61973J0051

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - PARTICULAR SCHEMES UNDER NATIONAL LAW WITHIN THE MEANING OF ARTICLES 10 ( 1 ) OF REGULATIONS NO 3 AND NO 1408/71 OF THE COUNCIL - MEANING

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - PARTICULAR SCHEMES UNDER NATIONAL LAW - BENEFITS THEREUNDER - GRANT - CONDITIONS - TERRITORIAL CLAUSE - CANNOT BE APPLIED

( REGULATIONS NO 3 AND NO 1408/71 OF THE COUNCIL, ARTICLE 10 ( 1 ))

1 . THE PHRASE " BY VIRTUE OF THE LEGISLATION OF ONE OR MORE MEMBER STATES " IN ARTICLE 10 ( 1 ) OF REGULATION NO 3 AND THE PHRASE " ... UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES " IN ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 REFER TO NATIONAL LAWS AFTER THE EFFECTS OF COMMUNITY LAW, AND PARTICULARLY THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN NATIONALS OF MEMBER STATES, HAVE BEEN TAKEN INTO ACCOUNT .

2 . THE PROTECTION AFFORDED BY ARTICLE 10 ( 1 ) OF REGULATIONS NOS 3 AND 1408/71 EXTENDS TO BENEFITS ARISING FROM PARTICULAR SCHEMES UNDER NATIONAL LAW WHICH ARE GIVEN EFFECT BY INCREASING THE VALUE OF THE PAYMENT TO BE MADE TO THE BENEFICIARY .

IN CASE 51/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP OF UTRECHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BESTUUR DER SOCIALE VERZEKERINGSBANK, AMSTERDAM,

AND

B . SMIEJA, RESIDENT IN ESSEN-KUEPFERDREH ( FRG ),

ON THE INTERPRETATION OF ARTICLE 8 AND 10 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 ( OJ NO 30/1958, P . 561 ), ON SOCIAL SECURITY FOR MIGRANT WORKERS, AND ARTICLES 3 ( 1 ) AND 10 ( 1 ) OF EEC REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OJ L 149/71, P . 2 ), ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY,

1 BY AN ORDER DATED 8 MARCH 1973, LODGED AT THE REGISTRY ON 19 MARCH 1973, THE CENTRALE RAAD VAN BEROEP REFERRED A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF REGULATIONS OF THE COUNCIL NO 3 OF 3 DECEMBER 1958 ON SOCIAL SECURITY FOR MIGRANT WORKERS AND NO 1408/71 OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS .

2 THE SUBSTANCE OF THE QUESTIONS IS WHETHER THE TERM " LEGISLATION " OF MEMBER STATES IN ARTICLES 8 AND 10 ( 1 ) OF REGULATION NO 3, AND ALSO IN ARTICLES 3 ( 1 ) AND 10 ( 1 ) OF REGULATION NO 1408/71 IS TO BE INTERPRETED AS MEANING NATIONAL LEGISLATION AS IT IS AFTER COMMUNITY LAW HAS BEEN INCORPORATED INTO IT, OR NATIONAL LEGISLATION AS FORMULATED, REGARDLESS OF ANY MODIFICATION OF IT BROUGHT ABOUT BY THE REGULATIONS REFERRED TO .

3 AN INTERPRETATION OF THE WORD " ACQUIRED " IN ARTICLE 10 ( 1 ) OF REGULATIONS NO 3 AND NO 1408/71 IS ALSO REQUESTED .

4 THE ORDER MAKING THE REFERENCE REVEALS THAT THE PLAINTIFF IN THE MAIN ACTION, OF GERMAN NATIONALITY AND CURRENTLY RESIDENT IN GERMANY, THOUGH FORMERLY EMPLOYED IN THE NETHERLANDS, APPLIED ON REACHING THE AGE OF 65 YEARS IN 1970 FOR THE SCHEME SET OUT IN ARTICLE 43 OF THE DUTCH GENERAL OLD-AGE LAW ( AOW ) TO BE TAKEN INTO ACCOUNT IN THE ASSESSMENT OF HER OLD-AGE PENSION UNDER DUTCH LEGISLATION .

