C-19/67

JUDGMENT OF 5. 12. 1967 — CASE 19/67

1. The need for a uniform interpreta­ increase in the charges borne by tion of Community regulations pre­ wage-earners or their employers, vents the text of a provision from without any corresponding supple­ being considered in isolation, but in mentary protection by way of cases of doubt requires it to 'be social security. interpreted and applied in the light 4. Decisions taken by the Administrative of the versions existing in the other Commission in pursuance of Article three languages. 43 (a) of Regulation No 3 are not 2. A worker who is employed in the binding on national courts or tri­ bunals. territory of one Member State but who resides in the territory of 5. Article 13(a) of Regulation No 3, as another Member State and who is worded prior to the introduction of conveyed at his employer's expense Regulation No 24/64, applies to a between his place of residence and worker who is engaged solely for em­ his place of employment remains ployment in the territory of a Mem­ subject to the legislation of the ber State other than that in which the former State by virtue of Article 12 establishment to which he is norm­ of Regulation No 3, even as regards ally attached is situated, in so far as that part of the journey which takes the probable duration of his employ­ place in the territory of the State ment in the territory of the former in which he resides and in which State does not exceed twelve months. the undertaking is established. 6. The expression 'the probable dura­ 3. Article 12 of Regulation No 3 pro­ tion of their employment' used in hibits a Member State other than Article 13 (a), as worded prior to that in whose territory a worker is the introduction of Regulation No employed from applying its social 24/64, refers to the duration of the security legislation to such worker employment of each individual where to do so would lead to an worker.

SOCIALE VERZEKERINGSBANK v VAN DER VECHT

THE COURT

composed of: R. Lecourt, President, A. M. Donner, President of Chamber, (Rapporteur), A. Trabucchi, R. Monaco and J. Mertens de Wilmars, Judges,

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

gives the following

JUDGMENT

I — Facts Netherlands territory in which he sus­ tained serious injuries, with the result The facts may be summarized as fol­ that he was unable to work and had to lows: receive medical treatment. The company On 24 November 1963 Mr van der in question had taken no measures re­ Vecht entered the service of N. V. garding statutory accident insurance in Motorrevisie en Scheepsreparatiebedrijf respect of its workers, either in the Ceto at Schiedam, with the intention of Netherlands or in Belgium. only remaining in the service of this The respondent in the main action company until the end of the week. At claimed damages under the Netherlands that time the company carried out acti­ Law of 1921 on accidents, tout the ap­ vities in the field of servicing and re­ pellant in the main action refused to pairing in the Netherlands, although the pay on the ground that by virtue of defendant was engaged to do work at Article 12 of Regulation No 3 of the Genk in Belgium of a different kind Council of the EEC Belgian insurance from that which the company carried legislation was applicable at the tune of out in the Netherlands. The company the accident. had concluded an agreement with an The respondent brought an action undertaking established in Germany (the against this decision rejecting his claim Dürr firm of Stuttgart) whereby it before the Raad van Beroep, Rotterdam, would either perform certain activities alleging, first, that at the time of the as sub-contractor or would supply the accident he was working in the Nether­ necessary labour. The defendant was lands since, in a case such as the pres­ provided by the company with accom­ ent, transport to his place of work modation in Geleen in the Netherlands formed part of the work to be carried and was taken daily 'by a bus belonging out under his contract of employment. to this undertaking, at the latter's ex­ Alternatively, he submitted that his case pense, to and from his work in Belgium. fell within the ambit of the exception He was also paid for the time spent in laid down in Article 13 (a) of Regula­ travelling. tion No 3 (as worded at that time). On 27 November 1963 the bus which The Raad van Beroep annulled the de­ conveyed the defendant to the site at cision of the present appellant to dis­ Genk was involved in an accident on miss the respondent's claim, taking the

view that the accident which he sus tory) insurance scheme for a worker tained on 27 November 1963 had occur employed outside the territory of red in connexion with his occupation this Member State and when as a within the meaning of Article 1 (1) of result on the one hand the worker the Law of 1921 on accidents, with the in question might be entitled in result that he was entitled to damages principle to claim damages in both on the basis of that law. Member States, even though on the The Sociale Verzekeringsbank appealed other hand contributions must be to the Centrale Raad van Beroep against paid on his 'behalf in both Member

In addition, the following questions have taking which employs him is estab arisen in respect of Article 13 (a): lished and who. in order to carry Can the phrase to which they are norm out this work, is conveyed daily by ally attached' used in this provision and at the expense of his employer apply in the case of a worker who has to and from the territory of the been engaged solely for work in the former State, employed in the terri territory of a Member State other than tory of this Member State within that in which the undertaking is estab the meaning of Article 12 of Regu

