C-24/64

JUDGMENT OF THE COURT <ap note>1</ap note> 2 DECEMBER 1964

Miss A. M. Dingemans <ap note>2</ap note> v Bestuur der Sociale Verzekeringsbank­

(reference for a preliminary ruling by the Centrale Raad

van Beroep)

Case 24/64

Summary <ap note>3</ap note> 1. Procedure — Preliminary Ruling — Jurisdiction of the Court — Limits­

the Council of the EEC concerning Regulation.

In Case 24/64

Reference to the Court under Article 177 of the EEC Treaty by the acting President of the Centrale Raad van Beroep (Central Court of Appeal),

being the Netherlands court of last instance in social security matters, in pursuance of an order of that court of 9 April 1964, in the action pending before it between

1—­ Language of the Case: Dutch. 2—­ CMLR.

3—­ Cf. Summary, Case 100/63, Rec. 1964, paragraph 1, p. 565; Summary, Case 6/64, Rec. 1964, paragraph 1, p. 585. 4—­ Cf. Summary, Case 100/63, loc. cit., paragraph 2.

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 Decem­ ber 1958, pp. 561 et seq.),

THE COURT

composed of: Hammes, President, A. M. Donner and R. Lecourt, Ch. L. President of Chambers, L. Delvaux, A. Trabucchi, W. Strauß (Rap­ porteur) and R. Monaco, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

Regulation be interpreted so as to periods of insurance, but includes regard the Interimwet (that is, the the invalidity pension claimed by Interimwet Invaliditeitsrente­ the beneficiary, the amount of

trekkers (IWI), —

the law on which depends upon the duration persons in receipt of disability of the periods of insurance). In the Netherlands law Ques­ pensions a of event of a negative reply to —

19 December 1962) as "legisla- tion 2:

DINGEMANS v SOCIALE VERZEKERINGSBANK

3. Must the supplementary pension sum as would bring the supple­

tion then be applied in order to referred to in Article 3 (2) of this

determine the amount of the sup­ Regulation, and without any need for plementary pension? This is a an amendment to Annex B to the

point of view which the defendant Regulation. The defendant thus fixed has adopted as a subsidiary argu­ the amount of the supplementary ment referring to the second ques­ pension referred to in Article 5 (a) tion which the Raad put to the of the IWI, in pursuance of Article Court of Justice of the EEC in its 20 (1) (b) of Regulation No 3, pro rata letter of 11 November 1963, No with the length of the insurance AWW 1963/4, 5, 8, 9, 12, 13, 14, periods completed in Holland as 26.'

15, 25 and compared with the total length of

periods completed in Holland and in 2. The above-mentioned Order is Germany, thus fixing the sum at a based in particular on the following figure 66/447ths of 3924 guilders

considerations: rounded off to a multiple of 6 guilders,

Republic of Germany on social secu­ the EEC.

rity in order to reach the invalidity The hearing was opened on 15 October period required by the first para­ 1964. graph of Article 71 of the IW. The Advocate-General delivered his

By a decision of 16 August 1963, the opinion at the hearing on 3 November respondent granted the appellant a 1964.

supplementary pension with effect from 1 January 1963 under the Law of III —

Summary of the observa­

19 December 1962, Staatsblad 534, tions of the Commission which laid down transitional pro­ visions for persons entitled to an The observations submitted by the

this should be answered in the affirma­ where the person concerned has taken

tive. Within the meaning of Article 2(1) into account his insurance periods under Type A In the in (b) of the Regulation, the IWI refers to exclusively. case

it has been established that the 'invalidity benefits, including benefits question

granted for the purpose of applicant was also insured in the Federal maintaining Republic of Germany, whose legislative or improving earning capacity, other than those paid in respect of industrial provisions belong to Type B. In prin­

accidents or occupational diseases'. ciple, Article 28 is consequently ap­

in Case plicable whether the Netherlands law Moreover, as 100/63, the adop­

certain discretion in the classification of It is possible to summarize these ques­

their relevant provisions. tions as one and to consider them in In fact, all the legal provisions which this form. make the calculation of the payment of