5 THE SCHEME MENTIONED COVERS ALL PERSONS WHO HAD NOT ATTAINED THE AGE OF 65 YEARS ON 1 JANUARY 1957 AND WERE RESIDENT IN THE NETHERLANDS FOR THE SIX YEARS FOLLOWING THE COMPLETION OF THEIR FIFTY-NINTH YEAR, WITH THE PROVISO IN ARTICLE 44, HOWEVER, THAT ONLY THOSE PERSONS MIGHT BENEFIT UNDER ARTICLE 43 WHO " ( A ) POSSESS DUTCH NATIONALITY AND ( B ) RESIDE WITHIN THE KINGDOM ".

6 IT IS EVIDENT FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION IS, UNDER THE DUTCH LAW GOVERNING THE APPLICATION OF ARTICLE 43, ASSIMILATED WITH PERSONS WHO WERE RESIDENT IN THE NETHERLANDS FOR THE SIX YEARS FOLLOWING THEIR FIFTY-NINTH YEAR, DESPITE THE FACT THAT HER ACTUAL RESIDENCE FOR THE DETERMINING PERIOD WAS IN GERMANY .

7 IT THEREFORE FOLLOWS THAT THE ONLY POINT IN DISPUTE IS WHETHER OR NOT SHE MAY BE CONSIDERED TO HAVE FULFILLED THE CONDITION OF RESIDENCE IMPOSED BY ARTICLE 44 OF THE LAW .

8 BY REASON OF HER FORMER EMPLOYMENT IN THE NETHERLANDS, THE PLAINTIFF IS COVERED BY THE COMMUNITY REGULATIONS FOR MIGRANT WORKERS .

9 THE SCOPE OF THE ABOVEMENTIONED REGULATIONS MUST THEREFORE BE EXAMINED IN THE LIGHT OF THESE CIRCUMSTANCES .

10 ARTICLE 8 OF REGULATION NO 3, WHICH IS SUBSTANTIALLY REPEATED IN ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71, PROVIDES THAT PERSONS RESIDENT IN THE TERRITORY OF A MEMBER STATE WHO ARE COVERED BY THE REGULATION SHALL BE SUBJECT TO THE SAME OBLIGATIONS AND ENJOY THE SAME BENEFITS UNDER THE SOCIAL SECURITY LEGISLATION OF ANY MEMBER STATE AS THE NATIONALS OF THAT STATE .

11 THIS PROVISION IS DESIGNED TO ENSURE FOR WORKERS COVERED BY THE REGULATIONS EQUALITY IN THE AREA OF SOCIAL SECURITY WITHOUT DISTINCTION AS TO NATIONALITY, BY PROHIBITING ANY DISCRIMINATION IN SUCH MATTERS ARISING FROM THE NATIONAL LEGISLATION OF MEMBER STATES .

12 THAT OBJECTIVE DOES NOT NECESSARILY REQUIRE THAT DISTINCTIONS BASED ON THE PARTIES' RESIDENCE BE REMOVED, SO THAT THE ARTICLES MENTIONED CANNOT BE CONSIDERED AS AFFECTING SUCH DISTINCTIONS .

13 TO STATE THIS IS NOT TO EXCLUDE THE POSSIBILITY THAT DISTINCTIONS BASED ON RESIDENCE MAY BE ENVISAGED BY OTHER PROVISIONS, SUCH AS ARTICLE 10 ( 1 ) OF EACH OF THE TWO REGULATIONS .

14 ARTICLE 10 ( 1 ) ENSURES FOR THE RECIPIENT FULL ENTITLEMENT TO VARIOUS CASH BENEFITS, PENSIONS, AND OTHER GRANTS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES, EVEN WHILE HE RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

15 THE AIM OF THIS PROVISION IS TO GUARANTEE THE PARTY CONCERNED HIS RIGHT TO HAVE THE BENEFIT OF SUCH PAYMENTS EVEN AFTER TAKING UP RESIDENCE IN A DIFFERENT MEMBER COUNTRY, E.G . HIS COUNTRY OF ORIGIN .

