C-92/63
ECLI:EU:C:1964:40
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JUDGMENT OF 9.6.1964 — CASE 92/63
In Case 92/63
Reference to the Court under Article 177 of the EEC Treaty by the Acting President of the Centrale Raad van Beroep, Utrecht, for a preliminary
ruling in the action pending before that court between
Mrs M. Th. Nonnenmacher, widow of H. E. Moebs , resident at Drusen heim (France),
appellant,
and
BESTUUR der SOCIALE VERZEKERINGSBANK , Amsterdam,
respondent,
on the interpretation of Article 12 of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant
workers (Official Journal of 16 December 1958, p. 561);
THE COURT
composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß
(Rapporteur), Judges,
Advocate-General: M. Lagrange
Registrar: A. Van Houtte
gives the following
JUDGMENT
I — Issues of fact and of law acting President of the Netherlands court.
1. By an order of 16 October 1963 the 2. By a letter of the same date the
Netherlands court decided that the case acting President in carrying out this before it raised a question envisaged by order asked the Court ofJustice to give a
Article 177 of the EEC Treaty, making preliminary ruling on the following necessary a preliminary ruling of the question:
Court of Justice of the European Com Must Article 12 of Regulation No 3
munities, and that for this purpose the be construed as meaning that the file of the case should be sent to the persons to whom it refers are subject
NONNENMACHER v SOCIALE VERZEKERINGSBANK
only to the legislation of the Member the respondent, the President acting State in whose territory they are refers to the official transcript of the
employed, irrespective of whether judgment, disputed before the reference, the persons concerned can in fact of the Raad van Beroep, Amsterdam,
assert any rights on the basis of such which shares the view of the respondent, ?' legislation as well as to Schedule IV to the reference, 3. The acting President pointed out in from which it appears that the payment particular: office of the French social security In accordance with Article 53 of the service rejected the request of the
'Algemene Weduwen- for the payment of a widow's en Wezenwet', appellant Widows' Orphans' (General and Law; pension.
hereinafter referred to as the AWW), 4. In her notice of appeal as well as in
the Netherlands court is competent to a further pleading of 5 June 1961, the decide appeals in cases relating to the appellant in the main action also pro
application of that Law. vides the following information: The husband of the appellant in the From 1956 she lived in the Netherlands main action, Mr Moebs, died on 21 with her husband who had French October 1959. It is established that until nationality. She has had by her marriage 1 September 1959 he lived in the eight children still living, of whom the Netherlands and that after that date eldest was born in 1949 and the youngest until his death he worked in France. It in 1959. Since 1 July 1960 she has lived must be remembered that at the time of in France. his death Mr Moebs was still resident in Since 1959, in order to assert her rights the Netherlands. she has instituted several administrative The appellant considers that under and judicial proceedings, based on
Article 7 of the above-mentioned Law paragraphs (a) and 4 of Article 7 of 1 she is entitled to a widow's pension, the AWW as well as on paragraphs 1 (a)
since her husband was insured from 1 and 1 (g) of Article 2 of the Royal Decree
October 1959 until his death on the basis of 10 July 1959 (Staatsblad, p. 230) of the AWW, and it was in fact on 1 issued to give effect to this Law. On October 1959, that according to the several occasions the Raad van Beroep, findings of the acting President the 's-Hertogenbosch, has annulled deci
above-mentioned provision entered into sions of administrative courts which had force. Moreover, as regards the appel dismissed applications by the appellant, lant's arguments the acting President including a decision of the Raad van
refers to Schedules I and II of the letter Arbeid, 's-Hertogenbosch, which based making the reference. its decision for the first time on Article On the other hand, according to the 12 of Regulation No 3, and sent the case Mr Moebs in back respondent, was never to the administrative authorities.
