C-75/63

judgment of 19.3.1964 — case 75/63

2. The concept of wage-earners or the opportunity to belong to the

assimilated workers within the mean­ social security system has been given ing of Regulation No 3 of the Council to the person concerned on the con­

of the EEC covers those persons who, ditions and for the reasons set out in 2.

originally compulsorily affiliated to a social security system as 'workers', 4. 'Wage earners or assimilated workers'

have subsequently, as such and in in the situation envisaged by Article consideration of a possible resump­ 19 (1) of Regulation No 3 of the

nevertheless covered by the concept those which would be applied if the of 'wage-earner or assimilated work­ person concerned had fallen ill while er', it is for the national court to in the territory of the State to which appraise whether, in each instance, the insurer belongs.

In Case 75/63

Reference to the Court under Article 177 of the EEC Treaty by the Cen­

trale Raad van Beroep, the Netherlands court of last instance in social

security matters, for a preliminary ruling in the action pending before that court between

Mrs M. K. H. UNGER, the wife of R. HOEKSTRA both residing at Wou­ ,

Council concerning social security for migrant workers; Official Journal of 16 December 1958, pp. 561 et seq.), and in particular the said provision (that

is, Article 19 (1) of Regulation No 3) be interpreted? And in particular

HOEKSTRA v BEDRIIFSVERENIGING DETAILHANDEL

whether the concept of wage-earner or assimilated worker is defined by the legislation of the Member States or whether it has a supranational meaning?

If so, what is that meaning, because a definition of the term is necessary to decide whether the said Article 19 (1) prevents the non-payment of the

sickness expenses of persons who, according to the findings of the Netherlands court, are in the particular situation in which the applicant has been found be?'

Issues of fact and of law

I — Background and subject­ of the Ziektewet, which is worded as

matter of the dispute folows:

'By virtue of the provisions of this

The Netherlands court gives the follow­ chapter or of provisions adopted or to

ing information: be adopted under it, vocational asso­

refers. When this compulsory insurance should the opportunity arise.' expired, the appellant was afforded by In the appellant 's case, it was reason­

the defendant as from 15 January 1962 able to suppose that after the birth of her

the advantages of voluntary insurance child, which was expected in May 1962, provided for by that law. This provision she would accept a new contract of

was adopted on the basis of Article 64 (1) employment as soon as the opportunity

JUDGMENT OF 19.3.1964 — CASE 75/63

arose. European Economic Community, the

ruary 1962 where she fell ill and was their un­ submitted written observations

able to the period; they pre­ carry on any professional activity. within prescribed

Her state of health required immediate sented oral argument at the hearing on medical treatment. On 18 March 1962 28 November 1963. she returned to the Netherlands where, The Advocate-General delivered his in accordance with the Ziektewet, she

claimed insurance payments in respect opinion at the hearing on 10 December 1963. of her inability to work. By a decision of 18 April 1962, the respondent refused

in­ III — Observations of the par­

payment of the medical expenses ties to the proceedings curred while the appellant had been in is from 25 Feb­ Germany, that to say, The admissibility of the reference ruary 1962 to 18 March 1962. 1.

tioned provision does apply in her not persons who come under a social security

case, basing her argument on Article 19 scheme, even voluntarily.

(1) of the abovementioned Regulation No 3. The Court, it is true, decided in the very first place by its judgment in Case 26/62 II — Procedure (Rec. 1963, pp. 7 et seq.) that the factors which motivated the national court in In accordance with Article 20 of the drawing up its question, together with Statute of the Court of Justice of the the significance which the court attaches

HOEKSTRA v BEDRIJFSVERENIGING DETAILHANDEL

to it the framework in­ within of a case admitted to a scheme of voluntary presently before it, fall outside the ap­ surance pursuant to Article 64 because praisal of the Court ofJustice. There are, it was to be supposed that once she was

however, grounds for considering gener­ no longer incapacitated for work, she

themselves to coordinating the corresponding national law, and an respec­

tive national laws but integrate them. 'assimilated worker' is a person who has Thus Regulation No 3 creates an inde­ been assimilated by an authentic inter­ pendent European social law and con­ pretation, is no longer accurate. The tains Community concepts. specifically appellant refers to a series of social laws As the text of the Treaty establishing the of the Netherlands which do not con­

