C-61/65

JUDGMENT of 30. 6. 1966 — case 61/65

1. The expression 'court or tribunal' in Ar­ tain concerning the voluntary and op­ ticle 177 of the EEC Treaty may in tional affiliation of former insured per­ certain circumstances include bodies sons and their survivors. other than ordinary courts of law. 5. The heading Netherlands' in Annex B to 2. Cf. para. 1, summary in Case 6/64, Rec. Regulation No 3 of the Council of the 1964, p. 1145. EEC covers both the general and the 3. Rules governing sickness insurance for special social security schemes providing workers and their survivors, laid down for insurance against sickness. and operated by an institution establish­ 6. One of the intentions of Articles 48 to 51 ed under private law, since they are of the EEC Treaty and of Regulation No 'enforceable provisions' fall within the 3 of the Council of the EEC is to prevent term 'legislation' within the meaning of territorial provisions from being applied Articles 1 (b) and 4 of Regulation No 3 against workers or their survivors in when the said provisions supplement or matters of social security. Accordingly are a substitute for laws and regulations under Regulation No 3 an institution establishing a general or special social managing a sickness insurance scheme security scheme. may not refuse to give the benefit of 4. In particular a special scheme within the affiliation to the scheme, even an option­ meaning of Article 2 (2) of Regulation al scheme, to a worker entitled to a No 3 of the Council of the EEC exists pension by virtue of the legislation of a when a specific group of workers is com­ Member State or to his survivor, if the pulsorily made subject to a special type reason for so refusing is that the person of insurance by virtue of public law. It so entitled resides permanently in a is for the national court to examine Member State other than the one in whether the conditions required for the which the said institution is situated. existence of a special scheme are met. 7. Article 22 of Regulation No 3 also ap­ Regulations Nos 3 and 4 are applicable plies to benefits given in the form of to a special scheme in its entirety, in­ reimbursement of expenses for medical cluding any provisions which it may con- treatment, medicines and nursing.

VAASSEN v BEAMBTENFONDS MIJNBEDRIJF

THE COURT

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

Advocate-General: J. Gand

Registrar: A. Van Houtte

gives the following

I — Facts in the main action — Subsequently and as a result of other in­ formation, the applicant asked for her name It appears from the decision making the to be re-entered on the list of members of reference to the Court, adopted by the the fund. The defendant rejected this re- Scheidsgerecht van het Beambtenfonds quest, relying on the former Article 18 (b) of voor het Mijnbedrijf (Arbitration Tribunal the Rules of the BFM (hereinafter called of the Fund for non-manual workers em­ 'the RBFM'), which corresponds to the ployed in the mining industry, hereinafter present Article 18 (1). called 'the Scheidsgerecht'), and from the — The applicant appealed to the Scheidsge­ file forwarded by this tribunal, that the recht against this decision. following facts form the basis of the present dispute: II — Questions asked by the — The applicant in the main action, aged Scheidsgerecht and the reasons 70, is the widow of a Dutchman employed for its decision to refer the case in mining. She is in receipt of a pension from the pension fund of the social security In its decision dated 10 December 1965 the institution known as the 'Beambtenfonds Scheidsgerecht requests the Court to rule on voor het Mijnbedrijf (hereinafter called the following questions: 'the BFM'). The BFM is the defendant in '(1) Is the scheme laid down in Chapter II the case pending before the Scheidsgerecht. (of the RBFM) to be regarded as legisla­ While she was resident in the Netherlands, tion, as defined in Article 1 (b) of Reg­ and because of her entitlement to a pension, ulation No 3 and mentioned in Article 4 the BFM registered the applicant as a mem­ thereof? Furthermore can the said ber of its sickness fund for pensioners. scheme governing sickness expenses be — On 31 August 1963 she went to live in classified as 'sickness insurance for mine Germany. In accordance with information workers (benefits in cash and in kind in furnished to her by the defendant, she asked the event of sickness and maternity)' the latter to remove her name from the list listed at (i) under the heading 'Nether­ of members of the abovementioned sick­ lands' in Annex B to Regulation No 3, ness fund. She received the reply that her to which Article 3 of the said Regula­ membership of the sickness fund had ter­ tion refers? Thus does Regulation No 3 minated since the abovementioned date, (and also Regulation No 4) apply to because pensioners resident abroad could non-manual workers employed in the not be members of the fund. Netherlands mining industry to whom

