C-15/72

2. Social security for migrant workers — Application to national legislative systems — Extension to prophylactic and remedial measures (Regulation No 3 of the Council, Article 2 (1) )

3. Social security for migrant workers — Sickness benefits — Concept — Acquisition of the right by aggregation of the insurance periods completed (Regulation No 3 of the Council, Article 2, Article 16)

1. The Court has power to provide the capacity' of the insured person, are also national court with factors of inter­ awarded to the members of his family pretation depending on Community law and are principally intended to aid the which might be useful to it in evaluating recovery of the invalid and to protect the effects of a provision of national law. those who are in contact with him must be regarded as sickness benefits within 2. Article 2(1) of Regulation No 3 also meaning of Article 2(1) (a) of Regula­ refers to prophylactic or remedial tion No 3. For the purposes of acquiring measures. a right to such benefits the aggregation of the affiliation periods completed in 3. The social security benefits which, the verious Member States is governed although not related to the 'earning by Article 16 et seq. of Regulation No 3.

In Case 15/72

Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of

1 — Language of the Case: German.

THE COURT

composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), J. Mertens de Wilmars and H. Kutscher, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

compulsory sickness and pension insurance (aggregation of insurance periods) scheme. Active tuberculosis was diagnosed applicable by analogy to a legal pro at the beginning of August 1965 and Mr vision which, according to the law in Buscema received hospital treatment from force in the Federal Republic of 12 August 1965 to 18 October 1966. The Germany, does not concern social costs of this treatment were borne by the security benefits but an obligation applicant. which, for the purposes of the preven The Sozialgericht Hannover ordered the tion of disease, is imposed under cer defendant to refund these costs on the tain conditions on pension insurance ground that the assistance to tuberculosis organizations, where this provision sufferers provided for in Article 1244a of provides for the payment of the the Reichsversicherungsordnung (RVO) relevant benefits—which are not pen (State Insurance Regulation) constitutes a sions and are not divided pro rata sickness insurance benefit and that there temporis—without regard to the fore the periods during which contributions materialization or threat of the risk of were paid in Italy and the Federal Republic "invalidity" and without taking into of Germany must be aggregated in accor account, in making this calculation, dance with Article 16 of Regulation No 3 the length of the period of affiliation, of the Council of the EEC. but makes the power of the pension The abovementioned provision of the RVO insurance organization to pay such provides, in particular, that an insured benefits dependent upon the existence person is one 'for whom contributions have of a certain period of affiliation to the been paid, as a result of employment or an pension insurance scheme? activity which is subject to compulsory insurance, for at least 6 calendar months during the 24 calendar months preceding (b) I If Question (a) is answered in the the diagnosis of the condition requiring affirmative: treatment' or who satisfies the general qualifying period of 60 months provided Can the legal considerations which for in Article 1246(3). form the basis of the first sentence of The Landessozialgericht Niedersachsen Article 28(2) of Regulation No 4 of dismissed the defendant's appeal, although the Council of the European Economic it did so not on the basis of Articles 16 Community on implementing pro and 17 of Regulation No 3, but by cedures and supplementary provisions

could validly have pressed his claim against nover and requested the Court under the defendant if, during the two calendar Article 177 of the EEC Treaty to give a years preceding the diagnosis of the condi preliminary ruling on the following ques tion requiring treatment, he had paid tions: contributions for at least six calendar months within the context of employment or activity subject to a compulsory in '(a) Are Articles 26 and 27 of Regulation surance scheme, or if he had satisfied the No 3 of the Council of the European conditions concerning the qualifying period Economic Community concerning so

JUDGMENT OF 16. II. 1972 — CASE 15/72

instance. However, if, in the present case, of the RVO is, in the first place, a pro the preliminary questions set out in the phylactic measure and that, unlike the order should receive an affirmative reply, procedure followed under measures adopt it would be necessary to consider a second ed under Articles 1236 and 1237 of the question concerning the first sentence of RVO, in order to maintain or improve Article 28(1) of EEC Regulation No 4, working capacity, the cost of the hospital which the Bundessozialgericht considers to treatment of an insured person suffering be based upon a general legal considera from contagious tuberculosis is borne by tion, that is, whether the minimum the competent pension insurance organiza affiliation period imposed by the legislation tion, without regard to the prognosis.

