C-100/63

covery of the right to benefit as re- lation concerning general insurance referred to in Article 27. in favour of widows and orphans, the These provisions also apply to legisla­ insurance periods completed by vir­

tion which does not make the amount the Netherlands law in­ tue of on

of the benefit dependent upon the validity must be assimilated to the length of the insurance period. periods completed under the said

These provisions apply only in so far legislation. as the Regulations make it possible

for the 5. The expression 'benefits already paid'

to secure persons concerned

(Netherlands), appellant,

and

BESTUUR der Sociale VERZEKERINGSBANK (Management of the Social Insurance Bank), Amsterdam,

respondent,

and in nine other cases

on the interpretation of certain provisions of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (OJ of 16 De­ cember 1958, pp. 561 et seq.),

Issues of fact and of law

I — In the present cases, the parties are Regulation, was not the subject of a the social insurance authorities and notification in accordance with

certain widows of insured persons. The Article 3 (2) ? acting president of the Netherlands court 2. If the answer to Question 1 is in the has supplied in particular the following afirmative:

information: Is Article 28 (1) (b) of the Regulation 'A pension was granted to all these applicable to determine the amount

under the Nederlandse Alge­ of the widow's pension granted under widows

Weduwen- Wezenwet the Algemene Weduwen- en We­ mene en Widows' Orphans' (General In­ "acquisi­ and zenwet, although there is no surance Law), the amount of which tion, maintenance or recovery of the benefit" however is less than the normal right to under Article 27 (1)

applies to them . . .' insurance periods completed under

In accordance with the orders referred the Nederlandse Invaliditeitswet to above, the acting president requests (Netherlands Law on invalidity) be the Court to give a preliminary ruling considered 'as insurance periods for on the following questions: the application of Article 28 (1) (b) of '1. Are Articles 1 (b), 2 (1) (d) and 3 of the Regulation? Regulation No 3 to be interpreted as "legislation" 4. Does Article 28 (1) (g) of the Regula­ meaning that the re­ tion, which refers to "benefits already

ferred to therein also includes the paid", relate solely to benefits already '

Algemene Weduwen- en Wezen­ paid on1 January 1959, the date of Regula­ wet, although this Law, adopted the entry into force of the tion?' after the entry into force of the

JUDGMENT OF 15.7.1964 — CASE 100/63

II — Procedure As to the first question:

Algemene Weduwen- actions: Mrs Van der Veen-Kalsbeek applies to the en

Sociale Wezenwet, the fact that this Law the Verzekeringsbank, Mrs and

Laux-Van Doeland and Mrs Flens­ only came into effect after the entry into burg-Molenaar. force of Regulation No 3 cannot be used Regula­ 3. The 14 as an argument for not applying hearing took place on May 1964. tion No 3 to it. At the This conclusion is reached 4. hearing of 4 June 1964 the separately Advocate-General delivered his opinion. and apart from the question whether

notice of the new legislation was given. III —Summary of the observations Annex B of the Regulation, which lists submitted in accordance with the provisions in force concerning social the second paragraph of Article security in Member States as at its entry 20 of the Protocol on the Statute into force, cannot have anything more of the Court of Justice of the EEC than declaratory significance. Thus any The Council of the EEC submits observa­ legislative provision of domestic law con­

tions only on the second and third cerning the matters dealt with by the questions asked by the Netherlands Regulation automatically come within court. It points out that Regulation No 3 its scope as from its entry into force. The Council of the was supplemented by contrary view would be tantamount to Regulation No 130/63/EEC of the giving Member States the power of Council European Com­ (OJ of the deciding how far the Regulation should munities of 28 December 1963, pp. 2996 apply.

in Article The Commission alternatively for­ et seq.), which contains, 7, puts

the subject of Case 100/63 and which comes within the expression 'legislation

the the respecting insurance against premature con­ concern rights of persons

cerned accrued due before the date of death . . .'.

the entry into force of Regulation No In the event all argument was excluded 130/63'. when the Council of the EEC adopted The Commission of the EEC submitted the Regulation No 130/63. Article 7 of that

following observations: Regulation is based on the supposition

KALSBEEK v SOCIALE VERZEKERINGSBANK

State makes the grant of a pension is that against risks, because it would not benefit conditional upon the com­ be fair for a country which has intro­

pletion of a minimum insurance duced such an insurance scheme to have period, Article 27 provides that, to bear the whole financial burden of the

for of calculating this the purposes pension.

period, the periods insured under the Besides, it is not correct to say, as do legislation of other Member States some of the parties to the main actions, must be taken into account. There­ that the Algemene Weduwen- en Wezen­

fore this provision has practical wet makes no reference to 'insurance effect only where the insured person periods'. With the definition of this

would not have a right to a pension expression in Article 1 (p) of Regulation under the law of the State concerned No 3 in mind, the Commission draws if aggregation were not applied. attention to the fact that, according to (b) On the other hand Article 28 (1) (b) the Algemene Weduwen- en Wezenwet, 'reckoned' deals with the calculation of the the insurance periods are not amount of benefit due for payment. It is for the calculation of the pension but 'defined' always applicable when an insured that they are quite certainly by person has been successively or that legislation because it 'lays down

tive implementation of Article 27. tive payment of benefits. Therefore the application of Article 3. Moreover it follows from Article 7