— By providing that the Scheidsgerecht Article 90 shall give judgment 'in accordance with the provisions of these rules from which 1. Every appeal shall be lodged in writing no departure may be made', Article 89 within two months after the date of notific­ (3) of the RBFM seeks to prevent the ation of the decision against which it is Scheidsgerecht from basing its decisions brought. exclusively on considerations of fairness. 2. The notice of appeal shall contain the On the other hand, the said Article can­ date of notification mentioned in paragraph not be interpreted as prohibiting the 1, a statement of the objections to the deci­ Scheidsgerecht from applying other sion and a clear indication of the relief legal provisions, such as Regulations sought. Nos 3 and 4. 3. The notice of appeal shall be signed by — In the present case the parties hold dif­ the person lodging it, or by an authorized ferent views on the question whether the representative on his behalf. latter Regulations apply to the appli­ cant's situation. The Court has therefore Article 91 jurisdiction to give a preliminary ruling on the questions thus raised. 1. The lodging of an appeal shall not stay — Whilst the Scheidsgerecht cannot be re- the effects of the decision against which it is garded as a court of law under Nether­ brought. lands law, it is not excluded that it may 2. The decision on the appeal shall, in so be regarded as a 'court or tribunal' under far as it differs from the decision against Article 177 of the EEC Treaty; this which it was brought, replace it. question is also one for the Court of Justice. Article 92

1. The Minister responsible for the mining Articles 2 and 3 industry shall, after hearing the Board [of the BFM], prescribe rules of procedure for (These provisions, for the main part, em­ the Arbitration Tribunal … power the chairman to declare appeals inad­ missible when certain requirements are not Article 95 met. They also provide that the parties con­ cerned may further appeal against such a 1. In giving each judgment the Arbitration Tribunal shall state whether and to what decision to the Arbitration Tribunal.) extent the costs of that judgment shall be Article 5 borne by the applicant. 2. The remaining costs of the Arbitration 1. Where an appeal is not dismissed by a Tribunal shall be borne by the Board of the decision of the chairman, or where such a [BFM]. decision is over-ruled pursuant to a further Article 96 appeal against it which is allowed, the sec­ retary shall send a copy of the notice of 1. The Board of Management of the Fund appeal to the Board of the BFM as soon as shall, subject to the provisions of the follow­ possible. ing paragraphs, be empowered to amend 2. Within 14 days after receipt of this notice, the Board shall send to the Arbitration these rules. 2. — 3 . . . Tribunal a copy of its decision against 4. The resolution shall require the approval which the appeal has been lodged, together of the general meeting and of the Minister with the originals or copies of all documents for the mining industry. in its possession relating to the case. 3. Within the same period the Board may Article 108 lodge with the Arbitration Tribunal the objections which it intends to present These rules together with the transitional against the appeal. A copy of the document provisions included in the same shall require containing these objections shall be sent by the approval of the Minister responsible for the secretary to the applicant. the mining industry.' 4. The Arbitration Tribunal shall afford the applicant or his authorized representative Rules of Procedure of the Arbitration the. opportunity of inspecting or taking Tribunal copies, if desired, of the documents men­ tioned in paragraph 2 above. ('Reglement voor het Scheidsgerecht') Article 6 'Article 1 1. Before giving judgment on an appeal, the 1. The date and place of sittings of the Arbi­ Arbitration Tribunal shall hear the sub­ tration Tribunal shall be determined by the missions of the parties at an oral hearing in chairman, and shall be notified by him or on cases in which it is requested to do so. his behalf to the members or, when neces­ sary, to the deputy members.

