C-33/65
ECLI:EU:C:1965:118
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JUDGMENT OF THE COURT <ap note>1</ap note> 1 DECEMBER 1965
Adrianus Dekker <ap note>2</ap note> v Bundesversicherungsanstalt für Angestellte
(Reference for a preliminary ruling by
the Landessozialgericht, Berlin)
Case 33/65
Summary
/. Procedure — Preliminary ruling — Jurisdiction of the Court — Limits (EEC Treaty, Article 177)
2. Free Migrant insurance Sick of persons movement — workers — Social —
ness and maternity Benefits — in kind within the meaning of Article 22 of Regulation No 3 Concept —
1. Cf. paragraph 1, Summary, Case in respect of a specific case of sick
24/64 (Rec. 1964, p. 1263). ness or maternity and does not apply to supplementary pension payments kind' 2. The expression 'benefits in intended as a contribution to the Within the meaning of Article 22 of financing of the beneficiary's sick
Regulation No 3 refers to benefits ness insurance.
In Case 33/65
Reference to the Court under Article 177 of the EEC Treaty by the Landes
sozialgericht, Berlin, for a preliminary ruling in the action pending before that Court between
ADRIANUS DEKKER , engineer, residing at Utrecht (Netherlands),
plaintiff,
and
BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE , Berlin,
defendant,
on the interpretation of Article 22 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561), 1 — Language of the Case: German. 2 — CMLR.
JUDGMENT OF 1. 12. 1965 — CASE 33/65
THE COURT
composed of : Ch. L. Hammes, President Strauß (Rapporteur), President ,W.
of Chamber, A. M. Donner, R. Lecourt and R. Monaco, Judges,
Advocate-General: J.Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure 'The plaintiff is of Netherlands
nationality and has been living at
The facts and procedure may be sum Utrecht in the Netherlands since
marized as follows: November 1958. 1. By letter dated 20 May 1965 the On the basis of his claim made on 24
Landessozialgericht, Berlin, in accord April 1950, he by a was granted, ance with title decision of its IXth decision of the defendant dated 12 July incapa Senate of 28 April 1965, requested the 1950, a pension on account of
Court of Justice to give a ruling on city for work as from 1 May 1950. the following question: By a decision or 8 June 1959, the
'Does the defendant recognized the plaintiff's payment of the sickness
insurance entitlement to an old-age pension with contribution provided for by Section 381 Reichsver effect from 1 January 1957 as he had (4) of the attained the age of 65. However sicherungsordnung (RVO) fall within ....
the "benefits in kind" mentioned in the pension continued to be paid to
Article 22 Regulation No 3 the him at the former rate, because the of of
European Economic new pension rate was less than Community, which ....
German pensions insurance institution the amount previously paid. a
is required to pay to a pensioner insured Up to 6 November 1958 the plaintift
institution was resident at Aurich (East Friesland). with a sickness insurance in another Member State?' Until 30 November 1958 he was
The court the question voluntarily insured against sickness with referring states Ortskrankenkasse" the "Allgemeine in the legal grounds for this decision as Aurich. The defendant contributed to follows: this sickness insurance under Section 'Which among the benefits paid by a 381 Reichsversicherungs- (4) of the pensions insurance institution fall within (RVO). On 30 November kind" ordnung the description "benefits in in 1958 the insured against sick plaintiff Article 22 of EEC Regulation No 3 "Algemeen Provinciaal ness with the can, in view of the need for the utmost Ziekenfonds voor Utrecht en Omstre
possible reciprocity, be determined ken". decision 20 June By a of
only by reference to the internal law 1962 the defendant refused pay for to States.' of all Member Section 381 (4) this contribution under
2. The decision concerned contains the of the RVO for this sickness insurance, following summary of the facts on on the ground that the payment of this
which it is based: contribution could be made only to
DEKKER v BUNDESVERSICHERUNGSANSTALT FUR ANGESTELLTE
an insurance institution with its head of care, including the administration of office in the Federal Republic of medicine, to which the person insured Germany. in respect of sickness or maternity is The plaintiff instituted proceedings for entitled.'
This distinction is necessary rescission of the defendant's decision to delimit the respective roles of the
of 20 June 1962, and for an order that institution to which the insured person
the defendant should pay the contribu is affiliated and the institutions in what tion for the sickness insurance (DM ever other Member State the insured 17.40 per month) from 30 November person receives treatment, according to
1958. By a decision of 3 June 1964, the circumstances. Under these pro
the Sozialgericht, Berlin, upheld this visions, cash benefits are always paid
claim for the period from 1 April 1961. by the first institution and in accordance The defendant appealed against this with the conditions laid down by the
decision to the Landessozialgericht, legislation applying to it, whilst bene Berlin.' fits in kind are issued by the institution
3. Of of the country in which the insured the parties referred to in Article 20 of the Protocol on the Statute of the person is to receive treatment, in
Court Justice accordance With the provisions laid of of the EEC, only the
EEC Commission submitted written down by the legislation of that country. In addition, these Articles lay down the observations.
