C-14/72

JUDGMENT OF THE COURT 16 NOVEMBER 1972 1

Helmut Heinze

v Landesversicherungsanstalt Rheinprovinz (Reference for a preliminary ruling by the Bundessozialgericht)

'Tuberculosis benefits'

Case 14/72

Summary

1 — Language of the Case: German.

JUDGMENT OF 16. 11. 1972 — CASE 14/72

of the Bundessozialgericht (Social Security Court) Kassel for a preliminary ruling in the action pending before that court between

Helmut Heinze, Köln-Ehrenfeld,

and

LANDESVERSICHERUNGSANSTALT Rheinprovinz, Düsseldorf,

Issues of fact and of law

I — Facts and procedure pleted in Germany were insufficient to satisfy the general condition laid down in The facts and procedure may be sum­ Article 1246 (3) of the Reichsversicherungs­ marized as follows: ordnung (RVO) (State Insurance Regula­ Mr Heinze, a German citizen, was employed tion) for pensions payable on grounds of in the Federal Republic of Germany for unfitness for employment, that is, the 36 months from 1950 to 1953 and in the completion of an insurance period of 60 Grand Duchy of Luxembourg for 84 months. months from 1953 to 1960. During all this The Sozialgericht referred to Article lb of period he was subject to the compulsory Regulation No 3 of the Council of the pension insurance scheme. EEC concerning social security for migrant In 1966, after his wife and son had con­ workers and Article 1244a of the RVO tracted contagious tuberculosis needing and compelled the defendant to give a treatment, the Landesversicherungsanstalt positive decision on the plaintiff's claim. (Regional Insurance Institution) of Düssel­ The latter provision provides in particular dorf rejected the claim in respect of medical that an insured person is one 'for whom treatment submitted by Mr Heinze on the contributions have been paid, as a result ground that the insurance periods com- of employment or an activity which is

HEINZE v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

The assistance provided by be taken into account, based its decision on this Law covers medical treatment, aid to Article 24 et seq. of Regulation No 3 rather integration into working life, aid accorded than on Article 16. by way of maintenance, special benefits and In appealing to the Bundessozialgericht on aid of a proplylactic nature. a point of law, the defendant maintains Apart from the social assistance institu that the insurance periods completed tions, other organizations, such as pension abroad may only be taken into account as insurance organizations, were given tasks to regards benefits paid on grounds of perform in the fight against tuberculosis. invalidity, old-age or death, and that The participation in this task of several medical treatment for contagious tuber administrative institutions made it neces culosis is not included among those sary to draft regulations governing their benefits. competence. The decisive factor in this By order of 1 March 1972 received at the respect is the existence of a close link Court Registry on 24 April 1972 the between a particular authority and the Bundessozialgericht stayed the proceedings claimant. The competence of the pension and requested the Court under Article 177 insurance institutions in this matter arises of the EEC Treaty to give a preliminary under Article 1244a of the RVO.

However, in the opinion but makes the power of the pension in of the German court, the rules contained in surance organization to pay such benefits Article 1244a of the RVO do not form part dependent upon the existence of a certain of the law on social security for migrant period of affiliation to the pension insur workers but are, on the contrary, an ance scheme?' integral part of the legislative provisions

intended to fight against the national the Italian Government and the Commis scourge of tuberculosis. The task which the sion presented oral argument. pension insurance institutions have been The Advocate-General delivered his opinion given in this respect does not fall within the at the hearing on 19 October 1972. context of social security. In fact, the fight against diseases and epidemics differs essentially according to the nature, scope, II — Observations submitted under conditions, content and purpose of the Article 20 of the Statute of tasks originally entrusted to the pension the Court of Justice insurance scheme. The object of the legal The observations submitted under Article protection afforded by the pension in 20 of the Protocol on the Statute of the surance scheme is earning capacity.

The maintains that Articles 26 and 27 of EEC benefits referred to in Articles 48 to 66 of Regulation No 3 appear to be based on a the BSHG, which have replaced the general principle which may be of im abovementioned law of 1959, are based on portance in the final settlement of the the principle of the alternative nature of present action. the social assistance (cf. Article 2 of the In accordance with Article 20) of the BSHG), that is, that in theory the as Protocol on the Statute of the Court of sistance is only provided when the person Justice of the European Communities, concerned cannot receive it from other written observations were submitted by sources, in particular, from institutions the Italian Government, represented by the paying other social benefits, and his finan Italian Ambassador, A. Maresca, acting cial circumstances must also be taken into as Agent, assisted by G. Zagari, Deputy account. Although, under Article 59 of