sured on the basis of the AWW. In By decision of 15 September 1963 the with Article 12 of Regula respondent in the main action refused to accordance
tion No 3, the only system of social allow the claim of the appellant in the insurance applicable to him is that of main action; the appeal against this
the State on the territory of which the decision was dismissed as unfounded by wage-earner in question was employed, the decision of 19 March 1963 of the
in the present case the French system. It Raad van Beroep, Amsterdam; it is is of little importance in this respect against this judgment that the further
whether, on the basis of this law, the appeal was instituted. appellant can or cannot in fact assert the appellanthas, in addition, put be rights to a widow's pension. On the fore the Court the following documents: other hand, as regards the arguments of (a) A note from the Caisse primaire de
JUDGMENT OF 9.6.1964 — CASE 92/63
sécurité sociale de Haguenau She explains in particular the reasons
(France), which explains in partic why she believes she is able to base her Nether ularthat, according to French law right to a widow's pension on
(Code de sécurité sociale, Article lands law. In this respect, she argues
L. 323), the widow of a member of first of all that, from the entry into force the social insurance scheme who of the AWW until his death, her has not retired has no right to a husband was insured under that Law pension as long as she is not suffer and paid the maximum contribution
ing from a permanent incapacity for which it made provision. The to work; Netherlands Law on the matter must
(b) A medical certificate according to be construed in such a manner that the which the appellant in the main applications to the social insurance action is able to work. offices must not be refused only because the person insured belongs to the social II — Procedure security system of another Stae; on the contrary, it was also necessary for him In accordance with Article 20 of the to be effectively insured according to Protocol on the Statute of the Court of that Law. For, as the legal system in Justice of the European Economic Com question makes no payment to the per
munity, the request for a preliminary son concerned for certain risks, it is not ruling was notified to the parties con 'insured'
possible to say that he has been cerned as well as to the Member States, under that Law against those risks. the Commission and the Council of the On the basis of information obtained in European Economic Community. Only France, the appellant in the main the Commission submitted observations action explains in detail why the French within the prescribed time-limit. The social security system does not confer appellant in the main action referred to upon her any right which she can plead her notice of appeal as well as to her 'pleadings' in the present appeal. She states that the of 5 June 1961. single payment of a maximum of three U pon hearing the preliminary report of months' basic wages to a widow still does the Judge-Rapporteur and the opinion not amount to a payment equivalent to of the Advocate-General, the Court those provided by the AWW. Her decided to commence the oral procedure husband was certainly insured with the without any preparatory inquiry. Never 'Caisse interprofessionnelle de prévoy
theless it requested the Registrar to ask des in Paris, but that was a cadres'
ance the parties which had expressed opin
matter of a voluntary insurance which is ions in respect of Regulation No 3 to not to be taken into account in the produce all the administrative and present case. judicial decisions concerning the appell Article 12 of Regulation No 3 has not an ant in the main action. exclusive effect in the sense that the At the hearing on 17 March 1964 the possible application of a foreign system Court heard the Commission of the of social security would exclude ipso EEC and the opinion of the Advocate- jure the application of the AWW. That General. could at most be the case if the laws of
the States concerned were mutually in III — Legal arguments of the par
compatible but not if they are con
ties to the proceedings plementary. That is especially true in 1. In her notice of appeal and in her cases where, like the present one, the further the in law State (France) does not in pleading appellant the of one
makes the following applying to the facts in obser main action clude provisions
vations : dispute, while this is the case as regards
NONNENMACHER v SOCIALE VERZEKERINGSBANK
the law of another State (Netherlands). for compulsory insurance and, on the 2. The arguments of the respondent in other hand, of provisions for volun
the main action (and those of the Raad tary or optional continued insurance, van Beroep, Amsterdam, which in since in this case the payment of two essence shares the point of view of the contributions is not obligatory; the
former) may be summarized as fol ws: worker alone, and not the employer,
Article 12 of Regulation No 3 should be has to pay two contributions, one of
construed as that wage-earners them of his own free wil ; meaning resident in a Member State and —
it also allows for the simultaneous
