Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (Administration of the Industrial Board for Retail Trades and Businesses).
Date: 1964-03-19
1 . THE QUESTION PUT BY THAT COURT REQUESTS THE COURT OF JUSTICE TO RULE, IN THE FIRST PLACE, WHETHER THE CONCEPT OF A ' WAGE-EARNER OR ASSIMILATED WORKER ' AS USED IN ARTICLE 19 ( 1 ) OF REGULATION N . 3 IS DEFINED BY THE LEGISLATION OF EACH MEMBER STATE OR BY COMMUNITY LAW AS HAVING A SUPRANATIONAL MEANING .
REGULATION N . 3 WAS ADOPTED IN APPLICATION OF ARTICLE 51 OF THE EEC TREATY, UNDER THE TERMS OF WHICH THE COUNCIL 'SHALL...ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS ', BY MAKING ARRANGEMENTS ' TO THIS END ' TO SECURE FOR THE PERSONS CONCERNED, AMONG OTHER ADVANTAGES, ' AGGREGATION, FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES '.
THE REPLY TO THE QUESTION PUT THUS DEPENDS ESSENTIALLY UPON THE SCOPE, WHETHER COMMUNITY OR OTHERWISE, OF THE PROVISIONS OF THE TREATY FROM WHICH THE CONCEPT OF ' WAGE-EARNER OR ASSIMILATED WORKER ' IN SO FAR AS THEY AFFECT THE FIELD OF SOCIAL SECURITY, WAS DRAWN BY THE SAID REGULATION .
ARTICLE 51 IS INCLUDED IN THE CHAPTER ENTITLED ' WORKERS ' AND PLACED IN TITLE III (' FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL ') OF PART TWO OF THE TREATY (' FOUNDATIONS OF THE COMMUNITY ').
THE ESTABLISHMENT OF AS COMPLETE A FREEDOM OF MOVEMENT FOR WORKERS AS POSSIBLE, WHICH THUS FORMS PART OF THE ' FOUNDATIONS ' OF THE COMMUNITY, THEREFORE CONSTITUTES THE PRINCIPAL OBJECTIVE OF ARTICLE 51 AND THEREBY CONDITIONS THE INTERPRETATION OF THE REGULATIONS ADOPTED IN IMPLEMENTATION OF THAT ARTICLE .
ARTICLES 48 TO 51 OF THE TREATY, BY THE VERY FACT OF ESTABLISHING FREEDOM OF MOVEMENT FOR ' WORKERS ', HAVE GIVEN COMMUNITY SCOPE TO THIS TERM .
IF THE DEFINITION OF THIS TERM WERE A MATTER WITHIN THE COMPETENCE OF NATIONAL LAW, IT WOULD THEREFORE BE POSSIBLE FOR EACH MEMBER STATE TO MODIFY THE MEANING OF THE CONCEPT OF ' MIGRANT WORKER ' AND TO ELIMINATE AT WILL THE PROTECTION AFFORDED BY THE TREATY TO CERTAIN CATEGORIES OF PERSON .
MOREOVER NOTHING IN ARTICLES 48 TO 51 OF THE TREATY LEADS TO THE CONCLUSION THAT THESE PROVISIONS HAVE LEFT THE DEFINITION OF THE TERM ' WORKER ' TO NATIONAL LEGISLATION .
ON THE CONTRARY, THE FACT THAT ARTICLE 48 ( 2 ) MENTIONS CERTAIN ELEMENTS OF THE CONCEPT OF ' WORKERS ', SUCH AS EMPLOYMENT AND REMUNERATION, SHOWS THAT THE TREATY ATTRIBUTES A COMMUNITY MEANING TO THAT CONCEPT .
ARTICLES 48 TO 51 WOULD THEREFORE BE DEPRIVED OF ALL EFFECT AND THE ABOVE-MENTIONED OBJECTIVES OF THE TREATY WOULD BE FRUSTRATED IF THE MEANING OF SUCH A TERM COULD BE UNILATERALLY FIXED AND MODIFIED BY NATIONAL LAW .
THE CONCEPT OF ' WORKERS ' IN THE SAID ARTICLES DOES NOT THEREFORE RELATE TO NATIONAL LAW, BUT TO COMMUNITY LAW .
THE EXPRESSION ' WAGE-EARNER OR ASSIMILATED WORKER ' USED BY REGULATION N . 3 HAS A MEANING ONLY WITHIN THE FRAMEWORK AND THE LIMITS OF THE CONCEPT OF ' WORKERS ' PROVIDED FOR IN THE TREATY TO THE APPLICATION OF WHICH THIS REGULATION IS LIMITED .
THE SAID EXPRESSION, WHICH IS INTENDED TO CLARIFY THE CONCEPT OF ' WORKERS ' FOR THE PURPOSES OF REGULATION N . 3, HAS THEREFORE, LIKE THAT CONCEPT, A COMMUNITY MEANING .
EVEN IF, FOR THE SAKE OF ARGUMENT, THE EXPRESSION ' WAGE-EARNER OR ASSIMILATED WORKER ' APPEARED IN THE LEGISLATION OF EACH OF THE MEMBER STATES, IT COULD NOT POSSIBLY HAVE A COMPARABLE MEANING AND ROLE, SO THAT IT IS IMPOSSIBLE TO ESTABLISH THE MEANING BY REFERENCE TO SIMILAR EXPRESSIONS WHICH MAY APPEAR IN NATIONAL LEGISLATION .
THE CONCEPT OF ' WAGE-EARNER OR ASSIMILATED WORKER ' HAS THUS A COMMUNITY MEANING, REFERRING TO ALL THOSE WHO, AS SUCH AND UNDER WHATEVER DESCRIPTION, ARE COVERED BY THE DIFFERENT NATIONAL SYSTEMS OF SOCIAL SECURITY .