Article 8 the Court of Justice of the EEC may be summarized as follows: 1. Where the Arbitration Tribunal consid ers it desirable that the parties should 1. Observations of the defendant in the main appear in person before it, the secretary action shall summon them to attend. 2. The Arbitration Tribunal may, through A — The right of the Scheidsgerecht to its secretary, summon witnesses and experts refer the case to the Court to be heard before it. The Arbitration Tribu nal may require experts to undertake an The defendant in the main action thinks that investigation. the Scheidsgerecht is not a court or tribunal

2. These decisions shall be taken by a ma arbitration decisions within the meaning of jority of votes. the Netherlands Code of Civil Procedure, 3. The decisions shall include a statement of but that they are binding opinions. Such an the reasons on which they are based, and opinion 'must be considered as the con shall be signed by the chairman and the tractual sequel to an agreement between secretary. parties which must be determined by a third party, in this case the Arbitration Tribunal. From the point of view of legal form this Article 11 recommendation is not the decision of a court; in reality it must certainly be con The Arbitration Tribunal shall be empower sidered as if it were'. ed to lay down further rules of procedure It is important to note that under Article concerning any matters not covered by the 170 of the Constitution, the parties which present rules.' can come before the Scheidsgerecht retain the right to submit the disputes concerned IV — Procedure to the civil court. Therefore 'the binding opinion always has a provisional character In accordance with Article 20 of the Proto in the sense that there is always the possibil col on the Statute of the Court of Justice of ity that the judgment of an ordinary civil the EEC, written observations were sub court will be necessary to ensure that it is mitted by the defendant in the main action, complied with .

Thus the submitted pursuant to Article ordinary court exercises a control over the 20 of the Protocol on the Stat binding opinion even though the control is ute of the Court of Justice of somewhat remote'. It is for the ordinary the EEC court to satisfy itself that 'the arbitrators have not gone beyond the bounds of the The observations submitted pursuant to area in which they are required to exercise Article 20 of the Protocol on the Statute of their jurisdiction upon being given their

task either expressly of by implication by in the proceedings. But the other non- the parties'. manual mining employees—the group to Contrary to the opinion of the Scheidsge which the husband of the applicant in the recht, the defendant in the main action main action belonged—are not com thinks that, considering the wording of Ar pulsorily affiliated to the insurance ticle 89 of the RBFM, this tribunal has no scheme provided by the law even if not jurisdiction to apply Community law. It is insured with the BFM.

This is con (a) The defendant in the main action thinks firmed by the fact that Supplementary that Chapter II of the RBFM, which con Agreement No 2 relating to the Convention cerns the sickness fund managed by the between Germany and the Netherlands of BFM, cannot possibly be treated as 'legisla 29 March 1951 concerning social security tion' within the meaning of Regulation No deals with these two groups separately. 3. As regards this it argues in particular as Another argument which lends weight to follows: this reasoning is to be found in the fact that — These rules were drawn up by the Board a representative of the mineworkers took of Management of the BFM, and then part in the drafting of Regulation No 3 but approved by the general meeting and by no representative of the non-manual work the Minister responsible. ers-did so. — It starts with the idea that all persons employed in the mining industry are C — The second question put by the compulsorily affiliated to the BFM's Scheidsgerecht sickness fund. This obligation arises under Article 33 of a regulation of 8 The defendant in the main action thinks that September 1952 made by the Mijnindus if the Court were to give an affirmative trieraad (Council of the Mining Indus answer to the first question it should never try).

On that the rules relating to expenses incur the contrary the beneficiaries only re red through sickness by mine-workers ceive benefits in money intended as a ('Mijnwerkers'; cf. infra (b)) replace the reimbursement of the expenses which sickness insurance scheme provided by they have incurred themselves. the law. Normally these workers, as also — Affiliation to the sickness fund for pen those non-manual workers employed in sioners of the BFM only arises through the mining industry ('mijnbeambten', cf. an agreement between the management infra (b)) whose income is not above a of the BFM and the person insured; it is certain ceiling, would be included in the thus optional and takes place under pri general compulsory insurance scheme. vate law. However, Article 20 of the Law on Sick — This affiliation is independent of the ness has excluded them from this because right to a pension paid by the BFM.