conditions under which an institution The oral procedure before the Court is institu required to reimburse another of Justice took place on 12 October 1965. The Advocate-General tion for the amounts disbursed by the delivered his opinion on 4 November 1965. latter. Article 22 only adapts this system to bene the sickness insurance of the II — Arguments and obser ficiaries of pensions. It is based on the Com idea the 'very simple'
vations of that a pensioner who, mission of the EEC in accordance with the legislation
applicable, is entitled to benefit from The arguments contained in the an insurance against the risk of illness Com his condition observations submitted by the must receive the care that
mission in accordance with the second requires, wherever he lives or is tem
paragraph of Article 20 of the Protocol porarily residing, when the risk against Statute Court Justice (parti on the of the of which he is insured materializes
of the EEC may be summarized as cularly in case of sickness).
follows : 2. It follows mat by benefits in Kind'
The Commission replies in the nega there is meant only the treatment which tive to the questions referred to the is actually given to an insured person
Court; the reasons on which it relies when the risk against which he is in support of these arguments are in insured (particularly sickness) material
essence the fol wing: izes. On the other hand, contributions
1. Article 22 of Regulation No 3 forms such as that which is the subject of
part of the Chapter insur the present case are not included in concerning Maternity' ance for 'Sickness, (Article 'benefits in kind'; these contributions
16 to 23). 'The coordination of national are intended only to constitute and
sickness insurance systems arranged by maintain insurance against the risk of
this Chapter is based distinction independ on the sickness since they are paid
between cash benefits (payments to ently of the materialization of that risk.
compensate for the loss of wages) and The contrary proposition would lead to
benefits in kind which cover all types absurd results or would have to have
JUDGMENT OF 1. 12. 1965 — CASE 33/65
recourse to less convincing arguments: To avoid this contradiction it would
— The role which Regulation No 3 be necessary to allow the inclusion kind' lays down for institutions in the among 'benefits in of that part
place of permanent residence or the of the cost of the voluntary insurance place of temporary residence in the in the Netherlands which in the pre
kind' issue of 'benefits in 'would be sent case is borne by the Dutch absurd if, among the latter, were in institution (Algemeen Provinciaal cluded contributions intended to Ziekenfonds voor Utrecht en
finance insurance'. Omstreken) and to require the com
— It one tries to apply Article 22 to petent German institution to make
the contribution in dispute, one reimbursement of those costs under
immediately finds oneself in conflict Article 22 (3); according to that
with the first two paragraphs of that Article, such a right of reimburse
Dutch institu Article, according to which benefits ment belongs to the
in kind are issued by the institution tion, but never to the person con
of the place of permanent residence. cerned.
Grounds of judgment
I — The jurisdiction of the Court
The Landessozialgericht, Berlin, asks the Court, 'in accordance with sub
paragraph (b) of the first paragraph of Article 177 of the EEC Treaty', to
rule whether the supplementary contribution for sickness insurance provided for by section 381 (4) of the Reichsversicherungsordnung (German law con
cerning insurance) is included in 'benefits in kind', within the meaning of Article 22 of Regulation No 3, 'which a German pensions insurance institu tion is obliged to pay to a pensioner affiliated to a sickness insurance institu State.' tion in another Member
Under the terms of subparagraph (b) of the first paragraph of Article 177 of the EEC Treaty, the Court has jurisdiction to give preliminary rulings upon the interpretation of an act of a Community institution.
On the other hand, the interpretation of the national law of Member States is outside the framework of the powers conferred upon the Court by Article 177.
It follows that the Court is not competent to rule on the interpretations of the Reichsversicherungsordnung, but the reference involves a question of the interpretation of Regulation No 3, which it is appropriate to extract from the specific data supplied by the Landessozialgericht.
DEKKER v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
II — The substance of the case
Regarded from this point of view, the substance of the question is whether 'benefits in kind', within the meaning of Article 22 of Regulation No 3, include supplementary pension benefits which are intended as a contribution towards the financing of the beneficiary's sickness insurance.
'benefit' Regu Article 2 of Regulation No 3 lists the types of to which the 'benefits' lation applies, and relates each of those to the occurrence of an 'maternity' actual risk ('sickness', etc.).
This emerges particularly clearly from the German version which mentions, Krankheit' for example, 'Leistungen bei (benefits in case of sickness).
Chapters 1 to 7 of Head III of the Regulation, which contain particular pro
visions concerning each of the abovementioned risks, deals with each in the same order as they appear in Article 2.
In these circumstances it is evident that, where the provisions of those
Chapters use the concept of 'benefit', they refer to benefits to be granted on the occurrence of the specific risk to which the Chapter in question relates.