'wage-earner' European Economic Community shows, tain the criterion of and

Article 51 deals with social security as an which nevertheless come under that

aspect of the freedom of movement of provision in accordance with Annex B workers. to Regulation No 3. This also shows

These principles have led the appellant that the concept of a wage-earner

sured, referred to in Article 64 (1) of the According to Article 4 (1) of Regulation Ziektewet. The Raad van Beroep based No 3, this Regulation 'shall apply <ap note>1</ap note> its finding, in accordance with which the equally­ to wage-earners or assimilated 'assimilated' appellant is not within the workers who are … subject to the legis­

of Regulation No 3, on the fact lation of one or more of the Member meaning States'

that in deciding the scope of this status and who fulfil certain other con­

the Ziektewet did not employ the 'legal ditions (nationality According to etc.).

fiction that a voluntarily insured person Article 1 (b) of the Regulation, taken in is considered as a wage-earner or assimi­ conjunction with Articles 2 and 3 of the lated worker within meaning of thethe Regulation and Annex B thereto, the 'legislation'

Ziektewet'; this purely formal point of term must be understood as view is untenable. The appellant was to the legislation of the Mem- referring

lated', since assimilation presupposes a The Commission of the European Economic

national legislative measure. Community observes in particular that:

'The meaning of that formula must 1. Regulations of the EEC have as

encompass the categories of persons who, their object the creation of a unified law in accordance with the law of a Member in the Member States; it follows from

State, do not perhaps come within the this that the concepts which they con­

concept of a wage-earner within the tain are in principle invested with a

virtue of the provisions of other Mem­ guaranteed to its own in­ nationals, ber States, and if it were necessary also cluding the application of the provisions to define on this basis the concept of in force relating to social security. On 'wage-earner'. Article 4 of Regulation the other hand, it is not the intention of

No 3 also refers to wage-earners to the Treaty to replace national legisla­ whom these provisions were applicable, tion by other rules. who were wage-earners in the past and consequently it is not the object either

who were thus for example, assured as, of the Treaty or of the provisions in the holders of an allowance for sickness, implementation thereof to determine by retirement or unemployment. An inter­ a legislative Community measure who Regula­ pretation excluding from the is a 'wage-earner'. On the contrary, in tion that of persons this only to category primarily respect they refer national

benefiting from social security would run legislation.

contrary to the spirit of that Regulation. However Article 51 of the T­ reaty is In addition Article 9 of the Regulation, designed to resolve as well as possible in which mentions insurance, the interests of the workers the questions voluntary indicates this. arising as a consequence of the co­

In the case in question, this indicates existence of the national legislation of

Community, to create, if necessary, new wage-earners, no matter what legal and independent concepts … form or terminology is used by national 3. However the T­ reaty does not auth­ legislation to ensure that extension, or

orize the Community to create a whether the affiliation is obligatory or

unified social law for all the Member voluntary. In particular … there shall

States. Accordingly, it should not be be considered as assimilated within the

assumed that there is a specifically meaning of Regulation No 3 those

Community definition of the legal con­ persons who have ceased to be wage-

does not recognize 'the legal status of the (b) Moreover, the reply to the ques­

qualitative equality of other persons tion whether, in a particular case, a 'assimilated' with wage-earners'. The answer to the person is in this sense, question must accordingly be found by depends exclusively on the appropriate the the national law. Regulation No 3 does not taking account of objectives of

Regulation. Regula­ According to the specify to the Member States what cate­

there be 'as­ be tion, shall considered as gories of self-employed persons must

'per­ insurance, similated'

to wage-earners those provided with social volun­

Regulation No 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'.