Landesversicherungsanstalt Hannover, re- States. Even if, contrary to the views of the presented by Mr Remter, Landes- Landesversicherungsanstalt, the assistance verwaltungsdirektor, the Italian Govern-provided provided in cases of tuberculosis by the ment, represented by the Ambassador, pension pension insurance organizations of the A. Maresca, acting as Agent, assisted by Federal Federal Republic were regarded as an G. Zagari, Deputy State Advocate-invalidty invalidity benefit, the right to such General, and the Commission of the benefits benefits would only be acquired where it European Communities, represented by its was was possible to bring proof of a period of Legal Adviser, P. Karpenstein. aaffiliation f ilation to a German pension insurance Upon hearing the report of the Judge- organization or an assimilated period of Rapporteur and the views of the Advocate- at least 6 months. General the Court decided that it was Even if the treatment of a person suffering unnecessary to hold any preparatory from tuberculosis constitutes a sickness inquiry. insurance benefit, it would be impossible By an order dated 13 July 1972 the Court to accept that Regulations Nos 3 and 4 joined the present case to Cases 14/72 and authorize the aggregation of the contri 16/72 for the purposes of the oral procedure. butions paid to the German pension The Landesversicherungsanstalt Hannover, insurance scheme with the contribution the Italian Government, the Commission periods completed in other Member States and the Caisse de Maladie (Sickness by way of sickness insurance or, in Italy, Insurance Fund) of H. Heye Glasfabrik by way of the special scheme of insurance 'Schauenstein', Obernkirchen, the inter against tuberculosis.

NIEDERSACHSEN v LANDESVERSICHERUNGSANSTALT

These rights where a migrant worker satisfies the legal are not subject to any condition that they requirements imposed in Germany by must be alternative in nature and may be means of contributions paid to the pension enforced in legal proceedings. The right insurance scheme. to medical treatment and to a temporary allowance exists even where there is no reason to fear that the employment of the 2. Observations of the Commission person concerned will be endangered or where there is no chance of maintaining, considerably improving or re-establishing A — The first question such employment as a result of the measures provided for. It is on the basis of this last (a) The Commission observes that before feature that the Bundessozialgericht believes the entry into force of the law of 1959 that the provisions of Articles 26 and 27 providing for social assistance in cases of of Regulation No 3 may be inapplicable. tuberculosis, the social insurance organi The Commission observes that, if the zations acted—as they still do today in insurance periods completed in Germany order to avoid cases of invalidity (Article are considered alone, none of the conditions 1236 et seq. of the RVO, as amended)—on provided for in Article 1244a (2) of the the basis of Article 1252 of the RVO to RVO is satisfied in the main action.

Article 2 of the BSHG), that is, that in theory the assistance (b) The question whether the benefits at is only provided when the person concerned issue are in the nature of social security cannot receive it from other sources, in payments partidular, from institutions paying other social benefits, and his financial circum stances must also be taken into account. Article 2(1) of Regulation No 3 applies to Although, under Article 59 of this law, the all the legislation which governs the social assistance institution is always bound benefits referred to in subparagraphs (a) to to take action in urgent cases in so far as (h). These benefits cover, in particular, no other institution is bound to pay the sickness and invalidity benefits, including benefit, the organization which actually bsnefits awarded for the purpose of bears this obligation must reimburse the maintianing or improving earning capacity, instituion with the expenses which it was and family allowances.