28 (1)(b) (does not depend on a of Regulation No 130/63 that the

need, should the question arise, to insurance authorities must unquestion­

look to Article 27 (1) in order to ably grant a pension corresponding in insurance the pension.'

establish a right to a amount to the period of

2. It is of course true that the wording person concerned either in accordance

mene Weduwen- en Wezenwet. Other considerations lead to the same

result. The Regulation is supposed to Third Question: ensure the protection of the worker. Yet It follows from Article 7 of Regulation to apply it in this case would lead to a

No 130/63 that the answer must un­ restriction of pension rights, which

questionably be in the afirmative. would not be reconcilable with such an intention. Fourth Question: Further, even allowing that the Regula­ A negative answer to this question is tion does apply, its application should called for. not result, in this particular case, in a The review of benefits already paid, for pro rata calculation under Article 28. which Article 28 (1) (g) provides, The pension granted to the appellant

Algemene Weduwen- presupposes that subparagraphs (e) and under the en

(f) have already been applied, and there Wezenwet was not granted in accord­

tions : The insurance dealt with by the Alge­ It is a fact that, as regards the Nether­ mene Weduwen- en Wezenwet and that

lands, Annex B to the Regulation dealt with by the Invaliditeitswet are 'of mentions 'insurance against premature different orders of magnitude'. In reality death, including increases'. The addi­ a fifty-year insurance period should increases'

tion of the words 'including apply to Netherlands insurance the —

and 'the combination of the intent and ideal insurance period according to the

the Nether­ Algemene Weduwen- Wezenwet wording of the provisions of en —

B' lands law referred to in Annex lead to less the insurance period covered by the the supposition that it is a question here German insurance scheme. 'The wi­

tion No 130/63 of the Council of the tion of Article 28. EEC. Article 28 is intended to prevent the

Question 4: loss of insurance periods'. However this does when there exists the Having regard to the terms of Article not apply 28 (1) (g) of Regulation No 3 'the right to an independent pension in the

conditions referred to in this subpara­ Member States in which the worker was In such a case no aggregation clearly only be taken as being employed. graph can

fulfilled 1 1959'. Subpara­ is necessary. on January deals benefits Moreover Article 28 is inapplicable also graph (g) with which

were fixed at 1 January 1959 or after by reason of the fact that the Algemene Weduwen- en Wezenwet does con­ that date. not

The appellants Laux-van Doelend and Flens­ stitute an insurance scheme based on

cessively or alternately in two or more sions'. In doing so the court forgets that Member States at a disadvantage com­ this law distinguishes between premium pared with one who has worked suc­ periods and insurance periods. The in­

cessively or alternately in Holland and surance remains in force even if, for in another country which is not a certain periods, contributions are not

Member State. In the latter case the paid; the amount of the contributions

widow of the worker receives the whole paid only affects the amount, of benefits. pension payable by virtue of the Alge­ Therefore the question ought to have Weduwen- en Wezenwet in addi­ been framed as fol ws: mene

tion to the pension to which she has a 'Where a widow's pension is to be right in the other country, whereas the granted under the Algemene Weduw­ opposite argument would lead to the en- en Wezenwet, may the insurance of worker not the periods completed under the Neder­ widow a receiving whole pension either by virtue of the landse Invaliditeitswet be taken as

Algemene Weduwen- en Wezenwet, or premium periods for the purpose of

voluntary basis. Therefore it would be have an effect on the amount of the

contrary to the legal principles of an pension payable under the Algemene insurance scheme under the Weduwen- en Wezenwet. coming

Grounds of judgment

The Court has received a request for interpretation under Article 177 of the EEC Treaty, made to it by the Centrale Raad van Beroep (Central Court of Appeal). This request is in essence directed to finding whether certain provisions of a Community regulation are applicable to a given Netherlands Wezenwet'

law, namely, the 'Algemene Weduwen- en (AWW) (General Widows' Orphans' and Insurance Law). By the said Article 177 the Court, when giving a preliminary ruling, is entitled only to pronounce on the interpretation of the Treaty and of acts of the institutions of the Community, but can neither apply them to a particular case nor give judgment by means of this Article on the propriety of a measure of a domestic character. It is

only subject to this proviso that the Court can accept the questions submitted

(1) It follows from the information supplied by the Centrale Raad van

Beroep that the AWW provides for insurance against premature death with benefits to survivors. It is therefore necessary to consider whether the

Netherlands legislation having such an objective comes within the frame­

work of the above mentioned provisions.