employed in another Member State are application of two schemes, one of
exclusively subject to the law of the which calls for compulsory member
latter. This is argument confirmed by ship based on the exercise of a working Article 13 of the Regulation and in activity, the other being applicable by paragraph (a); it has also the resi particular to whole population with
appeared in certain international con dence as the sole qualification, on
ventions. It is, furthermore, the only condition, however, that membership one which is reasonable, since the simul of the latter scheme does not involve taneous application of different legal any obligation to participate in its systems is likely to lead to inconsisten financing by a specific contribution. such, for example, double The Commission bases its argument on contri cies as
butions. It is true that this argument does the following considerations: not fail to involve certain disadvantages (a) First, it discusses the content of the for those concerned, particularly when AWW and points out in particular that the provisions of the State in which they this Law does not require for its applica
work are less favourable than those of tion the exercise of any economic
their State of origin. Nevertheless this is activity whatever, but that it applies
a normal consequence of the decision to equally and in a general manner to the go and work abroad. In accordance with whole population resident in the Nether
all has been said, it is clear that that lands. The Royal Decree of 10 July Mr Moebs was not insured within the 1959 excludes the application of the
meaning of the AWW, so that the AWW where the person concerned is appellant in the main action cannot employed in another country and 'is insured' assert rights based on this Law. in accordance with the law of
such country against premature death. According to Netherlands law this ex
IV — Observations of the Com pression must be understood as meaning mission of the EEC that the only important factor is whe
ther the person concerned is employed has insured'
Only the Commission of the EEC in another country and 'is in made observations. It considers that accordance with the law of such country
Article 12 of the Regulation ought to be against premature death. According to construed as fol ws: Netherlands law this expression must be it requires the exclusive application understood as that the meaning only —
of the legislation of the country of important factor is whether the person
employment when all the legal sys concerned has been insured in the State tems for compulsory insur where he was but if he provide employed, not
ance based on the exercise of an in fact receives benefit there.
occupation; Thus the appeal could have already been — as against this, it still allows for the dismissed on the basis of Netherlands possibility of a simultaneous applica law alone. However an examination of
tion, on the one hand, of provisions the content of Article 12 of Regulation
JUDGMENT OF 9.6.1964 — CASE 92/63
No 3 is important to the extent that, tributions by those insured or by em
a priori, it is no use to keep to the con ployers, but not in other cases where, tents of Netherlands law if it follows for example, one of the two laws makes from this Article that French law alone provision only for voluntary insurance, is applicable. compulsory insurance or com without
The question from the Netherlands pulsory contribution. court must be interpreted in the light of (c) These principles are applicable also The Com in Article the foregoing observations. respect of the construction of
mission is of the opinion that it matters 12, which is based to a great extent on little to the court whether Article 12 similar provisions in previous social
refers to the law of the country in which security conventions. an insured person has been employed Article 12 unequivocally provides for the
only when the latter can invoke it in his compulsory application of the law of the favour; on the contrary the court wishes State in which the insured person is to know whether the reference to the employed, but has no precise provisions
legal system of the country in which an relating to the question of exclusive
insured person is employed always ex application. Nevertheless in certain
cludes the simultaneous application of cases Community law is by no means the provisions of another country, in opposed to the simultaneous application
particular when the application of the of two systems of legal rules as appears
last-mentioned provisions is not linked from the sense of Regulation No 3, as
to the exercise of a working activity, but well as from certain provisions of this
when it relates to the whole population Regulation (as for example Article 9(1) which resides in the country. and (2)), as well as from Regulation
(b) Article 12 is a rule concerning the No 4 of the Council of the EEC 'Regula conflict of laws such as must exist in a tion No 4 on implementing procedures
series of provisions which coordinates and supplementary provisions in respect the social insurance laws of several of Regulation No 3 concerning social countries. It must be examined in the security for migrant workers' (OJ 16 light of the development which has December 1958, p. 597 et seq.), and in become apparent since the last war in particular Articles 8 (c), 9 (4), 13 (1) (b)
