C-23/71
ECLI:EU:C:1971:101
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JUDGMENT OF THE COURT 27 OCTOBER 1971 1
Michel Janssen v Alliance Nationale des Mutualités Chrétiennes
(Reference for a preliminary ruling by the Arbeidsrechtbank (Labour Court) Tongeren)
'Self-employed persons'
Case 23/71
Summary
/. Social security for migrant workers — Assimilated worker — Meaning (Regulation No 3 of the Council, Article 4; Regulation No 4 of the Council, Article 1)
2. Social security for migrant workers — Self-employed persons — Right to benefit — Insurance periods completed in a Member State under a social security scheme for wage-earners — Taking these into consideration in applying legislation to another Member State — Conditions
1. The concept of 'assimilated' worker 2. Where the legislation of a Member used in Regulations Nos 3 and 4 State concerning the benefits avail of the Council includes every worker able to self-employed persons allows who is entitled under national legis the insurance periods completed by lation to benefit under a social secur the person concerned under the social security scheme for wage-earners to ity scheme which insures wage-earn be taken into account in establishing ers as a whole against one or more the right to benefit, the insurance risks, provided that such entitlement periods completed as a wage-earner ensures that he receives protection under the social security scheme of against the risk concerned compar another Member State must be taken able to that provided under the gen into account in applying that legis eral scheme. lation.
In Case 23/71
Reference to the Court under Article 177 of the EEC Treaty by the Arbeids rechtbank (Labour Court) Tongeren for a preliminary ruling in the action pending before that court between
1 — Language of the Case: Dutch.
JUDGMENT OF 27. 10. 1971 — CASE 23/71
Michel Janssen , a self-employed person, resident at Rekem,
and
Alliance Nationale des Mutualités Chrétiennes , Brussels
on the interpretation to be placed on the concept of 'assimilated' workers referred to in certain provisions of Regulations Nos 3 and 4 of the Council on social security for migrant workers,
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and Procedure tioned institution rejected his claim on the ground that he had not completed The facts and procedure may be sum the waiting period laid down under marized as follows: Article 25 of the Royal Decree of 30 1. Mr Michel Janssen worked in France July 1964 on sickness insurance of self- as an agricultural wage-earner from 16 employed persons, which was six October 1967 to 31 December 1969. months. Mr Janssen claimed that, by During that period he was a regular virtue of Regulations Nos 3 and 4 of the contributor in that country to the EEC, the rejection was invalid. Mutualité Sociale Agricole de la Somme. By judgment of 30 April 1971 the After 1 January 1970 Mr Janssen ceased Arbeidsrechtbank Tongeren, to which to work in France and became a 'helper' he applied for redress, decided to stay on his father's farm. With effect from proceedings and, under Article 177 of that date he joined the Landsbond der the Treaty, requested the Court: Christelijke Mutualiteiten as a self-em 'to give a preliminary ruling on the ployed worker. During that same January interpretation of the words "and as his wife was admitted to the Bilzen similated" appearing in EEC Regula Hospital for the birth of a child. When tions Nos 3 and 4 and more particu Mr Janssen applied to the aforesaid in larly on the question whether helpers surance institutions for re-imbursement regarded under Belgian social security of the expenses involved, the last men- legislation as self-employed; persons
JANSSEN v MUTUALITÉS CHRÉTIENNES
come within, the ambit of these regu (b). Community rules lations in as much as they are assimi Both the letter and the spirit of Com lated to workers bound to an employer munity rules require that a period of under a contract of service.' paid employment completed in France 2. The judgment making the reference shall be assimilated to a period of paid was received at the Court Registry on employment completed in Belgium. 