This confirms oral procedure without holding any pre the alternative nature of the measures of paratory inquiry. assistance in cases of tuberculosis provided By order of 13 July 1972 the Court joined for by this law. Quite independently of the present case to Cases 15/72 and 16/72 the benefits provided for by the BSHG, for the purposes of the oral procedure. the provisions of Article 1244a of the RVO At the hearing on 4 October 1972 the adopted in 1959 award not only to insured Landesversicherungsanstalt Rheinprovinz, persons and persons receiving pensions,

but also to the spouses and children of exercise of employment as well as tempo such persons, rights to medical treatment, rary allowances in favour of the insured to aid to integration into working life person, his spouse and children concerns and to social assistance in the case of benefits of the type referred to in Article 2 contagious tuberculosis, provided that the (1) (a), (b) and (h) of Regulation No 3. requisite insurance periods have been Therefore, the application of this regulation

for. It is on the basis of this last feature certain insurance periods and, secondly, that the Bundessozialgericht believes that awarded in the form of an actual right, the provisions of Articles 26 and 27 of there are serious reasons for regarding such Regulation No 3 may be inapplicable. a benefit as in the nature of a social The Commission observes that, if the security payment. If, moreover, there is no insurance periods completed in Germany question of a benefit being alternative in are considered alone, none of the condi nature, the existence of a social security tions provided for in Article 1244a (2) of benefit and, therefore, of the application of the RVO is satisfied in the main action. Regulation No 3, may only be denied in The minimum number of insurance quite special circumstances.

It allowances. The Bundessozialgericht ac is true that, in the context of Article 1244a, knowledges that, in any event, contagious it is not easy to differentiate between tuberculosis requiring treatment constitutes measures intended to maintain or improve an 'illness' which also frequently gives rise earning capacity and measures concerning to a risk of 'invalidity'. A provision of invalidity. However, the Commission con national law in favour of tuberculosis siders that it is not possible to exclude in a sufferers which provides, first, for rights to general way from the scope of Regulation hospital or outpatient treatment and, No 3 the measures provided for by the secondly, for measures to facilitate the abovementioned provision solely because of

these difficulties or the wider protection Regulation No 3 which concern sickness, which they afford in relation to the general in particular since the Bundessozialgericht rules. The fundamental differences which itself considers that Articles 26 and 27, to exist between the provisions of the BSHG which it expressly refers, are only applicable and those of the RVO as regards the condi by analogy and wonders whether a general tions to which benefits are subject and the principle is contained in these articles. terms on which they are awarded demon (d) Aggregation on the basis of Articles 26 strate the independent nature of the benefits and 27 of Regulation No 3 provided for in Article 1244a of the RVO, with the result that it is mistaken to see The Commission observes that, even if the a mere division of powers between the provision in Article 1244a of the RVO social assistance organizations and the were to be regarded as one of the Type A social security organizations in the fact that provisions referred to in Article 24 et seq. Article 1244a of the RVO refers to a of Regulation No 3, in view of the fact concept of social security law, that is, to that it subjects the benefits solely to the the concept of the insured person. completion of certain minimum insurance Finally, the Commission observes that the periods but does not increase them in German authorities have for a long time proportion to the length of time during applied EEC Regulations Nos 3 and 4 to which contributions are paid, the Federal the benefits which are paid to tuberculosis Republic has expressed no reservations on sufferers by the pension insurance organi this point in its statements concerning

Member States constitute pensions which may be appor The Commission observes that the benefits tioned pro rata temporis, nor the fact that provided for in Article 1244a of the RVO the amount of these benefits is not calcu are complex and composite in nature. They lated in terms of the length of the periods do not constitute solely invalidity benefits, completed, are obstacles to the application as the Bundessozialgericht appears to of Articles 26 and 27 of Regulation No 3. believe, but also sickness benefits, at least In fact, Regulation No 3 nowhere provides in so far as they award rights to hospital that the principle of the aggregation of the and out-patient treatment. The benefits insurance periods laid down in Article 27 awarded for the purpose of maintaining, can only be applied in conjunction with a improving or re-establishing earning capac pro rata apportionment. Furthermore, as ity are difficult to distinguish from sickness regards Type A benefits, Article 38 of

HEINZE v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

On the other hand, Article 94(3) application of Chapter 2 of Head III of states expressly that, subject to the pro Regulation No 3 it is sufficient for the visions of paragraph 1, a right shall be re-establishment or improvement of the acquired though relating to a contingency earning capacity of a tuberculosis sufferer which materialized prior to the date of to be only one of the objectives sought. entry into force of the same regulation. If Where the measures referred to in Article an application is made to this case of the 1244a of the RVO are applied to a person principles developed by the Court of for whom the problem of maintaining or Justice in Case 44/65, (Hessische Knapp improving earning capacity does not arise schaft v Maison Singer et Fils [1965] (for example, because the age-limit has ECR 965) and Case 68/69, (Bundesknapp been reached, or because he is a total schaft v Elisabeth Brock [1970] ECR 171) invalid) Article 26 of Regulation No 3 is concerning the extension of Regulation no longer applicable, but it is then No 3 to cover events which took place necessary to consider the extent to which earlier, it does not appear impossible for the provisions concerning the benefits the periods completed by the applicant to payable in case of sickness (Article 16 et be aggregated as from 1 October 1972 for seq. of Regulation No 3) make it necessary the application of the provisions con to take into account the insurance periods cerning sickness. completed in other Member States.

