability of the new rule dependent on the conclusion of bilateral agreements. Such reasoning is not appropriate since the provision has taken on the character of a Community rule.
   The question certainly raises much doubt, and it is difficult to find truly conclusive arguments, either in the wording itself or in intention of its authors. If I decide finally in favour of the interpretation which holds Article 52 to be effective immediately, it is for the reason I have given above and which is legally and politically expedient, that is, it is desirable that provisions of Community law should be applicable simultaneously throughout the entire Community and that they should not depend on the good will of the Member States.
   Therefore I suggest that you answer the first question in the affirmative.
   Second question.—If you follow me on this point, it is proper to examine the question relating to Case 31/64 which is submitted to you by the Arrondissementsrechtbank, Maastricht, in the action between ‘De Sociale Voorzorg’ Mutual Insurance Fund of Brussels and Mr Bertholet.
   The facts stated in the judgment are as follows: Mr de Ronchi, living at Eupen and working at the frontier post of Kessenich on Belgian territory, was the victim of a traffic accident at Kerkrade in the Netherlands in the course of a collision with a lorry belonging to Mr Bertholet. The court, having set aside the view that the person concerned can be regarded either as a migrant worker in the strict sense, or as a frontier worker, asked itself and has asked you the following question: ‘Must the first paragraph of Article 52 be regarded as applicable even in a case in which the residence of the worker and the place of his work are situated in the territory of the same Member State, while, geographically, these two places are so situated that the usual route taken by the worker between his residence and his place of work and back crosses the territory of another Member State, in the present instance the Netherlands?’
   In fact it is the problem or the scope or Regulation No 3 which is thus raised. According to Article 4, the provisions of this Regulation apply ‘to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States’, a very wide definition which is obviously much wider than that of a migrant worker in the strict sense. It is true on the contrary that according to its title the Regulation is concerned with social security for migrant workers, and that one of the preliminary recitals intended to explain the scope of the Regulation states that a system securing certain benefits ‘for migrant workers and their dependants’ constitutes an essential element in the establishment of the free movement of workers.
   It is nonetheless true that numerous provisions of the Regulation have a much wider scope. In this connexion I quote Article 10 which stipulates that pensions payable under the legislation of one or more Member States shall not suffer reduction by reason of the fact that the beneficiary is permanently resident in the territory of a Member State other than that in which the institution liable for payment is situated. Similarly, Article 22 (2) governs the case where the beneficiary of a pension payable under the legislation of one or more Member States is permanently resident in the territory of a Member State in which none of the institutions liable for the payment of his pension is situated. Finally, Article 40 entitles a wage-earner who is employed in the territory of one Member State and has children who are permanently resident in the territory of another Member State to family allowances in respect of such children according to the provisions of the legislation of the former State up to the amount of the allowance granted under the legislation of the latter State. In all these cases — and there are many others — one does not speak of migrant workers. Generally, the Regulation aims at limiting the difficulties resulting from the territorial effect of national legislation — difficulties which may even arise in respect of workers who do not leave the country in which the institution to which they are affiliated is situated and where they work.
   It has been maintained, it is true, that the competence of the Council was limited to migrant workers properly socalled and this assumption was based upon Article 51 of the Treaty. Reading this again:
   ‘The Council shall … adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants…’ The competence of the Council is thus defined by the objects aimed at: freedom of movement for workers in general, of whom migrant workers constitute only a special category.
   The Court, furthermore, appears to me already to have given a ruling on this point in Case 75/63 and to have given the field of application of the Regulation a wide interpretation, by reason of Article 19. This Article provides that a wage-earner or assimilated worker, affiliated to an institution in one Member State and permanently resident in the territory of the said State, shall receive benefits during temporary residence in the territory of another Member State, if his state of health necessitates immediate medical care. You have held this provision to be applicable ‘whatever may be the reason for the temporary residence abroad’ and, in that case, the person concerned, who was affiliated to an institution of a Member State, went to another State for the sole purpose of staying with relatives. She was a wageearner but certainly not a migrant worker.
   This wide interpretation must apply a fortiori where industrial accidents are concerned. One knows that in all countries of the Community the accident insurance required by law covers risks involved while travelling between residence and place of work. The principle is generally recognized even if legislation and case-law interpret the meaning of such an accident in a wider or narrower sense. Italian legislation, for example, does not contain any express provision in respect of such accidents, but a wide interpretation of the concept of an accident ‘in connexion with employment’ has resulted in Italy in extending the scope of professional risks even to accidents while travelling between residence and place of work as soon as there exists a causal nexus between the employment and the risk (European Conference on Social Security, Vol. 1, pp. 335-336).
   At the time of the accident in question, the wording of Article 29 of the Regulation covered in particular a case in which a worker was injured in an industrial accident in the territory of a Member State other than that of the State in which he was affiliated to an institution. Such a situation could arise either when the worker performed occasional work for his employer outside the country where his employer normally carried on business, or where the worker, to go from his home to his place of work, travelled across the territory of another Member State.
   It must therefore be accepted — and on this point I do not hesitate as I did with the preceding question — that Regulation No 3 concerns persons other than migrant workers properly so-called, and that the first paragraph of Article 52 applies even to an accident while travelling to or from work, such as the one described by the Maastricht Court.
   Consequently the second question put by that court must be answered affirmatively.
   The dispute pending before the Arrondissementsrechtbank, Assen, between the Betriebskrankenkasse der Heseper Torfwerk GmbH and Mrs Koster, which gave rise to the reference to you in Case 33/64, shows great similarity on some points to Case 31/64. Mr de Munnik, living in the Netherlands but working in the Federal Republic of Germany, whose status as a frontier worker is not disputed, sustained injuries in a traffic accident in the Netherlands on 8 July 1961. This accident which did not take place while he was on his way to or from work was thus not an accident sustained while travelling to or from work. The German insurance institution which has granted benefits in kind to Mr de Munnik and which has compensated him for inability to work brought an action against Mrs Koster whose employee was responsible for the accident, and — invoking the right of subrogation to the claim of the insured person to which it is entitled under German legislation — has requested the application of the first paragraph of Article 52 of Regulation No 3.
   It is in these circumstances that the Arrondissementsrechtbank of Assen puts two questions to you:
   
