C-33/64

In Case 33/64

Reference to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtbank, Assen (Netherlands), for a preliminary ruling in the action pending before that court between

BETRIEBSKRANKENKASSE DER HESEPER TORFWERK GMBH, Meppen/Ems (Germany), plaintiff, and

MRS EGBERDINA KOSTER (NÉE VAN DIJK), widow, residing in Klazienaveen, Parish of Emmen (Netherlands), defendant, 1 -Language of the Case: Dutch. 2 -CMLR.

JUDGMENT OF 11. 3. 1965—CASE 33/64

on the interpretation of certain provisions of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant workers (Official Journal of 16 December 1958, pp. 561 et seq.),

I — Questions submitted to tim of the accident in question which the Court had no connexion with his work and which did not take place whilst he By judgment of 25 July 1964 the Arron­ was travelling from his place of work dissementsrechtbank, Assen, requested to his home or vice versa? the Court to give a preliminary ruling The Assen court regards the following on the following questions: facts as established: — on 8 July 1961, a collision took place 1. Must the first paragraph of Article at Emmen (Netherlands) between a 52 of Regulation No 3 concerning car driven by Mr Klein, who at that social security for migrant workers be time was employed by the defendant, regarded as applicable even before and a motor-cycle ridden by Mr de the entry into force, between the Munnik, who was injured; Member States concerned, of the — at the time of the accident Mr de bilateral agreement provided for in Munnik lived in the Netherlands, al­ the second paragraph of that Article? though he was a wage-earner em­ 2. Must the first paragraph of Article ployed by the Heseper Torfwerk 52 of the said Regulation be regarded GmbH in Germany; as applying also to a case similar to — the accident occurred on a day off, that of Joh. F. de Munnik, who was while Mr de Munnik was neither working in the Federal Republic of going to his place of work nor re­ Germany for an employer established turning home; in the frontier zone of that country, — the plaintiff, the social security in­ but who lived at Zwartemeer, in the stitution of Mr de Munnik's em­ frontier zone of the Netherlands, ployer, paid Mr de Munnik the sum where he regularly returned once a of 4 818.13 DM; this sum includes week, and who was, during his own compensation for sick leave and un­ time and in his own country, a vic- employment benefit.

The file shows that before the Arron­ The oral procedure took place on 1 dissementsrechtbank, Assen, the parties December 1964. advanced the following submissions and The Advocate-General delivered his arguments in particular: opinion on 17 December 1964. The applicant, the Betriebskrankenkasse der Heseper Torfwerk GmbH, states — that Mr Klein—and because of this III — Observations submit­ his principal, the defendant in whose ted in accordance with service he was at the time of the Article 20 of the Pro­ accident—is responsible for the in­ tocol on the Statute juries suffered by Mr de Munnik; of the Court of Jus­ — that, in accordance with the German tice of the EEC legislation, the applicant is subroga­ ted to Mr de Munnik in his claims The observations mentioned above may against the defendant; be summarized as follows: — that in accordance with subparagraph (a) of the first paragraph of Article 1. Observations of the plaintiff in the 52 of Regulation No 3, which was main action already applicable, every Member State is obliged to recognize such A— As to the first question subrogation. The defendant, Mrs Koster, replies: This question must receive an affirma­ — that the said Article 52 is inapplic­ tive answer. able in the present case, no agree­ In accordance with Article 88 of Regu­ ment such as that provided for in lation No 4 of the Council of the EEC the last paragraph of this provision (Official Journal of 16 December 1958, having been made between Germany p. 626), Regulation No 3, including and the Netherlands; Article 52, came into force on 1 Janu­ — that it is inapplicable also because ary 1959. The said Article 88 replaced Mr de Munnik is not a migrant Article 56 of Regulation No 3; the worker, but a frontier worker within terms in which Article 88 derogates the meaning of Regulation No 3; from Regulation No 3 confirm the that under Article 4 (3), the Regula­ directly applicable nature of the pro­ tion is not applicable to frontier vision in question. workers in so far as the benefits to Moreover, the fact of stating that im­ which they are entitled are governed plementing measures may be taken im­ by the special provisions of a social plies that what should be applied al­ security Convention for such workers; ready exists, that is to say, is in force. and that such a convention exists be­ tween Germany and the Netherlands. B — As to the second question

2. Observations of the Government of 1. In the absence of express provision the French Republic for immediate applicability, such as exists for other provisions, this Article The French Government adopts a posi came into force together with the whole tion only on the first question. of Regulation No 3. It would thus be It deduces from the wording of Article difficult to accept that the authors of 52 that the rights provided for in the the Regulation wanted to delay the first paragraph come into existence as coming into force of the said Article from the entry into force of Regulation until the various successive dates on No 3 but cannot be exercised until the which the bilateral agreements were time when the bilateral agreement pro

mission points out: Such is not the case, the rule in ques — that in Regulation No 3 Article 51 tion being sufficiently clear and com and Article 52 are the only examples plete not to require measures to be of new rules of law made by the taken in implementation of it. This is Community legislature which rely for corroborated by the bilateral agreements which have been concluded between their application on classical bilateral conventions to be concluded in the certain Member States since the entry future; into force of Regulation No 3, and which have added nothing to Article 52; — that it is appropriate to recall that the said Regulation was first drafted as the agreement made between Germany a classical international convention and Luxembourg even declared expres sly 'that the first and second sentences and that the provision in dispute was taken without alteration from the of Article 52 … shall be fully applic