Must it lished? be on the basis of the anticipated dura (2) Does not Article 12 of Regulation tion of the employment of each individ No 3 prevent a worker who, by ual worker, or on the probable dura virtue of this article, is subject to tion of the work to be carried out? the statutory accident insurance The request for a preliminary ruling scheme of the Member State in was received at the Court Registry on whose territory he is employed from 22 May 1967. benefiting simultaneously from the The written observations provided tor comparable statutory accident insur

SOCIALEVERZEKERINGSBANKvVANDERVECHT

opinionatthehearingon8November thesubject-matterofoneoftheaddi­ 1967. tionalquestionsintheorderofrefer­ enceandisatthecentreofthedis­ cussion. II — Observations submit­ Inprinciple,byvirtueofArticle12 ted under Article 20 workersaresubjecttothelegislationof of the Protocol on the theStateinwhoseterritorytheyare Statute of the Court employed,eveniftheundertakingwhich of Justice employsthemisestablishedintheter­ ritoryofanotherMemberState. TheobservationsoftheCommission Asanexceptiontothisrule,Article13 maybesummarizedasfollows: (a)allowsthelegislationofthecountry (1)Article13(a)ofRegulationNo3, inwhichtheundertakingisestablished aswordedatthattime,providesthat: totakeeffect,subject,asisstatedin 'Wage-earnersandassimilatedworkers thephraseinquestion,totheexistence whosepermanentresidenceisinthe ofaspecificeconomiclinkbetweenthe territoryofoneMemberStateandwho workersandtheundertakingwhichhas areemployedintheterritoryofanother temporarilypostedthemtoanother Statebyanundertakinghavinginthe country.

territoryoftheformerStateanestab­ TheNetherlandsversionofthisphrase lishmenttowhichtheyarenormally ('waarbijzijgewoonlijkwerkzaamzijn') attached("waarbijzijgewoonlijkwerk­ suggeststheexistenceofalinkbetween zaamzijn")shallbesubjecttothelegis­ thepresentemploymentandearlierem­ lationoftheformerStateasthough ploymentinanestablishmentsituated theywereemployedinitsterritory,in intheterritoryofanotherMember sofarastheprobabledurationoftheir Stateandthusappearstopreventthe employmentintheterritoryofthelat­ applicationofArticle13(a)inthisin­ terStatedoesnotexceedtwelve stance.

preted to apply to workers who are en worker may be considered as being gaged solely in order to carry out work employed, within the meaning of this in the territory of a Member State other article, in the territory of the country than that in which the establishment in which he permanently resides when to which they are attached is situated. an accident occurs in this territory dur This interpretation is in accordance with ing transport at the employer's expense that given by the Administrative Com to his place of employment. mission in its Decision No 12 of 18 The Commission takes the view mat September 1959. this question is identical with the ques

able. taking is established could not be justi Moreover, reference cannot be made to fied because in such a case the worker a principle of national law in determin no longer comes under the authority ing the legislation to 'be applied. of this undertaking in carrying out his If the territory in which the accident work. happened were to be decisive as re (c) As regards the question posed by gards the legislation applicable, such the Centrale Raad regarding the mean legislation would vary according to the ing of the word 'employment' in the traffic hazards in that country. phrase 'the probable duration of their The result in this instance would be to employment', the Commission considers render Article 12 meaningless, since a that in the 'light of the present text, worker would be subject to two legis which is laid down by Regulation No lative systems rather man to one. 24/64 and which refers to the 'antici

It is therefore unnecessary to abuses to which the latter had given consider whether the worker is already rise. employed during the journey. (2) As regards the interpretation of (3) As regards the Centrale Raad van Article 12, the second part of the first Beroep's question whether a court in a question raises the problem whether a Member State is bound by a decision

taken by the Administrative Commission ployed from applying their social secur —a question concerning the interpre ity legislation to such persons'. How tation of Article 43 of Regulation No 3 ever, the Court considered that the posi — the Commission of the European tion might be different where a Mem Communities states: ber State other than that in whose (a) that in interpreting Community pro territory the worker is employed 're visions, national courts are not ob quires him to contribute to the financ liged to follow the interpretation of ing of an institution which would not the Administrative Commission, as accord him supplementary protection by is shown by the wording of the way of social security in respect of the second part of Article 43 (a); same risk and of the same period'. (b) that, although the courts concerned In this instance the burden or contribu regard them as mere expressions of tions is transferred and passes from the opinion, these decisions still carry workers to the employers who direcdy great weight; that the members of or indirecdy support the exclusive bur the Administrative Commission are den of compensation.

articles, such a solution results in his tion No 3. being discriminated against in a man On this point the Commission makes ner prohibited by these articles. the following observations: (b) The Commission considers that (a; To what extent is a simultaneous Community law is not opposed to a application of the relevant Belgian and temporary application of the relevant Netherlands legislation possible as re Netherlands legislation, which awards gards benefits} benefits to the person concerned until As regards the problem of the simul settlement of the action, subject to a taneous application of several legisla possible appeal against the employer. tive systems, the Court in its judgment This solution is justified by Article 51 in Case 92/63 (Moebs, nee Nonnen