            —
         
         
            The first, which we have already encountered, deals with the applicability of Article 52 of the Regulation before the conclusion of bilateral agreements, it being mentioned that no agreements in this respect have been concluded between the Netherlands and the Federal Republic of Germany or between the Netherlands and Belgium.
         
      For the reasons I have indicated, I can only suggest that you answer this question in the affirmative.
   
            —
         
         
            The other question relating to this case is whether this Article is applicable to an accident suffered by a frontier worker, but one having no connexion with his work and not being an accident while travelling to or from work.
         
      In view of the date on which the accident in question occurred, that is to say, before the entry into force of Regulation No 36/63 of the Council on social security for frontier workers, the question should be considered in the first place with regard to the provisions of Regulation No 3, which deals with the position of frontier workers. The question should be answered affirmatively for the following reasons:
   Article 4 of Regulation No 3, which extends the scope of the Regulation to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States, defines the position of frontier workers as follows in paragraph (3):
   ‘Notwithstanding the foregoing, the provisions of this Regulation shall not apply to frontier workers or seasonal workers in so far as the benefits to which they are entitled are governed or to be governed by the special provisions of a social security Convention for such workers.’
   In other words the Regulation applies in principle to frontier workers as far as the general provisions are concerned as well as those provisions which regulate the benefits; the only exception (apart from paragraph (4) of the said Article, which has no bearing on this case) concerns the benefits governed by special provisions for frontier workers in a social security convention.
   Indeed they must be provisions particular to frontier workers, that is to say, ‘specific and original provisions, proper to this category of workers’, using the expression of the Administrative Commission of the Community for Social Security. For example, that Commission was of the opinion that a general bilateral convention on social security, which would apply to all workers, including frontier workers, ceased to apply in respect of this latter category upon the entry into force of Regulation No 3, if it does not contain specific provisions in respect of this category of workers. This opinion seems to me to conform to Article 4 (3) of the Regulation in every respect.
   There are thus two reasons for assuming that Article 52 applies to frontier workers: there is no corresponding provision in a convention which specifically applies to frontier workers; on the other hand, above all, this Article constitutes a provision of a general nature of which it cannot be said that it governs the right to benefits, or to any particular benefit.
   It may be added, if that is necessary, that Regulation No 36/63 relating to frontier workers, which entered into force on 1 February 1964, has not altered this view in any way. According to Article 3 of that Regulation, the provisions of Regulations Nos 3 and 4 shall apply to frontier workers, in so far as the new Regulation does not derogate from them and contains no derogation from Article 52 of Regulation No 3.
   There remains one last point which is included in the question submitted by the Netherlands court: does the Article in question apply when the accident which caused the injury is not an industrial accident or one of a similar nature?
   In this case, again, the answer can only be in the affirmative.
   Article 52, which is part of the miscellaneous provisions, is expressed in sufficiently wide terms to cover all those cases in which the liability of the third party responsible for the injury can be established and where the institution liable for the payment of benefit takes action. It is sufficient that the following two conditions have been fulfilled: that the injury must have been sustained in the territory of a State other than that of the institution which has paid the benefits and that this institution, under the legislation applicable to it, must be subrogated to the beneficiary in his claims against the third party responsible. It is of no importance whether the accident which caused the injury is in the nature of an industrial accident or not.
   My opinion is as follows:
   
            1.
         
         
            
               In Case 31/64 the answer should be:
            
                     —
                  
                  
                     
                        To the first question :
                     
                     That the first paragraph of Article 52 of Regulation No 3 concerning social security for migrant workers is applicable even if no bilateral agreement, as referred to in the second paragraph of that Article, has been concluded between the Member States concerned;
                  
               
                     —
                  
                  
                     
                        To the second question:
                     
                     The same Article should be regarded as applicable even where the residence of the worker and his place of work are both situated in the territory of the same Member State, but where geographically these places are situated in such a way that the route usually taken by the worker crosses the territory of another Member State.
                  
               I am of the opinion also that the Arrondissementsrechtbank, Maastricht, should decide on the costs.
         
      
            2.
         
         
            
               In Case 33/64, the answer should be:
            
                     —
                  
                  
                     
                        To the first question:
                     
                     In the same terms as I have suggested in Case 31/64;
                  
               
                     —
                  
                  
                     
                        To the second question:
                     
                     That the first paragraph of Article 52 applies to the case of a frontier worker who has suffered an accident in his own country, even if that accident is not in the nature of an industrial accident.
                  
               I am of the opinion that the Arrondissementsrechtbank, Assen, should decide on the costs.
         
      (
         1
      )	Translated from the French.