10 May 1971. — As regards the letter of these rules In accordance with Article 20 of the attention is especially drawn to Protocol on the Statute of the Court of Articles 9 (1), 16, 17 and 18 of Justice annexed to the EEC Treaty, writ Regulation No 3 and to Articles ten observations were submitted by Mr 7 (2), 13, 14, 15 and 16 of Regula Michel Janssen, represented by his tion No 4 of the Council. Moreover, Counsel, Andre Janssen, and by the by virtue of Article 5 (a) of Regula Commission of the European Commun tion No 3, that regulation replaces ities, represented by its Legal Adviser, the provisions of the general Franco- Robert C. Fischer acting as Agent. Belgian agreement of 17 January After hearing the report of the Judge- 1948, Articles 5 (3) and 6 (2) of Rapporteur, and the views of the Ad which are especially relevant. As a vocate-General, the Court decided to result of such replacement the per open the oral procedure without any son concerned should be entitled to preparatory enquiry. at least the same benefits as under The Commission submitted its oral the agreement. observations at the hearing on 21 — As regards the spirit of the Com September 1971. The Advocate-General delivered his munity rules, it is clear from the fundamental principles in Article 51 opinion at the hearing on 5 October 1971. of the Treaty, which Regulation No 3 was adopted to implement, that the object of the arrangements kid down II — Observations submit in that regulation was specifically to ted under Article 20 prevent periods of work completed of the Protocol on the in a Member State from being re Statute of the Court garded as 'lost' or 'not reckonable' as of Justice far as the worker is concerned if he changes his place of residence or of The observations submitted under work. It is precisely to avoid this Article 20 of the Protocol on the Statute unfavourable result that Article 51
of the Court may be summarized as of the Treaty and Regulation No 3 follows: provide for 'aggregation' of the com pleted periods of work. A — Observations submitted by Mr Furthermore, Regulations Nos 3 and 4 Janssen of the Council apply to the circum Mr Janssen's observations are as fol stances of the case, first because an lows: 'agricultural helper' falls within the con cept of 'assimilated worker' referred to (a) Belgian national legislation in Regulation No 3 and, secondly, be It is clear from this legislation, especi cause the wording of Article 4 of the ally Article 26 (4) of the Royal Decree regulation covers, inter alios, 'assimila of 30 July 1964, that a period of paid ted workers' who have been subject to employment completed in Belgium the legislation of one or more Member counts, so to speak, towards the waiting States, together with the members of period for a self-employed person. their families and their survivors. In
JUDGMENT OF 27. 10. 1971 — CASE 23/71
the present case the insured person was, amended on several occasions, the last from 16 October 1967 to 31 December amendment being made by the Royal 1969, subject to French 'legislation'. Decree of 29 June 1970 (Belgisch Staatsblad of 11 July 1970). B — Observations submitted by the Although, prima facte, these provisions Commission of the European Com seem to indicate that the present case munities involves a situation covered by the case- After reviewing the different aspects and law of the Court, namely, an extension the scope of the principle which appears of a general scheme of insurance against to the Commission to have been ap one or more contingencies to a category plied by the Court on the subject of of persons other .than wage-earners, a assimilation (in Cases 75/63 and 19/68), closer study of this legislation reveals
that: the Commission of the European Com munities states that, according to these — the extension of the general scheme decisions, the question whether, in a of social security against sickness and particular case, a person is assimilated invalidity to self-employed persons, to a wage-earner ultimately depends on such as that provided under the first national law. paragraph of the aforementioned Royal Decree of 30 July 1964 (as Although, under Article 177 of the EEC amended by Royal Decree of 29 Treaty, the Court is not empowered 'to June 1970), is designed solely to interpret the rules of national law', it make available certain benefits pro cannot, however, in endeavouring to lay vided under the general scheme (and, down guide-lines to help the national in terms of health care, these are court to reach a decision, avoid looking confined to benefits associated with at the national provisions which are 'serious illnesses').