the various international conventions and lastly, indirectly, Article 7 of Regu concerning social security. The rules lation No 73/63 of the Council of the
governing conflict of laws in these EEC of 11 July 1963 (OJ 24 July 1963, con
ventions have a double purpose: first, to p 2011). avoid the payment of double contribu The exclusive application of the law of tions by employers and employees; the State in which the insured person is in secondly, to ensure that the rules of one employed cannot, consequently, be of the States is applicable in every case ferred from Article 12 except in the
when those of the other State are not. cases when all the legal systems con
The exclusive application of the legal cerned make provision for compulsory
system to which reference is made each insurance in respect of which the person time serves the first purpose; its com insured or his employer must pay pulsory application serves the second. contributions. In this respect it must
In construing corresponding provisions also be remembered that Community it is necessary to distinguish between law sometimes accepts the principle of a the two objectives. Reference to a right to double benefits, but that it includes
legal system which is applicable ex no express provision directed towards
clusively is necessary only in so far as avoiding double contributions; for this the different legal systems which may be reason Article 12 must, in the first place,
in for compulsory be in question provide con- regarded as being the provision
NONNENMACHER v SOCIALE VERZEKERINGSBANK
tended to serve this purpose. present case, make provision for social
Lastly the Commission submits more security benefits which are not linked detailed observations in respect of cer to the exercise of working activities.
tain French and Netherlands regula Nevertheless, unlike the provisions of
tions. According to Articles 511 and 513 French law mentioned above the
of the French Social Security Code, the Netherlands laws provide for compul
wife of a man employed abroad has the sory contributions from every employed right to family allowances for her person. They belong, therefore, to those children resident in France if she herself bodies of rules which cannot be applied is not in employment. Furthermore simultaneously with the provisions of the certain Netherlands laws, among them legal system referred to in Article 12 of the AWW, which is relevant in the Regulation No 3.
Grounds of judgment
The Court has been properly seised of a request for interpretation under
177 of the EEC Treaty by the Centrale Raad van Beroep. Article
1. The question asked by the said court first requests the Court to say whether Article 12 of Regulation No 3 'must … be construed to mean that the persons to whom it refers are subject only to the legislation of the Member
State in whose territory they are employed'.
(a) Regulation No 3 was made pursuant to Article 51 of the EEC Treaty
according to which the Council 'shall … adopt such measures in the field of social security as are necessary to provide freedom of movement for
workes; to this end, it shall make arrangements to secure for migrant workers and their dependants … payments of benefits to persons resident in the territories of Member States'.
This payment pre-supposes membership of a social security scheme of a Member State. The Treaty has thus placed upon the Council the duty to
lay down rules preventing those concerned, in the absence of legislation applying to them, from remaining without protection in the matter of social security.
With a view to achieving this object it was necessary to make provision for
the mandatory application of specific legislation. Article 12 of Regulation
No 3 fulfils this requirement by obliging the State in whose territory wage-
earners or assimilated workers are employed to apply its legislation to them. The mandatory nature of this Article is further confirmed by the explicit (' terms of both Article 12 … shall be subject to the legislation of that
State and the Head under which it is included ('Provisions for deter …')
mining what legislation is applicable'). Taking into account the above-
JUDGMENT OF 9.6.1964 — CASE 92/63
mentioned provisions of Article 51 of the Treaty, this obligation must be regarded as the essential element of the said Article 12.
(b) The question submitted to the Court is directed towards clarifying whether and, if so to what extent the mandatory application of the — —
legislation of the State in which the worker is employed excludes the applica
tion of the legislation of any other Member State, even of that in the territory
of which he has his permanent residence.
Article 12 includes no provision prohibiting the simultaneous application of several systems of legislation. In these circumstances the intention of the
authors of Regulation No 3 to impose such a restriction on the freedom of the national legislature should be presumed only to the extent that such
simultaneous application is clearly contrary to the spirit of the Treaty and
particularly of Articles 48 to 51.