JUDGMENT OF 30. 6. 1966 — CASE 61/65

curity of migrant workers and members important to note that the persons to of their family. These categories do not which the RBFM apply must be covered include a deceased worker's widow who by the BFM. has never been a worker herself and who, Because of all the above it is considered after having obtained the right to a that the RBFM constitute a scheme fall widow's pension, transfers her perma ing under public law. Therefore 'the nent residence to another Member State functions of the Scheidsgerecht are, to a without the intention of working there. large extent, comparable to those of an If it were otherwise such a person might ordinary administrative court'. take up residence in the Member State — It is true that the Scheidsgerecht is not a where she received the best treatment. board of arbitrators within the meaning — Finally and generally speaking, it is never of Article 620 of the Netherlands Code possible, at least in the Netherlands, to of Civil Procedure.

Furthermore the The Government of the Kingdom of the points just mentioned are of little im Netherlands only defines its position as portance in practice. The reality is that regards the question whether the Scheids whenever the Scheidsgerecht's decisions gerecht has the capacity to make a reference say that the RBFM have not been cor to the Court. rectly applied the said decisions are al Whilst of the opinion that the present case ways addressed to the BFM which sim does not require the Court to issue a ruling ply complies. on the capacity in this respect of arbitration — Finally the Scheidsgerecht is bound by tribunals in general, the said government the law as laid down.

Economic Affairs. The latter approval The Commission of the EEC is of the opin was required under Article 39 of the ion that this right must be accepted because Invaliditeitswet (Invalidity Law). The the Scheidsgerecht 'possesses, as an institu compulsory insurance provided for by tion, in its functions and its purpose, the the said Article need not apply to persons normal characteristics of bodies excercising whose sickness and old age pensions judicial functions and more particularly of respectively are governed by another courts having jurisdiction over social secur scheme falling under public law. This ity matters':

— The Scheidsgerecht is independent of the preted when it is applied by the BFM to BFM, its judicial characteristics being the non-manual employees in the mines clearly separated from the administra in the Netherlands. It would be unable to tive functions of the latter. It is a body of do so not only as regards the sickness a permanent nature, for the rules under fund, but also as regards the other insur which it was created could not be made ance scheme managed by the BFM, nor can they be modified without the namely the pension fund. approval of the Minister responsible — Taking into account all the matters set who, moreover, appoints the members out above, the nature of the Scheidsge of the Scheidsgerecht and lays down its recht's decisions is not decisive. rules of procedure. 'Furthermore, it seems from informa — 'The fact that it would not appear nec tion gathered, that in fact the decisions essary for the members of the Scheids of the Scheidsgerecht are never followed gerecht to be judges by profession or by contentious proceedings before an even members of the legal profession— other court or tribunal'. although at least in this case the decision was taken by professional lawyers—is of B — The first question put by the no importance'; this is a state of affairs Scheidsgerecht which often occurs in social security matters. (a) Do the rules at issue constitute — The rules of procedure applied by the 'legislation' as defined in Regulation Scheidsgerecht 'partake indisputably of No 3? the nature of court proceedings .

These seem it constitutes the only judge of these to have in common the fact that they matters. Accordingly it thus replaces, in understand by the concept here consid fact if not in law, the bodies having gen ered 'regulations made by legal persons eral jurisdiction which normally hear responsible for the management of the disputes in this area. If the request of the various branches of social security'. The Scheidsgerecht were not admissible, then Commission cites examples to show that the Court would be practically unable to 'enforceable provisions are the more im make sure that the Community legisla portant, the more the administration of tion on social security is correctly inter- social security is decentralized.