JUDGMENT OF 16. 11.1972 — CASE 14/72

scheme and it is for this reason that the which forms the basis of Regulations Nos receipt of benefits is subject to the payment 3 and 4. of contributions or the completion of a Finally, the Italian Government agrees specified period of insurance. It is essential with the finding of the Sozialgericht and to avoid the unequal treatment of Com­ considers that the general provision set out munity workers when applying the principle in Article 16 of Regulation No 3 is the of the aggregation of insurance periods, most relevant to this case.

Grounds of judgment

1 By order of 1 March 1972, received .at the Court Registry on 24 April 1972, the Bundessozialgericht referred to the Court under Article 177 of the EEC Treaty a question concerning the interpretation of certain provisions of EEC Regulation No 3 of the Council concerning social security for migrant workers with reference to the application of Article 1244a of the Reichsversicherungsordnung (RVO) (German State Insurance Regulation). This article concerns the benefits which the pension insurance organizations must pay to insured persons who suffer from tuberculosis. The question asks whether Articles 26 and 27 of Regulation No 3 are applicable by analogy to benefits such as those referred to in Article 1244a of the RVO.

HEINZE v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

stipulated by that provision. In order to settle the case pending before it, the German court must decide whether the affiliation periods previously completed by the worker in another Member State must be taken into account in applying Article 1244a of the RVO. To this end, therefore, the Bundessozialgericht must classify the benefits provided for by Article 1244a of the RVO in the light of the criteria which define the scope of Regulation No 3 of the Council concerning social security for migrant workers. Without being empowered to classify the abovementioned provision of the RVO in the context of the present proceedings, the Court may, however, provide the national court with factors of interpretation depending on Community law which might be useful to it in evaluating the effects of that provision.

5 Considered from this point of view, a provision which establishes a direct link between the affiliation of an individual to a pension insurance scheme and the acquisition of a right to benefits which are payable by pension insurance organiz­ ations to insured persons and their dependants, as a result of the fact that they have contracted tuberculosis and chiefly in order to bring about their recovery, must be regarded as forming part of the legislation governing social security referred to in Article 2(1) of Regulation No 3. This classification cannot be modified by the fact that, since tuberculosis is contagious and constitutes a danger to public health, it has formed the subject of a special law providing for prophylactic or remedial measures which the social assistance organizations are required to apply in favour of any person residing in the Member State concerned, to the, extent to which such benefits are not already provided by the insurance organizations.

6 Therefore, Article 2(1) of Regulation No 3 covers benefits of a prophylactic or remedial nature.

7 In order to reply to the question referred it is still necessary to consider whether the aggregation of the affiliation periods completed in the various Member States,

JUDGMENT OF 16. 11. 1972 — CASE 14/72

which is necessary in order to acquire a right to the benefits in question, should be carried out on the basis of Articles 26 and 27 of Regulation No 3 to which the German court refers.

8 As is pointed out in the order referring the matter, in the absence of any contrary provision, benefits which are not related to the 'earning capacity' of the insured person cannot be regarded as invalidity benefits within the meaning of Article 2(l)(b) of Regulation No 3. On the other hand, where such benefits are also awarded to the members of the family of the insured person and where their essential aim is to cure the invalid and protect those who are in contact with him, they must be regarded as sickness benefits within the meaning of Article 2(1) (a) of Regulation No 3.

THE COURT

in answer to the question referred to it by the Bundessozialgericht, by a decision of that court dated 1 March 1972, hereby rules:

1. A provision which establishes a direct link between affiliation to a pension insurance scheme and the acquisition of a right to benefits which are payable by pension insurance organizations to insured persons and their dependants as a result of the fact they have contracted tuberculosis and chiefly in order to bring about their recovery, must be regarded as forming part of the legislation governing social security referred to in Article 2 (1) of Regulation No 3;

2. The social security benefits which, although not related to the 'earning capacity' of the insured person, are also awarded to the members of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits within the meaning of Articles 2 (1) (a) of Regulation No 3. For the purposes of acquiring a right to such benefits, therefore, the aggregation of the affiliation periods completed in the various Member States is governed by Article 16 et seq. of Regulation No 3.

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