JUDGMENT OF 19.3.1964 — CASE 75/63

The reply to the question put thus depends essentially upon the scope,

possible, which thus forms part of the 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.

'workers' The concept of in the said Articles does not therefore relate to

national law, but to Community law.

The 'wage-earner by Regulation worker'

expression or assimilated used

No 3 has a meaning only within the framework and the limits of the concept 'workers' of provided for in the Treaty to the application of which this

Regulation is limited.

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.

2. The Centrale Raad requests the Court, in the second part of its question, in that in dispute be Com­ and the event the expression should given a

munity meaning, to give a ruling on what that meaning is, because a

definition of the term is necessary when deciding whether the aforementioned Article 19(1) prevents the non-payment of sickness expenses to persons in a situation similar to that in this case.

It follows both from the Treaty and from Regulation No 3, that the pro­

'worker' tected is not exclusively one who is currently employed.

employment the opportunity to adhere voluntarily to the social security system for wage-earners and such adherence has been proffered and

accepted, this measure can be considered in certain circumstances as 'workers'

intending to protect the persons concerned in their capacity as

within meaning of the Treaty the and to confer on this protection the

safeguards of Regulation No 3.

JUDGMENT OF 19.3.1964 — CASE 75/63

Any 'wage-earner or assimilated in the position described in the worker'

afore-mentioned Article 19(1) may claim the benefits referred to therein.

This provision does not contain any exception to the detriment of the persons

concerned, in particular, as regards the ground of temporary residence

abroad. It also precludes any national rules from subjecting the grant of the benefits in question, in the event of such residence, to more onerous conditions than those which would be applied if the person had fallen ill while in the

territory of the State to which the insurer belongs.

As these proceedings are, in so far as the parties to the main action are con­

cerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;

HOEKSTRA v BEDRIJFSVERENIGING DETAILHANDEL

Upon hearing the oral observations of the appellant in the main action, of the German Government and of the Commission of the EEC; Upon hearing the opinion of the Advocate-General;

in answer to the questions referred to it by the Centrale Raad van Beroep, by letter of the acting President of that court of 12 July 1963, hereby rules:

' 1. The concept of 'wage-earner or assimilated worker em­

ployed in Regulation No 3 of the Council of the EEC concern­

ing social security for migrant workers (Official Journal of the European Communities of 16 December 1958, pp. 561 et 'workers' seq.) has, like the term in Articles 48 to 51, a

Community meaning.

2. (a) This concept covers those persons who, originally 'work­ compulsorily affiliated to a social security system as ers', have subsequently, as such and in consideration of a

in the situation envisaged by Article 19 (1) of Regulation No 3 benefit from the rights conferred by that provision, whatever may be the reason for their temporary residence abroad.

(b) Article 19 (1) precludes any rule of national law from subjecting the grant of the benefits in question, in the case

OPINION OF MR LAGRANGE — CASE 75/63

of such temporary residence, to conditions more onerous

than those which would be applied if the person concerned had fallen ill while in the territory of the State to which the insurer belongs.

4. It is for the national court to decide the question of the costs

Mr President, her sickness insurance benefit. This Members of the Court, first judgment, which was carefully enough reasoned, dismissed in particular Once again a Netherlands court, the an argument of the appellant based on

Centrale Raad van Beroep, a court of Articles 4 and 19 of Regulation No 3. last instance against whose decisions The appeal court, in its judgment of

there is no remedy under national law 21 May 1963, limits itself to finding that on matters of social security, refers a a question of the interpretation of a

preliminary question to you under Community regulation was raised and Article 177 of the EEC Treaty. The that therefore reference should be made to the interpreta­ to the Court of Justice of the European questions put relate

tion of certain provisions of Regulation Communities under Article 177, but it No 3 social security for has not put question to this Court, concerning any migrant workers, adopted in pursuance merely charging its President to pass

of Article 51 of the Treaty. the file to this Court, and it is the