JUDGMENT OF 30. 6. 1966 — CASE 61/65

question. For Article 1 (e) of Regulation cluding those which are more favourable No 3 defining the term 'institution' says for the persons concerned than the pro that this shall mean 'the agency or au visions of the general social security thority responsible for enforcing all or scheme'. Thus for this reason alone it is part of the legislation'. This also cor necessary to dismiss the objection that responds to the internal law of the Mem the RBFM only replace the general ber States 'where many private agencies scheme in so far as the worker would be are responsible for managing a branch of compulsorily affiliated to the latter if he the social security legislation, and are were not affiliated to the BFM. also often responsible for adapting and 'But there remain other reasons for dis working out the detailed rules apper missing this objection.

the Netherlands. In considering these ered by Regulation No 3 on the ground ideas it is important to note that the that affiliation to a scheme may only be RBFM may only be altered with the optional'. Rather, it is the contrary which authorization of the public authorities results both from Article 9 of Regulation and that in order to take the existence of No 3 and from the judgment given by the this special body of rules into account it Court in Case 75/63 (Hoekstra, nee was necessary to make changes to the Unger, Rec. 1964, p. 366).

looked at as a whole, has to be applied sideration is that if one accepted the by the BFM because the Minister has argument that the RBFM do not con approved the rules.' stitute 'legislation' within the meaning of 5. In short, the Commission is of the opin Regulation No 3, this would throw ion that the provisions at issue do con doubt on the position of schemes man stitute 'legislation' within the meaning of aged according to similar rules by the Regulation No 3.

(b) The effect of Annex B to Regulation In short, the Commission is of the opinion No 3 that the reply to the first question should be in the affirmative. The Commission points out that so soon as it is accepted that the rules under discussion C — The second question put by the are legislation within the meaning of Reg Scheidsgerecht ulation No 3, the question of how they are classified under Annex B becomes a mere The Commission brings to the attention of consequential matter. For since this Annex the Court the fact that the argument is not is only declaratory (cf. the Judgment given about the possible attitude of the German by the Court in Case 24/64, Dingemans, body required both on principle and under Rec. 1964, p. 1274), one cannot begin by Article 22 (2) of Regulation No 3 to furnish observing that it covers a given set of rules . sickness benefits to the applicant. 'Thus the and go on to conclude from this that those question is not put correctly. For, given the

. . whether Article 22 of Reg ity)' proves that the regulation is intended ulation No 3 (benefits in kind payable under to apply to the rules at issue. a sickness insurance scheme to pensioners Admittedly the corresponding Dutch text not permanently resident in the country does not say 'werknemers' (workers) but competent to grant affiliation) is applicable 'mijnwerkers' (miners), an expression which although admission to voluntary insurance is often used in Dutch law with a meaning here considered is subject to the condition which excludes non-manual workers. If it (laid down by the RBFM) that the recipient were necessary to attach decisive impor must be permanently resident in the Nether tance to this fact, which is not so, non- lands. In other words the question asks manual workers in the mining industry whether this condition must be waived as would come under subparagraph (a) under regards persons covered by Regulation the abovementioned heading. Even in the No 3'. latter case it would be possible to conclude According to the Commission it follows that Regulation No 3 was drawn up with at from the spirit of the EEC Treaty, from least the desire to apply it to rules of the Regulation No 3 itself, and from previous- type here concerned, for sickness insurance cases decided by the Court that the question for mineworkers is provided by a body sim thus put must receive an affirmative answer. ilar to the BFM, which makes rules which "The elimination of all conditions of resi are comparable with the RBFM. dence constitutes one of the principles Moreover, as appears from the file for which governs social security for migrant warded by the Scheidsgerecht, the Nether workers and their families.

JUDGMENT OF 30. 6. 1966 — CASE 61/65

Grounds of judgment

I — The admissibility of the request for interpretation

The defendant in the main action asserts that the Scheidsgerecht van het Beambten­ fonds voor het Mijnbedrijf, hereinafter referred to as 'the Scheidsgerecht', is not a court or tribunal within the meaning of Article 177 of the EEC Treaty, and is therefore not competent to submit to the Court of Justice a request in pursuance of that Article for the interpretation of any of the matters therein specified.

