C-4/66

JUDGMENT OF THE COURT 13 JULY 19661

Mrs J. E. Labots (née Hagenbeek) v Raad van Arbeid, Arnhem (Reference for a preliminary ruling by the Centrale Raad van Beroep, Utrecht)

Case 4/66

Summary

1. Free movement ofpersons — Migrant workers — Social security measures to be adopted by the Council of the EEC — Aim (EEC Treaty, Article 51)

2. Free movement of persons — Migrant workers — Social insurance — Regulation No 3 of the Council of the EEC — Application of Netherlands legislation (Regulation No 3 of the Council of the EEC, Annex G (III) (B))

on the interpretation of certain provisions

1 — Language of the Case: Dutch.

JUDGMENT OF 13. 7. 1966 — CASE 4/66

— of 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.);

— of Regulation No 130/63 of the Council of the EEC amending certain annexes to the said Regulation No 3 and to Regulation No 4 of the Council of the EEC (Official Journal of 28 December 1963, p. 2996 et seq.);

THE COURT

I — Facts Netherlands law concerning general insur­ ance for widows and orphans ('Algemene It emerges from the decision referring the Weduwen- en Wezenwet', hereinafter re­ case to the Court and from the file trans­ ferred to as 'the AWW') which entered into mitted by the Centrale Raad van Beroep general force on 1 October 1959. that the following facts form the basis of the (c) By decision of 22 March 1965, the de­ dispute before that court: fendant dismissed the abovementioned ap­ (a) The plaintiff is the widow of a worker plication, on the twofold ground that: who died in Belgium on 23 February 1963 — the plaintiff's husband was not at the and who had been insured: moment of his death insured under the — From 22 November 1926, for a contribu­ AWW; tion period of 599 weeks, under the — moreover he was not insured, at that Netherlands law concerning invalidity date, under Belgian legislation. ('Invaliditeitswet') which also covers (d) The plaintiff instituted proceedings death risks; throughout this period, ex­ against this decision before the Raad van cept for short interruptions, he worked Beroep, Utrecht, the court of first instance in the Netherlands; in social security matters. — From 1 July 1955 until the date of his Immediately prior to the judgment given by death, with one interruption of seven the Raad van Beroep, it emerged (and is not years and two months, under a Belgian at present disputed) that at least one of the invalidity and life assurance scheme and grounds mentioned at (c) above, on which throughout this entire period, including the defendant based its decision, was incor­ the interruption, he worked and resided rect: in fact, the plaintiff's husband was at in Belgium. the moment of his death insured under (b) Following the death of her husband the Belgian law. plaintiff in the main action made an applica­ In these circumstances, the defendant itself, tion to the defendant, a social security both before the Raad van Beroep and the institution, for a widow's pension under the Centrale Raad van Beroep, maintained that

its decision no longer had any valid basis and its own legislation, determine whether the that the plaintiff's request should be grant­ person concerned satisfies the conditions ed, pursuant to Article 27 of Regulation for entitlement to the benefits prescribed in No 3 in conjunction with Annex G (III) (b) that legislation taking into account the thereto, as amended by Article 7 of Regula­ aggregation of periods, as set out in the tion No 130/63 of the EEC. At the hearing preceding Article'. before the Centrale Raad van Beroep, the The first paragraph and subparagraph (b) of defendant's agent made the following de­ Article 7 (1) (B) of Regulation No 130/63 claration: 'I consider that the Raad van EEC under which Beroep's attitude is inequitable. If a Belgian 'for the purpose of applying Articles 27 and settles in the Netherlands with his wife and 28 [of Regulation No 3], the Netherlands dies after living there for a short time, his institutions shall take account of the follow­ wife is entitled to a pension under the ing provisions: AWW'. As a result the defendant from that (a) ... time on made a payment to the applicant on (b) for the purpose of ascertaining the account of the amount which it considered amount of benefit payable under the itself bound to pay under the AWW. Netherlands legislation concerning gen­ (e) Nevertheless, the Raad van Beroep, by eral insurance for widows and orphans judgment of 26 July 1965, dismissed the [that is, under the AWW], these con­ plaintiff's application, in particular on the tribution periods or periods of payment following grounds: of premiums completed before 1 Octo­ — Since at the time of her husband s death, ber 1959 [that is to say, before the entry the plaintiff was more than forty years into force of the AWW] under the old, she would have been entitled to a Netherlands legislation on invalidity, widow's pension under the AWW if, at old-age and survivors' insurance (of that date, her husband could have been wage-earners) [that is to say, the legisla­ considered as insured under that law. tion under which the plaintiff's hus­ Such was not the case, however, and the band was insured] shall be assimilated said husband moreover had at no time to insurance periods completed in pur­ been covered by the AWW; these are suance of the legislation first afore­ determining factors in the case. mentioned' — Moreover, the Raad van Beroep is not moreover does help the plaintiff's interests aware of a rule providing that, solely by reason of the fact that a worker is since the aggregation which it provides for does not imply that it is from the outset insured under Belgian legislation, his established that in in principle there is, or widow is entitled on his death to a pen­ sion under the AWW. could be, a right to benefit under the AWW.