JUDGMENT OF 5. 12. 1967 — CASE 19/67

out protection in the matter of social application of different legislation en­ security'. ables that worker to receive these bene­ This is the result of the dispute over fits from another social security in­ the conflict of laws 'because, since the stitution. Netherlands institutions were doubtful The Commission envisages two methods over the interpretation of Article 13 (a), of finally allotting the charges between they have refused to award the benefits the institutions, once the rights of the to which the worker was entitled as workers are protected: long as the question of the application of — if the solution which emerges from the Netherlands legislation is not settled. the conflict of laws leads to the ap­ This absence of protection is even more plication of the Netherlands legisla­ serious in that it arises from the very tion, the Netherlands institution must existence of Community rules on the pay the benefits in question; conflict of laws. — if, on the contrary, Belgian legisla­ In the absence of express provisions in tion must be applied, apart from the the regulations and by virtue of the usual reimbursement of benefits in obligation often referred to by the Court kind, the Netherlands institution to interpret the regulations in accord­ must be entitled to bring an action ance with Article 51, the Commission against the employer for the bene­ states that it must be acknowledged that fits paid in cash or, if necessary, the Netherlands institutions are bound against the Belgian guarantee fund, to pay the relevant benefits to the even if it entails reimbursing the worker concerned until such time as the employer for any contributions paid.

This interpretation of Article 12 is confirmed by the exceptions provided for in Article 13 which lays down precise rules even in respect of cases in which a worker is unquestionably employed in the territory of several Member States so as to avoid any simultaneous application of several legislative systems.

In its wording existing prior to the introduction of Regulation No 24/64, which the court referring the matter regards as of exclusive importance to the case before it, Article 13 (a) lays down an exception to the above rule for workers who are permanently resident in the territory of one Member State and who are employed in the territory of another Member State by an under­ taking having an establishment to which they are normally attached in the territory of the first State, and subjects them to the legislation of that State in so far as the probable duration of their employment in the territory of the second State does not exceed twelve months. Among the criteria laid down in the former version of Article 13 (a) the phrase in the Dutch version 'een bedrijf ... waarbij zij gewoonlijk werkzaam zijn' (an establishment ... by which they are normally exployed) has been made the subject of the pen­ ultimate question in the request for a preliminary ruling. The court referring the matter raises the question whether the criterion thus formulated in the Dutch version may be applied to a worker who has been engaged exclusively to work in the territory of a Member State other than that in which the undertaking which has employed him is established. If this phrase is con­ sidered only as it appears in the Dutch version, it might suggest that a worker who is engaged solely in order to work in the territory of a Member State in which he does not permanently reside and in which the undertaking which employs his is not established is not covered by Article 13 (a), with the result that the general rule laid down in Article 12 is applicable to him.

The second question concerns the interpretation of Article 12 for the pur­ poses of ascertaining whether it constitutes an obstacle to the simultaneous application of the legislation of the State in which the worker resides and that of the State in which he is employed.

The purpose of Article 12 is to avoid any simultaneous application of national legislative systems which might result in a purposeless increase in the social security contributions of both the worker and the employer. Subject to the exceptions provided for by the regulation, Article 12 prohibits a Member State other than in whose territory a worker is employed from applying its social security legislation to such worker, where to do so would lead to an increase in the charges borne by workers or their employers without any corresponding supplementary protection by way of social security.

SOCIALE VERZEKERINGSBANK v VAN DER VECHT

The third question concerns the interpretation of Article 43 of Regulation No 3 and the authority to be given to the decisions of the Administrative Com­ mission referred to therein.

Costs

The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable and as these pro­ ceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Centrale Raad van Beroep, the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;

JUDGMENTOF5.12.1967—CASE19/67

Uponhearingtheoralobservationsofthepartiestothemainactionandthe CommissionoftheEEC; UponhearingtheopinionoftheAdvocate-General; havingregardtotheTreatyestablishingtheEEC,especiallyArticles48to 51and177; HavingregardtotheProtocolontheStatuteoftheCourtofJusticeofthe EEC,especiallyArticle20; HavingregardtoRegulationNo3oftheCounciloftheEECconcerning socialsecurityformigrantworkers,especiallyArticles12,13and43,and RegulationNo24/64oftheCouncil; HavingregardtotheRulesofProcedureoftheCourtofJusticeofthe EuropeanCommunities;

SOCIALE VERZEKERINGSBANK v VAN DER VECHT

that in which the establishment to which he is normally attached is situated, in so far as the probable duration of his employment in the territory of the former State does not exceed twelve months;

5. The expression 'the probable duration of their employment' used in Article 13 (a), as worded prior to the introduction of Regulation No 24/64, refers to the duration of the employment of each individual worker;

6. The decision as to costs is a matter for the Centrale Raad van

Beroep.

Lecourt Dormer

1 — Translated from the French.