VAASSEN v BEAMBTENFONDS MIJNBEDRIJF

The Scheidsgerecht is properly constituted under Netherlands law, and is provided for by the 'Reglement van het Beambtenfonds voor het Mijnbedrijf (RBFM) which governs the relationship between the Beambtenfonds and those insured by it.

According to the terms of the Netherlands Invalidity Law, the compulsory insur­ ance provided for by that Law does not apply to persons whose invalidity or old-age pension is provided for under the terms of another scheme which is intended to replace the general scheme. Such substitution will occur when the competent authorities declare that the substituted scheme satisfies the legal requirements and offers sufficient guarantees for the provision of pensions. Analogous provisions exist for other branches of social security. It follows that the Rules and any subsequent amendments of them must be approved not only by the Netherlands Minister responsible for the mining industry, but also by the Minister for Social Affairs and Public Health.

1. The first question put by the Scheidsgerecht

The Scheidsgerecht requests the Court to state whether the provisions of Chapter

JUDGMENT OF 30. 6. 1966 — CASE 61/65

II of the RBFM concerning the sickness fund managed by the BFM constitutes 'legislation' in the sense in which that term is used in Regulation No 3. The Court is further asked whether the said provisions are covered by Annex B of the said Regulation under the heading 'Netherlands' in subparagraph (i) and whether this Annex therefore applies to the non-manual employees in Netherlands mines covered by the aforementioned provisions.

According to Article 177 of the EEC Treaty, the Court is only empowered to give judgment upon the interpretation or validity of the Treaty and of acts of the institutions of the Community, but has no power to apply these to a specific case.

The Court must accordingly restrict itself to extracting from the question asked by the Scheidsgerecht, in the light of the facts given by that tribunal, only those matters which relate to the interpretation of the Treaty and of Regulation No 3.

VAASSEN v BEAMBTENFONDS MIJNBEDRIJF

No 3 a manifest concern not to exclude from the benefit of its provisions schemes managed otherwise than by the State, and which, at least in several Member States, cover a large proportion of the social security arrangements.

However, the defendant in the main action says that these arguments cannot be correct to the extent that if the rules at issue had not been made, the persons concerned would not be compulsorily insured by virtue of the general social security scheme. To this extent, the said provisions cannot be considered as being in substitution for the general scheme. The defendant also argues that the argu­ ments set out above do not apply to a worker's survivors, who are affiliated merely on an optional basis to the body to which the said worker was formerly compulsorily affiliated.

(b) In the second part of its question the Scheidsgerecht requests the Court to say whether a Netherlands scheme providing sickness insurance in favour of non- manual employees of the mining industry and their families is covered by Annex B to Regulation No 3, under the heading 'Netherlands' in subparagraph (i), the text of which is as follows: 'sickness insurance for mineworkers (benefits in cash and in kind in the event of sickness and maternity)'.

JUDGMENT OF 30. 6. 1966 — CASE 61/65

The defendant in the main action thinks that the reply should be in the negative. It states that the Dutch text of the above provision uses, as equivalent to the word 'workers' the expression 'mijnwerkers' which, in contrast to the expression 'werk­ nemers', only refers to manual workers and thus excludes non-manual workers.

Even supposing that this interpretation of the term 'mijnwerkers' be correct, which seems open to doubt, the argument of the defendant in the main action would by no means be conclusive. The heading 'Netherlands' in Annex B to Regulation No 3 mentions in subparagraph (a) sickness insurance in general, and in sub­ paragraph (i) sickness insurance for mineworkers. Thus if a special scheme of sickness insurance, as defined above, does not fall within subparagraph (i) it must fall within subparagraph (a), which applies without distinction to all 'workers' ('travailleurs'; 'Arbeitskrafte' and 'Arbeitnehmer'; 'lavoratori'; 'werknemers') within the meaning of Articles 48 to 51 of the Treaty, expressions which also include non-manual workers.