Under Article 2 (1) (d) of Regulation No 3, such Regulation 'shall apply to all legislation governing . . . survivors' benefits other than those paid in respect of industrial accidents or occupational diseases'. Annex B, entitled 'Legisla­ tion to which the Regulation applies', refers, under subparagraph (e) of the

section relating to the Netherlands, to: 'Insurance against premature death,

any Member State, by refraining from making the abovementioned

notification, to decide for itself the extent to which Regulation No 3 should apply. Moreover, under Article 3 (2) of the Regulation, the obligation to provide such notification only arises in cases in which the adoption of new 'amendment' legislation renders an to Annex B necessary. Such is not the

case when the new legislation comes under one of the headings used in the

said Annex.

It follows from the above considerations that the reply to the first question

asked by the Centrale Raad van Beroep is in the affirmative.

The regulations in the field of social security have as their basis, their frame­ work and their bounds Articles 48 to 51 of the Treaty which are aimed at securing freedom of movement for workers. Under Article 51 these regula­

'secure' tions for migrant workers 'aggregation, for the purpose of acquiring

and retaining the right to benefit and of calculating the amount of benefit, of taken into account under the laws of the several countries'.

all periods

The aim of this provision is to allow the migrant worker to acquire the right to benefit by the aggregation of the periods of work completed by him in

JUDGMENT OF 15.7.1964 — CASE 100/63

had not been applied.

The aim of Articles 48 to 51 of the Treaty would not be attained but disre­ garded if the worker were obliged, in order to avail himself of the freedom of

movement which is guaranteed to him, to find himself subjected to the loss of rights already acquired in one of the Member States without having them replaced by at least equivalent benefits. Although, within the framework of Article 100, the States are in a position, by approximating their laws, to bring about fairly radical changes in them, subject to the safeguards found both in the Treaty and in national law, Article 51 on the other hand cannot

allow the regulations to fall short of the objectives which it sets, which are intended to favour freedom of movement for workers and which would be incompatible with any reduction in their rights. It follows from these factors therefore that Article 28 (1) (b) is applicable under Article 51 of the Treaty only in cases provided for by Article 27, that is to say, where it is a question of the acquisition, maintenance or recovery of the right to benefit.

(2) The Centrale Raad van Beroep has next raised the question whether

Article 28 is applicable to legislation which does not make the amount of the

7 (2) provides that the amendments made by the said Article to Annex G to Regulation No 3 come into effect as from 1 January 1959. Nevertheless this retroactive effect cannot prejudice in any way the persons whose entitlement to benefit was acquired before the publication of Regulation No 130.

It follows from the above considerations that Article 28 (1) (b) also applies to legislation which does not make the amount of the benefit dependent on the duration of the insurance.

(3) Having regard to all the above, Article 28 (1) (b) is applicable only in so far as its application secures for the persons concerned benefits which

amount to at least as much as those which they would receive by virtue of the

national legislation applicable to them, considered independently of Regula­ tion No 3.

III — The third question

general insurance in favour of widows and orphans. However, this interpre­ tation is subject to the condition that such assimilation must not prejudice in any way the persons whose right to benefit has been acquired before the

publication of Regulation No 130.

IV — The fourth question

By this question, the Centrale Raad van Beroep requests the Court to state whether Article 28 (1) (g) of Regulation No 3, in using the words 'benefits already paid', relates solely to benefits already paid 'on 1 January 1959, the date of the entry into force of the Regulation'.

The provision deals with 'cases covered by subparagraphs (e) and (f) of this

paragraph'. The said subparagraphs (e) and (f) indicate the method to be followed in order to determine the amount of the benefit where the person date' concerned does not 'at a given satisfy the conditions required by all the

larly subparagraphs (e) and (f) aforementioned which are permanently date'

applicable, as is shown moreover by the phrase 'at a given quoted

above. Therefore the provisions of Article 28 are also of permanent applica­

tion.

V — Costs

The costs incurred by the Council and the Commission of the EEC which have submitted their observations to the Court are not recoverable, and as these are, in so far the parties to the main actions are con­ proceedings as

THE COURT

in answer to the questions referred to it by the Centrale Raad van Beroep by decision of 30 October 1963,

hereby rules:

KALSBEEK v SOCIALE VERZEKERINGSBANK

1. The expression 'legislation' used in Articles 1 (b), 2 (1) (d) and 3 of Regulation No 3 of the Council of the EEC concerning

social security for migrant workers (OJ of the European Communities of 16 December 1958 pp. 561 et seq.) also includes national legislation making provision for insurance against premature death with benefits to survivors, even if

(c) These provisions apply only in so far as the Regulations make it possible to secure for the persons concerned

benefits at least equal in amount to those which they would receive in each country by virtue of the national legislation applicable to them, considered independently of Regulations Nos 3 and 130 of the Council of the EEC.

3. Where, within the framework of Articles 27 and 28 of

Regulation No 3, a widow's pension is granted by virtue of the Netherlands legislation concerning general insurance in favour of widows and orphans, the insurance periods

completed by virtue of the Netherlands Law on invalidity must be assimilated to the periods completed under the

said legislation.

Delivered in open court in Luxembourg on 15 July 1964.

A Van Houtte A. M. Donner Registrar President