As regards sick relevant to the question before it. ness and invalidity insurance, there From the Belgian legislation which is fore, self-employed persons do not relevant to the issue in dispute, it is clear that: in Belgium enjoy the same protec tion as wage-earners. It is, accord — the concepts of self-employed person ingly, difficult to accept that, in this and of helper in connexion with field, they are assimilated to wage- social security were clearly defined earners. This accords, moreover, with by Royal Decree No 38 of 27 July the formula adopted by the Council 1967 (Belgisch Staatsblad of 29 July of the European Communities in the 1967) laying down social security Regulation of 14 June 1971 (OJ 1971, regulations for the benefit of self- L 149; OJ (English Special Edition) employed persons and of helpers; 1971 (II), p. 416) on the application — self-employed persons and helpers as of social security schemes to em so defined are, by way of an exten ployed persons and their families sion of the general scheme, subject to moving within the Community (in compulsory insurance against sickness the case of Belgium, see especially and invalidity; on this point refer Annex V to that instrument); ence is made to Article 22 of the — under the above-quoted Royal De Law of 9 August 1963 (Belgisch cree of 27 July 1967, the introduc Staatsblad of 1 and 2 November tion of social security regulations 1963), as amended by Article 27 of shall be effected: the Royal Decree of 27 July 1967, — by integration of the conditions and to the first paragraph of Article applicable in the three sectors: •1 of the Royal Decree of 30 July family allowances, pensions and 1964 (Belgisch Staatsblad of 13 survivors' pensions, sickness and August 1964) as subsequently invalidity (Chapter I);
JANSSEN v MUTUALITÉS CHRÉTIENNES
— by integration of the methods of — secondly, it was designed for the pur affiliation and contribution: affiliation pose of setting up special regulations to a single organization, single con for self-employed persons covering tribution, etc. (Chapter II); the three risks against which they are — by standardization of the structures, already insured and contriving ex especially by the creation of a nat pressly to differentiate between the ional social security office for self- position of self-employed persons and employed persons (Chapter V). that of wage-earners in respect of On the subject of benefits and the finan social security, and to set up a separ cial contribution made by the State, the ate and independent system for Royal Decree refers to the laws pro them. viding for insurance schemes for self- On the basis of these comments, the employed persons in the three sectors Commission takes the view that the concerned (cf. Article 18 (3) of the reply to the question asked should be Royal Decree which refers to the Law in the following terms: of 9 August 1963 setting up and pro viding for a system of compulsory in 'There is no justification for treating surance against sickness and invalidity). as "assimilated to wage-earners" per Thus, it is clear from these provisions sons, such as helpers, to whom there as a whole that, although the general has been extended under the provis sickness and invalidity insurance ions of national law, entitlement to scheme has been extended to self-em benefit under a general scheme of ployed persons, the extension does not, social security insuring wage-earners however, amount to assimilation. As against one or more risks, in cases similation is only partial because: where such extension only partly — first, self-employed persons are pro covers the risk involved and the effect tected to a lesser degree than are of which is to set up a separate and wage-earners under the general independent scheme for such per scheme; sons.'
Grounds of judgment 1 By decision of 30 April 1971, received at the Court Registry on 10 May 1971, the Arbeidsrechtbank Tongeren referred to the Court under Article 177 of the EEC Treaty a question of interpretation concerning the word 'assimilated' used in Regulations Nos 3 and 4 of the EEC Council.
2 The Court is first asked to rule whether the concept of 'assimilated' workers within the meaning of the said Council regulations can apply to 'helpers' whom Belgian legislation on the subject of sickness and invalidity insurance treats as self-employed persons.
3 The scope of Regulation No 3 is set out, as regards the persons to whom it applies, by Article 4, which provides that 'the provisions of this Regulation shall apply to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States ...'.
4 Reference is made to that provision in Article 1 of Regulation No 4, which was adopted to implement Regulation No 3.
JUDGMENT OF 27. 10. 1971 — CASE 23/71
5 This provision is based on a wide conception of the persons to whom it applies inasmuch as it subjects to the provisions of the regulation not only wage-earners within the strict sense of the word but in addition all those assimilated to such workers.
6 In this respect, Article 4 follows a general tendency of the social law of Member States to extend the benefits of social security in favour of new categories of persons by reason of identical risks.
7 However, the exact measure of this assimilation can only be determined in terms of the national legislations to which Regulation No 3 refers.
8 Such an assimilation takes place on every occasion on which, as the result of the effect of national legislation, the provisions of a general scheme of social security are extended to a category of persons other than the wage-earners referred to by the said regulation, whatever may be the forms or methods employed by the national legislature.