Article 22 (2) and (3) of Regulation No 3 govern the method of granting sickness benefits to 'the beneficiary of a pension' payable under the legislation of one or

VAASSEN v BEAMBTENFONDS MIJNBEDRIJF

more Member States, when this beneficiary is permanently resident in the territory of a Member State in which none of the institutions liable for the payment of the pension is situated. These provisions certainly cover the case where sickness insurance necessarily follows from the right to a pension, that is to say, when it constitutes, in a sense, a necessary condition of the pension scheme.

The said provisions presuppose logically that this affiliation to a sickness insurance scheme cannot be terminated because the person concerned transfers his permanent residence to a country other than that or those of the institutions liable for the payment of the benefits in question. Furthermore the above supposition is con­ firmed by Article 10 (1) of Regulation No 3, according to which 'Pensions ... payable under the legislation of one or more Member States shall not suffer reduction, modification, suspension, termination or confiscation by reason of the fact that the beneficiary is permanently resident in the territory of a Member State other than that in which the institution liable for payment is situated'.

On the other hand Article 22 does not expressly mention the case in which the affiliation of the beneficiary of the pension to a sickness insurance scheme is only provided for on an optional basis. It is necessary, therefore, to examine whether, in spite of the silence of this Article, it nevertheless also applies in such a case.

JUDGMENT OF 30. 6. 1966 — CASE 61/65

(b) The request for an interpretation also enquires whether Article 22, which refers only to 'benefits in kind', applies to the provision of medical treatment, medicines and nursing, given in the form of repayment of costs incurred.

Chapter 1 of Head III of Regulation No 3, entitled 'Sickness, Maternity', which includes the said Article 22, contrasts 'benefits in kind' with 'cash benefits' without however defining either term. It is nonetheless clear that the term 'benefits in kind' does not exclude the possibility that such benefits may comprise payments made by the debtor institution. For it is logical for such an institution to make such pay­ ments in the cases expressly referred to in Article 19 (5) of Regulation No 3 as 'benefits in kind', namely the provision of 'prostheses' and 'major appliances'. A further point is that the provisions of the said Chapter I of Head III draw no distinction between making the said payments directly to the person concerned and paying them to third persons. Finally, Article 18 of the Regulation allows of the interpretation that 'cash benefits' are essentially those designed to compensate for a worker's loss of earnings through illness. Thus it is concerned with an entirely different situation from the one under consideration.

It follows from all the above factors that Article 22 applies equally when benefits, such as those referred to by the Scheidsgerecht, are granted in the form of reim­ bursement of expenses incurred.

III — Costs

The Costs incurred by the Commission of the EEC, which submitted observations to the Court, are not recoverable, and as these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the Scheids­ gerecht van het Beambtenfonds voor het Mijnbedrijf, the decision on costs is a matter for that tribunal.

hereby rules:

1. Rules governing sickness insurance for workers and their survivors, laid down and operated by an institution established under private law, since they are 'enforceable provisions' fall within 'legislation' within the meaning of Articles 1 (b) and 4 of Regulation No 3 when the said provisions supplement or are a substitute for laws and regulations establishing a general or special social security scheme;

2. Annex B, heading 'Netherlands', of Regulation No 3 of the Council of the EEC is applicable to both general and special social security schemes providing insurance against sickness for non-manual workers in the mining industry;

3. Under Regulation No 3 an institution managing a sickness insurance scheme may not refuse to give the benefit of affiliation to the scheme, even an optional scheme, to a worker's survivor entitled to a pension by virtue of the legislation of a Member State, if the reason for so refusing is that the person so entitled permanently resides in a Member State other than the one in which the said institution is situated;

4. Article 22 of Regulation No 3 also applies to benefits given in the form of reimbursement of expenses for medical treatment, medicines and nursing. and declares:

5. The decision on costs in the present proceedings is a matter for the Scheids­ gerecht van het Beambtenfonds voor het Mijnbedrijf.