(a) Admissibility of these questions benefits dependent, even partially, on

the insurance periods are classified under 1. It may be asked whether these Type B. questions, as formulated, do not in Since the IW indisputably belongs to interpreta­ reality relate to a question of Type B, the classification of the IWI tion of national law, in this case an gives rise to difficulties. According to examination of the method of calcula­

that Law the supplementary pension is tion selected by the Netherlands legis­ calculated on the basis of a sum total, lature. The notion that such an exa­

composed of the pension and the supple­ mination should be reserved to Member mentary pension, the amount of which States is defensible and Article 24 (2) of does not depend on insurance periods the Regulation, Annex F to which but on the degree of incapacity for work. determines with regard to each state to Certainly, in this method of calculation, what Type its legislation or invalidity the amount of the supplementary pension insurance belongs, indicates this. depends indirectly on insurance periods, It is however possible to interpret the because it constitutes the difference questions so that they refer to the between the total amount and the meaning to be given to the definitions pension (fixed on the basis of the provided by Article 24 (1) of 'provisions insurance on the other hand A' periods); of Type and 'of Type B'. the figure of the total amount does not

it inde­ benefits fusion, since requires a reply of determining entitlement to

pendent of the question to which Type under this Regulation', while the second

the legal provisions at issue belong (cf. of these provisions 'gives the right (at the above, B, (a), 2). request of the person concerned) to a (b) T he question should be examined review of a pension calculated before in the light of the judgment in Van der Regulation into force'. 'Con­ this came

Veen (Case 100/63) in accordance with sequently', the Commission concludes, which Article 28 of the Regulation (and 'the right to a Netherlands pension

consequently the percentage which it could have arisen retroactively, at 1 provides for) are only applicable when July 1953, under Article 27 (1) if there they concern 'the acquisition, mainten­ had been no prior German-Netherlands benefit'

ance or recovery of the right to Treaty in existence'. within the meaning of Article 27. These considerations are logical; never­

the IW is only acquired if the insured insured person was entitled to a pension person has made not less than 150 under the IW, and that consequently weekly contributions. On the other the acquisition of rights under the IWI

hand, the appellant's right to benefits on remains independent of the existence of the basis of the IWI arises out of her the German insurance periods.

entitlement to an invalidity pension. Consequently it is not necessary to

The defendant and the Raad van Beroep apply Article 27 of the Regulation; in Amsterdam, have clearly started with accordance with the decision in Case the following reasoning: in order to 100/63, Article 28 (1) (b) is not applic­

admit the right of the appellant to a able, so that the Netherlands institutions pension from 1 July 1953, it was neces­ are wrong, in invoking the latter pro­

sary to refer to the German insurance vision, to reduce the benefit due on the

In a note, the Commission refers to Regulation No 3'. In this case the

Article 53 (2) and (4) of the Regulation. application of Article 28 would involve

According to the first of these provi­ lower benefits: until 27 February 1955, sions, 'all insurance periods completed the applicant paid 150 contributions; under the legislation of a Member even if, under the German-Netherlands

JUDGMENT OF 2.12.1964 — CASE 24/64

Treaty the effect of which was continued Commission sees the position as folows:

by Article 27 (1) of the Regulation, the 1. Article 28 (1) (f) is a priori inapplic­ Netherlands authorities had not effected able, since the appellant fulfils the

aggregation). In this case, Article 28 (3) 2. Opinions on other questions provides for an additional pension, equal in­ to the difference, in favour of the

(a) The Centrale Raad van Beroep sured person.

ought not to have adopted implicitly As has already been said (I, C, (c), the opinion of the court of first instance, above), on the basis of the Netherlands in accordance with which Article 28 (1) legislation alone, the appellant would

(f) and (3) of the Regulation are not have been entitled from 1955 to an

applicable, but should have submitted invalidity pension and 1962 she from these questions, which are important would have been entitled to the entire

for Court. The Com­ benefit this case, to the sum of the accorded by the

By this question, the Centrale Raad asks the Court to say whether Articles 1 (b), 2 (1) (opening words) and (b) and Article 3 of Regulation No 3 must be interpreted 'so as to regard the IWI as "legislation", even though this Law was promulgated after the Regulation and was not notified in accord­

ance with Article 3 (2)'.