16 THE RIGHTS UNDER DISCUSSION OFTEN DERIVE, NOT FROM NATIONAL LEGISLATION ALONE, BUT FROM WHAT LEGISLATION COMBINED WITH THE PRINCIPLE OF NON-DISCRIMINATION ON THE BASIS OF NATIONALITY SET OUT IN ARTICLE 8 OF REGULATION NO 3 AND ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 .

17 IN THE EVENT OF THE PARTY' S RIGHTS DERIVING FROM THE LEGISLATION OF SEVERAL MEMBER STATES - A POSSIBILITY EXPRESSLY FORESEEN IN ARTICLE 10 - PAYMENT IS ALWAYS MADE ACCORDING TO THE PROVISIONS IN THE REGULATION .

18 IT MAY THEREFORE BE CONCLUDED THAT THE PHRASE " LEGISLATION OF ONE OR MORE MEMBER STATES " IN ARTICLE 10 ( 1 ) MUST BE INTERPRETED AS EMBRACING THE RELEVANT PROVISIONS OF COMMUNITY LAW .

19 SECONDLY, AN INTERPRETATION OF THE WORD " ACQUIRED " IN ARTICLE 10 ( 1 ) REGULATIONS NO 3 AND NO 1408/71 IS REQUESTED .

20 AS ALREADY STATED, THE PURPOSE OF THIS PROVISION IS TO PROMOTE THE FREE MOVEMENT OF WORKERS, BY INSULATING THOSE CONCERNED FROM THE HARMFUL CONSEQUENCES WHICH MIGHT RESULT WHEN THEY TRANSFER THEIR RESIDENCE FROM ONE MEMBER STATE TO ANOTHER .

21 FOR THIS, THE PROTECTION GIVEN MUST NECESSARILY EXTEND TO COVER BENEFITS WHICH, WHILE CREATED WITHIN THE CONFINES OF A PARTICULAR SCHEME, E.G . THAT IN ARTICLE 43 OF THE AOW, ARE GIVEN EFFECT BY INCREASING THE VALUE OF THE PENSION WHICH WOULD OTHERWISE ACCRUE TO THE RECIPIENT .

22 IT FOLLOWS THAT, TO THE EXTENT THAT A NATIONAL LAW SUCH AS ARTICLE 44 OF THE AOW IMPOSES A CONDITION OF RESIDENCE ON WOULD-BE RECIPIENTS OF SOME OF THE BENEFITS OF THE TYPE MENTIONED IN ARTICLE 10, THE FACT THAT THE PERSON CONCERNED RESIDES IN THE TERRITORY OF A DIFFERENT MEMBER STATE IS NO GROUND FOR MODIFICATION, WITHDRAWAL OR SUSPENSION OF SUCH BENEFIT .

23 THE COSTS INCURRED BY THE DUTCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

24 AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE " CENTRALE RAAD VAN BEROEP " BY ORDER OF THAT COURT DATED 8 MARCH 1973, HEREBY RULES :

1 . THE PHRASE " UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES " IN ARTICLE 10 ( 1 ) OF REGULATION NO 3, AND THE PHRASE " ... UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES " IN ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 MEAN NATIONAL LEGISLATION AS IT IS AFTER THE RULES OF COMMUNITY LAW, IN PARTICULAR THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN NATIONALS OF THE MEMBER STATES, HAVE BEEN INCORPORATED IN IT .

2 . THE WORD " ACQUIRED " IN ARTICLE 10 ( 1 ) OF REGULATIONS NO 3 AND NO 1408/71 IS TO BE INTERPRETED AS MEANING THAT THE PROTECTION ENSURED BY THAT PROVISION EXTENDS TO THE BENEFITS ARISING FROM PARTICULAR SCHEMES UNDER NATIONAL LAW WHICH ARE GIVEN EFFECT BY INCREASING THE VALUE OF THE PAYMENT WHICH WOULD OTHERWISE BE MADE TO THE RECIPIENT .