These provisions are designed to establish the greatest possible freedom of movement for workers. This aim includes the elimination of legislative obstacles which could handicap migrant workers.
In case of doubt the abovementioned Articles and the measures taken in
implementation of them must therefore be construed so as to avoid placing
migrant workers in an unfavourable legal position, particularly with regard to social security. On the other hand these provisions are not opposed to
legislation by the Member States designed to bring about additional protec
tion by way of social security for the benefit of migrant workers.
If a prohibition of the simultaneous application of two national systems of
legislation concerning workers cannot be established in the absence of a
specific provision for that purpose, there is all the more reason why this should be so when one of the systems, far from being intended only for work
ers, applies without distinction to the whole population by virtue of a criter
ion depending not on the exercise of a wage-earning activity but on residence
alone. Articles 48 to 51 of the Treaty, which are incorporated in the Chapter headed 'Workers', and which constitute the foundation, the framework and the limits of Regulation No 3, provide no authority for prohibiting a State from granting additional protection by way of social security to its whole population including those of its nationals who work in another member
country.
For the foregoing reasons, Article 12 of Regulation No 3 does not prohibit the application of the legislation of a Member State other than that in which
NONNENMACHER v SOCIALE VERZEKERINGSBANK
the person concerned works, except to the extent that it requires that person
to contribute to the financing of a social security institution which is unable to provide him with additional advantages in respect of the same risk and of
the same period.
Consequently it is permissible for States, other than that in the territory of which the insured person is employed, to provide or not to provide for the grant of rights to benefits in favour of that person even if he enjoys, in respect
of the same risk and period, similar rights under the legislation of the State in which he works.
2. The Centrale Raad asks the Court in the second part of its question to
say whether, to the extent that Article 12 excludes the application of the
legislation of other States, this rule is subject to an exception when in fact the
person insured or his dependants cannot assert any right on the basis of the legislation of the State referred to in the said Article.
It follows from the foregoing considerations that Article 12 does not prohibit other States from allowing those concerned a right to benefits.
3. The costs incurred by the Commission of the EEC which has submitted its observations to the Court are not recoverable.
As the proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action before the Centrale Raad van Beroep it is for that court to make a decision as to costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the European Economic Community; Upon hearing the opinion of the Advocate-Gnral;
Having regard to Articles 48 to 51 and to Article 177 of the Treaty establish
ing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of lb December 1958, p. 561 et seq.), and particularly Article 12;
Having regard to the Rules of Procedure of the Court of Justice of the
European Communities;
JUDGMENT OF 9.6.1964 — CASE 92/63
THE COURT
in answer to the question referred to it for a preliminary ruling by the Cen trale Raad van Beroep, forwarded by a letter of 16 October 1963 from the
acting President of that Court,
hereby rules:
1. Article 12 of Regulation No 3 of the Council of the EEC
concerning security for migrant workers (Official social
Journal of 16 December 1958, p. 561 et seq.) does not prohibit Member States other than those in the territory of which wage-earners or assimilated workers are employed from
applying their social security legislation to such persons.
2. It is otherwise only if a Member State, other than that in the
territory of which the worker is employed, requires him to contribute to the financing of an institution which would not accord him supplementary protection by way of social
security in respect of the same risk and of the same period.
3. The decision on costs is a matter for the Centrale Raad van Beroep.
Donner Hammes Trabucchi Delvaux Rossi Lecourt Strauß
Delivered in open court in Luxembourg on 9 June 1964.
A. Van Houtte A. M. Donner Registrar President
OPINION OF MR ADVOCATE-GENERAL LAGRANGE <ap note>1</ap note> DELIVERED ON 17 APRIL 1964
Mr President, the Centrale Raad van Beroep refers
Members of the Court, to you for a preliminary ruling a ques
tion concerning the interpretation of
For the second (and not the last) time, Regulation No 3 concerning social
1 — Translated from the French.