II — Question put by the Centrale — Secondly, these provisions also apply to Raad van Beroep legislation which, like the AWW, does not make the amount of the benefit At its hearing on 16 February 1966, the dependent on the length of the insurance Centrale Raad van Beroep decided to sub period, but on the materialization of the mit the following question to the Court: risk, in this case, death. 'Is the provision contained in Annex G (III) The difficulty is that, to be able to apply (b) of Regulation No 3 concerning social such legislation, it is unnecessary to have security for migrant workers, in the form recourse to other legislation so that the con laid down in Article 7 of Regulation No ditions of Article 27 are not complied with. 130/63 of the EEC, only applicable when Consequently, 'Article 28 may only be ap ascertaining the amount of benefit payable plied if another situation is discovered in under the Netherlands legislation on gen which account must necessarily be taken of eral insurance for widows and orphans, or affiliation under other legislation, and that is it also applicable in deciding whether, will only happen if the risk, in the present under Article 27 of Regulation No 3, there case death, occurs while the insured is no exists a right to benefit payable under this longer affiliated under the Netherlands leg Netherlands legislation?' islation but under the legislation of another country', in this case under the Belgian leg III — Procedure islation.

Moreover visions of Articles 27 and 28 of Regulation this would be illogical as it was precisely No 3 on the one hand and into Annex G for migrant workers that the said assimila (III) of the said regulation, as amended by tion was provided; in fact, workers who Article 7 of Regulation No 130/63 of the have never left the Netherlands did not EEC, on the other. require it. (a) The judgment which the Court gave in It would moreover be contrary to the spirit Case No 100/63 (Kalsbeek nee Van der of the said judgment that a worker should

LABOTS v RAAD VAN ARBEID ARNHEM

several times in order to increase the ben­ provisions of Annex G (III) (b) of Regula­ efits for which it made provision. It would tion No 3 as amended by Article 7 (1) (B) (b) have undergone other amendments for this of Regulation No 130/63 of the EEC are purpose had it not been replaced by the also applicable since the question is whether system of the AWW. on the basis of Article 27 of Regulation No 3 Finally, the Commission considers that the there is a right to benefit under the AWW.

Grounds of judgment

The question put by the Centrale Raad van Beroep

The point of the preliminary question raised by the Centrale Raad van Beroep is whether the provisions of Annex G (III) (B) (b) of Regulation No 3 of the Council of the EEC, in its amended form set forth in Article 7 of Regulation No 130/63/ EEC of the Council, are only applicable for calculating the amount of benefit due under the AWW or are also applicable in deciding whether the person concerned fulfils the requisite conditions for entitlement to the benefits provided for by the said legislation.

The provision referred to reads as follows:

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

The aim of this provision is to allow the migrant worker to acquire the right to benefit for all periods of work completed by him in various Member States, without discrimination as against other workers by reason of the exercise of his right to freedom of movement. The interpretation of Articles 27 and 28 of Regula­ tion No 3 and of the Annexes relating thereto is inseparable from this basic aim. These provisions would not guarantee the free movement of workers if, merely by exercising this freedom, they were to lose their entitlement to social security acquired in the countries in which they have worked.

Since the migrant worker's position is governed by the provisions of Articles 27 and 28, Annex G (III) (B) (b) should be interpreted in the light of the foregoing considerations. Although this provision appears to relate only to establishing the amount of benefit, it nevertheless remains the fact that it was adopted not only with a view to the application of Article 28, which refers to the calculation of the amount of benefits, but also, and expressly, with a view to the application of

LABOTS v RAAD VAN ARBEID ARNHEM

Article 27, which only relates to the acquisition of rights. This defect may be explained in the first place by the fact that Regulation No 3 distinguishes much less clearly than the wording of the preliminary question supposes between the acquisition of the right to benefit and the ascertainment of the amount of benefit. Moreover account must be taken of the supplementary nature of the provisions of Annex G; on the basis of the supposedly clear application of Articles 27 and 28 to the AWW, those provisions are limited to extending the concept of insurance periods under the AWW to the periods completed under the previous insurance system. Implementing provisions, such as Annex G, cannot derogate from the principal provisions which they are intended to supplement. Consequently, these provisions cannot form a basis for denying the acquisition in accordance with Article 27 of a right to benefit under the AWW.

Furthermore, there would be discrimination against the survivors of a worker who was successively subject to Netherlands legislation prior to the AWW and to the legislation of another Member State, but who was not regarded as insured under the AWW, on the ground that he had died at a time when he was residing and working in that other State.

security for migrant workers, especially Articles 27 and 28 and Annex G (III) (B) (b); Having regard to Regulation No 130/63/EEC of the Council of the EEC, amending in particular certain annexes to the said Regulation No 3, and especially Article 7 (1) (B) (b); 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 Centrale Raad van Beroep by a decision of that court of 16 February 1966, hereby rules:

1. The provisions of Annex G (III) (B) (b) to Regulation No 3 are also applicable in deciding whether there is, in accordance with Article 27 of Regulation No 3, a right to benefit under the General Widows' and Orphans' Insurance Law of the Netherlands;

2. The decision on costs in the present proceedings is a matter for the Centrale Raad van Beroep.

Hammes Delvaux Strauß

1 — Translated from the French.