Further, as Article 22 is found in Chapter 1 of the Head in question under the heading 'Sickness, Maternity', it appears that the concept of 'benefits in
kind', which appears in the said Article, means benefits which are to be granted on the occurrence of an actual case of sickness or maternity.
This reasoning is reinforced by both Article 19 (5) of the Regulation, which refers to 'the provision of prostheses, major appliance and other substantial
benefits in kind', and Article 22 (6), by which 'the beneficiary . . . shall be entitled to the benefits in kind during temporary residence in the territory of a Member State other than his country of permanent residence'.
There is further support for this interpretation in the basic principle of kind' Article 22, according to which 'benefits in shall be issued by the in
stitution of the place in which the person concerned permanently or tem
porarily resides, regardless of which authority is in the final analysis liable to bear the cost of such benefits.
In fact the said principle is totally consonant with the aim of Chapter 1, in question here, which is to ensure that medical assistance is available as rapid
ly and effectively as possible to any worker who needs it. The expressions 'immediate' and 'extreme appearing in Article 19 (1) and (5) urgency'
re
make this aim particularly clear. spectively
JUDGMENT OF 1. 12. 1965 — CASE 13/65
It follows from these considerations that benefits such as those forming the kind' subject-matter of the present request cannot amount to 'benefits in
meaning of Article 22 of Regulation No 3. Consequently the ques within the
tion put by the Landessozialgericht, Berlin, must be answered in the negative.
III — Costs
The costs incurred by the Commission of the EEC which has submitted
observations to the Court are not recoverable.
As the proceedings are, in so far as the parties to the main action are con
Landessozial cerned, in the nature of a step in the action pending before the gericht, Berlin, the decision on costs is a matter for that court.
On those grounds,
Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the EEC; Upon hearing the opinion of the Advocate-General;
Having regard to the Treaty establishing the European Economic Commu nity, especially Article 177; 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 16 December 1958, p. 561 et seq.), especially Articles 2, 19 and 22; Having regard to the Rules of Procedure of the Court of Justice of the
European Communities;
THE COURT
in answer to the question referred to it by the Landessozialgericht, Berlin, by an order of that court of 28 April 1965,
hereby rules:
I. Supplementary pension payments which are intended as a contribu
financing of the beneficiary's sickness insurance do not tion to the kind' fall within the meaning of the expression 'benefits in in Article 22 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December
1958, p. 5 61 et seq.);
DEKKER v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
2. The decision on costs is a matter for the Landessozialgericht, Berlin.
Hammes Strauß Donner
Lecourt Monaco
Delivered in open court in Luxembourg on 1 December 1965.
A. Van Houtte Ch. L. Hammes Registrar President
OPINION OF MR ADVOCATE-GENERAL GAND <ap note>1</ap note> DELIVERED ON 4 NOVEMBER 1965
Mr President, lands and effected a sickness insurance, Members of the Court, again voluntary, with a Netherlands institution, the payment of this amount The Landessozialgericht, Berlin, an was withdrawn, on the ground that the
appeal court on social questions, asks sickness insurance institution did not
you, on the basis of subparagraph (b) have its head office in the Federal of the first paragraph of Article 177 of Republic of Germany, a condition
interpret Reichsversicherungs the Treaty of Rome, to the required by the
provisions of Article 22 of Regulation ordnung.
No 3, concerning social security for On Mr Dekker s objecting to this, the migrant workers, relating to the issue Sozialgericht, Berlin, upheld his claim
to the beneficiary of pensions of bene chiefly on the basis of the provisions
fits in kind under sickness insurance. of Article 22 of Regulation No 3. On In order to understand the scope of the appeal, the Landessozialgericht felt question, it is as well to recall how the obliged to ask you whether a portion
dispute giving rise to the reference came of the sickness insurance contribution
about. Mr Dekker, who is of Nether provided for by Section 381 (4) of the lands nationality, obtained from the German Law was included among the kind' Bundesversicherungsanstalt fur Ange 'benefits in mentioned in Article
stellte, a German old-age insurance 22, which a Germain pension insurance basis institution is obliged to issue to a bene institution, a pension on the of
incapacity for work; which was changed ficiary of a pension affiliated to a sick
into an old-age pension with effect from ness insurance institution in another
1 January 1957. He also effected a Member State. In order to remain
voluntary sickness insurance with a within the limits of your jurisdiction in German sickness insurance fund. Under answering the question thus raised, you
Section 381 Reichsversiche (4) of the must, of course, restrict yourselves to
rungsordnung the old-age insurance interpreting the Community provisions, institution paid him a portion of the on which my observations can be cost of his sickness insurance contribu brief. tion. But when in November 1958 Mr Although Chapter 1 (Sickness, Mater
Dekker went to reside in the Nether- nity) of Tide III of the Regulation
1 — Translated from the French.