1. It appears from the information supplied by the Centrale Raad van Beroep that the IWI provides for invalidity insurance with invalidity benefi­ts.

Under Article 2 (1) (opening words) and (b) of Regulation No 3, the

Regulation 'shall apply to all legislation governing invalidity benefits, …

including benefits granted for the purpose of maintaining or improving earning capacity, other than those paid in respect of industrial accidents or occupationaldiseases'. Annex B to the Regulation, entitled 'Legislation to which the Regulation applies', refers, in paragraph(b) of the section relating to the Netherlands, to 'invalidity insurance, including increases in pensions'. The Regulation is therefore applicable to all Netherlands legislation providing for invalidity insurance with invalidity benefits, with

possible for any Member State to interfere arbitrarily with the field of application of Regulation No 3, by failing to carry out the above-mentioned notification. Besides, under Article 3 (2) of the Regulation, an obligation to notify exists only in the the adoption legislation necessi­ case where of new 'amendment' tates an to Annex B. Such is not the case when the legislation comes under one of the headings set out in Annex B.

It follows from the considerations set out above that all Netherlands legis­

lation providing for invalidity insurance with invalidity benefits, with the exception of benefits granted in respect of industrial accidents or occupa­

tional diseases, constitutes legislation within the meaning of the above

JUDGMENT OF 2.12.1964 — CASE 24/64

quoted provisions of Regulation No 3 even though the said legislation came into force after the Regulation and was not notified.

III — As to the Third and Fourth Questions

The reply given to the second question makes the third and fourth questions pointless. However, because of Articles 26 (1), 25 and 24 (1) of Regulation No 3, the said reply involves the possibility of applying Articles 27 and 28 of the Regulation 'by analogy'. The Centrale Raad, having already made a previous request (Case 100/63) for a preliminary ruling asking the Court to interpret these provisions, was not obliged to raise the question again in the present case. As a result, it is sufficient to recall the interpretation sup­ plied in paragraph 2 of the operative part of the judgment given in that case (Rec. 1964, p. 1128), namely that Article 28 is applicable only if it is a

question of the acquisition, maintenance or recovery of the right to benefit.

IV — Costs

The costs incurred by the Commission of the EEC which has submitted its observations to the Court are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action

pending before the Centrale Raad van Beroep, the decision as to costs is a matter for that court.

lished in the OJ of 14 February 1964, p. 450;

Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the questions referred to it by the Centrale Raad van Beroep by decision of 29 April 1964

her by:

1. Rules that the expression 'legislation' used in Article 1 (b), Article 2 (1) (opening words) and Article 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 any Nether­ lands legislation making provision for invalidity insurance with invalidity benefits, with the exception of benefits granted in respect of industrial accidents or occupational

3. Rules that the decision as to the costs of these proceedings is a matter for the Centrale Raad van Beroep.

Hammes Donner Lecourt Delvaux Trabucchi Strauß Monaco

Delivered in open court in Luxembourg on 2 December 1964.

A. Van Houtte Ch. L. Hammes

Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND <ap note>1</ap note> DELIVERED ON 3 NOVEMBER 1964­

advisable, so far as the vagueness of the ruary 1955, on the ground that she had file allows, to establish certain points of not made the statutory number of pay­

fact in the action pending before the ments at the date of her application.

Netherlands court which has now been That number was later reached on 27 made the subject of the reference to February 1955, and she then brought a this Court. new application which was related back Miss Dingemans, a Netherlands na­ to the date of the first application, tional, worked in Germany and after­ namely 17 July 1953. It was in fact wards in the Netherlands. In the former admitted that on the latter date she had

country she was insured against the risk reached the minimum of 150 weekly ofinvalidity under Type B legislation, contributions, if the periods of insurance within themeaning of Article 24 (1) (b) completed in Germany and in the

of the Regulation (that is, legislation Netherlands were aggregated, as laid under which invalidity benefits are as a down in the German-Netherlands Con­ rule calculated in relation to the dura­ vention of 29 March 1951. tion of completed periods), and since A Netherlands invalidity pension was 1946 she received a German monthly in­ accordingly granted to her by a decision

validity pension. Returning subse- of the Raad van Arbeid (Industrial