9 The extension of these provisions must entitle those benefiting from it to a degree of protection against one or more risks comparable to that granted in respect of the risk concerned under the general scheme.
10 The question submitted may, however, also be intended to determine whether a person who is treated as 'helper' under Belgian legislation govern ing sickness and invalidity insurance can avail himself of completed insurance periods as a wage-earner under the legislation of another Member State, in order to claim advantages, such as being excused a qualifying period, which, under the provisions on the subject of sickness and invalidity insurance for self-employed persons, are added to the periods previously completed under Belgian legislation as a wage-earner.
11 Articles 48 to 51 of the Treaty, which establish freedom of movement for workers gave a meaning to the concept of worker.
12 As expressly stated in Article 4 (1) of the Regulation No 3, the expression 'wage-earners or assimilated workers', used in the regulation and designed to clarify the concept of 'workers', covers not only those who, in this capacity, are subject to the legislation of one or more Member States but also those who 'have been' so subject.
13 The object of Articles 48 to 51 would not be achieved but would be missed if the insurance period completed by a worker in accordance with the legis lation of one Member State, were, as far as he was concerned, lost if, in taking advantage of the freedom of movement secured for him, he changes
JANSSEN v MUTUALITÉS CHRÉTIENNES
his place of work and thus becomes subject to the social security system of another Member State.
14 For the purposes of admission to compulsory insurance, this conclusion is further confirmed by Article 9 (1) of Regulation No 3, which provides that the insurance periods and assimilated periods completed under the legislation of one or more Member States other than that in which the insured is per manently resident shall, in so far as is necessary, be reckoned as insurance periods completed under the legislation of the latter State.
15 It therefore follows that when the legislation of a Member State governing the benefits to be granted to self-employed persons allows insurance periods completed by the insured person under the social security scheme for wage- earners to be taken into account in establishing a right to benefit, the insur ance periods completed as a wage-earner under the social security scheme of another Member State must be taken into account in applying that legislation.
Costs
16 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 national court, 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; Upon hearing the oral observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 48 to 51; Having regard to Regulation No 3 of the Council 'on social security for migrant workers'; Having regard to Regulation No. 4 of the Council 'on implementing pro cedures and supplementary provisions in respect of Regulation No 3 on social security for migrant workers'; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20 thereof; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
OPINION OF MR ROEMER — CASE 23/71
THE COURT
in answer to the question submitted to it by the Arbeidsrechtbank Tongeren in accordance with the decision taken by that court on 30 April 1971, hereby rules:
1. The concept of an 'assimilated' worker used in Regulations Nos 3 and 4 of the Council includes a 'helper', within the meaning of Belgian legislation, considered as a self-employed person in so far as, under that legislation, the benefits of the social security scheme pro vided for wage-earners as a whole against one or more risks is extended to him, provided that, in respect of the risk concerned, the extension ensures that he receives protection comparable to that provided under the general scheme;
2. When the legislation of a Member State governing the benefis avail able to self-employed persons allows the insurance periods completed by the insured person under the social security scheme for wage- earners to be taken into account in establishing the right to benefit, the insurance periods completed as a wage-earner under the social security scheme of another Member State must be taken into account in applying that legislation.
Lecourt Mertens de Wilmars Kutscher
Donner Trabucchi Monaco Pescatore
Delivered in open court in Luxembourg on 27 October 1971.
A. Van Houtte R. Lecourt Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 5 OCTOBER 1971 1
Mr President, The relevant facts are as follows. Mr Members of the Court, Janssen, the plaintiff in the main action, who is of Belgian nationality and is at Arising out of proceedings brought be present resident in Belgium, worked in fore it, the Belgian Labour Court of France from 16 October 1967 to 31 Tongeren is asking you to interpret December 1969 as an agricultural wage- Regulation No 3 of the Council on earner and in this capacity was insured social security for migrant workers (OJ there with the Mutualités Sociale Agri No 30 of 16.12.1958, p. 561). cole de la Somme against the contin-
1 — Translated from the German.