BETRIEBSKRANKENKASSE HESEPER TORFWERK v KOSTER

3. Four Member States have actually workers were not excluded from the made bilateral agreements and, in so application of the provisions of the said doing, have interpreted Article 52 Regulation except 'in so far as the bene so as not to make the rules set out fits to which they are entided are in it immediately applicable. governed or to be governed by the (d) In conclusion, the Commission is special provisions of a social security disposed to defend the argument favour Convention for such workers'. This

low)? to those categories of workers, contained — Is it applicable when the damage in the social security convention' arises from an accident which is (Official Journal of 17 December 1959, neither an industrial accident nor p. 1229). one on the road to and from work Lastly, the Council and the two Mem (see (c) below)? ber States concerned (Germany and the

Netherlands) have considered it neces to regulate cases in which the insured sary, in order to keep certain provisions person receives benefit outside the of the German-Netherlands Convention country where he is affiliated, or of 29 March 1951 (Bundesgesetzblatt, when the institutions of the two 1951 II, pp. 222 et seq.) in force in countries are involved either by pro favour of frontier workers, to make use viding assistance or by becoming re of Article 6 (2) of Regulation No 3 and sponsible for benefits.

respect. 2. As to Regulation No 36/63, Article There are moreover no provisions, con 3 thereof provides: cerning rights to benefits, which are 'The provisions of Regulations Nos 3 really peculiar to frontier workers in a and 4 shall apply in respect of persons convention between the Federal Re to whom the present Regulation applies' public and the Netherlands. As to —that is to say frontier workers—'save Article 10 of the above-mentioned Con where the latter specifically provides vention, the only one which refers ex

the question agreement which has not come about. Supposing even that it can be main Here, the reply must also be affirma tained that, by keeping in force certain tive. Articles or parts of Articles for frontier Article 52 of Regulation No 3 is drafted workers only (see Annex D to Regula in quite general terms, and thus covers tion No 3), these provisions of the Ger all the cases where the establishment of man-Netherlands Convention have be the liability of a third party may be come provisions 'peculiar to frontier sought with the aim of securing com workers', it is proper to state: pensation for damage giving rise to — that this does not prevent the appli action by a social security institution. cation of the provisions of Regula It is sufficient for it to be applicable tion No 3 concerning other benefits, that the damage has occurred in the nor of its general provisions, includ territory of a State other than that of ing Article 52; the institution which has provided bene — that the provisions of mat Conven fits, and that under the legislation ap tion concerning sickness insurance plicable to it this institution is sub remaining applicable to frontier rogated to the rights of its insured workers have nothing to do with the member against the third parity re benefits provided in the present case sponsible. by the plaintiff in the main action; These conditions are all present in this these provisions are intended, in fact, case.

Moreover, the said paragraph, in providing that 'any claims by the institution liable for payment of benefit against such third party shall be governed by the following rules', refers only to subparagraphs (a) and (b). The provisions of this paragraph are clear and capable of direct application without difficulty.

In connexion with the foregoing it should be considered whether the second paragraph of Article 52, in providing that 'Implementation of these provisions shall be the subject of bilateral agreements', may result in a derogation from the first paragraph.

It does not appear at all from Article 52 considered in its entirety that it is intended to make the implementation of the rights created by it optional by making them dependent on the conclusion of the said agreements or, at the risk of creating discrimination, of making the date of the implementation of these rights vary at the discretion of each Member State.

Moreover, the rights conferred on the national social security institutions by virtue of the first paragraph of Article 52 constitute a logical and fair counter­ part to the extension of the obligations of the said institutions throughout the entire Community as a result of the provisions of Regulation No 3.

The said first paragraph falls to be applied on the same basis and under the same conditions as those provisions.

The reason for the existence of the second paragraph lies in the caution of its authors who wished to allow the States to setde among themselves any possible details concerning the application of the provisions in order to facilitate the adaptation of the natonal law to the Community rules.

Indeed, according to the wording of that provision, it is only necessary for the person concerned to be 'in receipt of benefit under the legislation of one Member State, in respect of an injury sustained in the territory of another State' and to be 'entitled to claim compensation for that injury from a third party in the latter State's territory'.

Under Article 4 (3) of Regulation No 3 the provisions of the latter do not apply to frontier workers 'in so far as the benefits to which they are entitled are governed or to be governed by the special provisions of a social security Convention for such workers'.

It follows from the above words that the said benefits, even if they are only partly governed by Regulation No 3, remain nevertheless benefits within the meaning of Articles 2 and 4 of the said Regulation and therefore within the meaning of Article 52.

Consequently no convention may validly exclude the application of Article 52 to frontier workers.

This view is confirmed by Regulation No 36/63 of the Council of the EEC of 2 April 1963 concerning social security for the said workers (Official Journal of 20 April 1963, pp. 1314 et seq.).

According to Article 23 of that Regulation the provisions of Head IV of Regulation No 3, including Article 52, continue to apply to frontier workers.

In these circumstances Article 52 must be regarded as being applicable, since under the legislation of a Member State the person in question has received benefit in accordance with one of the headings listed in Article 2(1) mention­ ed above.

Consequently the second question asked by the Arrondissementsrechtbank, Assen, must be answered in the affirmative.

III —Costs

The costs incurred by the Commission of the EEC and the Government of the French Republic, which submitted their 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 Arrondissementsrechtbank, Assen, 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; Upon hearing the oral observations of the Commission of the EEC and of the defendant; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Com­ munity, especially Article 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community;

3. It is for the Arrondissementsrechtbank, Assen, to decide on the costs of the present proceedings.

Hammes Donner Lecourt

Delvaux Trabucchi Strauß Monaco

Delivered in open court in Luxembourg on 11 March 1965.

A. Van Houtte Ch. L. Hammes

Registrar President