JUDGMENT OF 16. 11. 1972 — CASE 15/72

The concerns benefits of the type referred to in fundamental differences which exist be Article 2(1)(a), (b) and (h) of Regulation tween the provisions of the BSHG and No 3. Therefore, the application of this those of the RVO as regards the conditions regulation could only be excluded if, in to which benefits are subject and the terms spite of the fact that it is to be found in a on which they are awarded demonstrate law governing social security, Article 1244a the independent nature of the benefits of the RVO concerned social assistance and provided for in Article 1244a of the RVO, medical aid within the meaning of Article with the result that it is mistaken to see 2(3) of Regulation No 3. Although it is true a mere division of powers between the that the differences between the standard social assistance organizations and the type of social assistance and the legislation social security organizations in the fact that on social security are becoming less and Article 1244a of the RVO refers to a less clear in all the Member States, in a case concept of social security law, that is, to in which a benefit is, first, subject to the the concept of the insured person. completion of certain insurance periods Finally, the Commission observes that the and, secondly, awarded in the form of an German authorities have for a long time actual right, there are serious reasons for applied EEC Regulations Nos 3 and 4 to regarding such a benefit as in the nature the benefits which are paid to tuberculosis of a social security payment. If, moreover, sufferers by the pesnison insurance organi there is no question of a benefit being zations on the basis of Article 1244a of the alternative in nature, the existence of a RVO. social security benefit and, therefore, of the application of Regulation No 3, may only be denied in quite special circumstances. (c) The question whether Regulation No 3 This is confirmed by the fact that Article contains a rule enabling the aggregation, 2(3) of Regulation No 3 is a provision in the main action, of the insurance which lays down exceptions and must, periods completed in the different therefore, be strictly interpreted.

The benefits in the Reichsversicherungsordnung. The awarded for the purpose of maintaining, prevention and cure of illness and disease improving or re-establishing earning capa held a predominant place in the earlier city are difficult to distinguish from sickness regulations as the typical concerns of social benefits. The Commission observes that, security. It is true that, in the context of to a large extent, both France and Italy Article 1244a, it is not easy to differentiate apply the criteria governing sickness

insurance to the fight against tuberculosis. Furthermore, as regards Type A benefits, In the light of the difficulties inherent in Article 38 of Regulation No 1408/71 drawing a distinction between the two provides that the aggregation of insurance categories of benefits (those provided for periods in order to acquire a right to in respect of invalidity and those in respect invalidity benefits takes place without any of sickness) the Commission considers that pro rata apportionment being made. The it is expedient to consider the problem of aggregation of the insurance periods the aggregation of the insurance periods constitutes one of the basic features of not only from the point of view of Articles Regulation No 3 which must, therefore, 26 and 27 which deal with invalidity, but in cases of doubt, be interpreted in line also on the basis of those provisions of with an application of this principle. Regulation No 3 which concern sickness, It is also clear from the terms of Article inêparticular since the Bundessozialgericht 2(1)(b) of Regulation No 3, which ex itself considers that Articles 26 and 27, to pressly includes in the scope of this which it expressly refers, are only applic regulation benefits which are awarded for able by analogy and wonders whether a the purpose of maintaining or improving general principle is contained in these earning capacity, and Article 26(1) of the articles. same regulation, which stipulates that the provisions of Chapter 3 shall only apply by analogy, that Article 27 must be applied to these cases, particularly since other (d) Aggregation on the basis of Articles 26 provisions of Regulation No 3 (for example, and 27 of Regulation No 3 Article 16 et seq., Article 32, Article 33)

in the other Member States. This fact is a tuberculosis sufferer to be only one of the itself sufficient to justify the application objectives sought. of Article 26 of Regulation No 3. Where the measures referred to in Article The Commission considers that neither the 1244a of the RVO are applied to a person fact that the benefits in question do not for whom the problem of maintaining or constitute pensions which may be ap improving earning capacity does not arise portioned pro rata temporis, nor the fact (for example, because the age-limit has been that the amount of these benefits is not reached, or because he is a total invalid) calculated in terms of the length of the Article 26 of Regulation No 3 is no longer periods completed, are obstacles to the applicable but it is then necessary to application of Articles 26 and 27 of consider the extent to which the provisions Regulation No 3. In fact, Regulation No 3 concerning the benefits payable in case of nowhere provides that the principle of the sickness (Article 16 et seq. of Regulation aggregation of the insurance periods laid No 3) make itênecessary to take account of down in Article 27 can only be applied in the insurance periods completed in other conjunction with a pro rata apportionment.

JUDGMENT OF 16. 11. 1972 — CASE 15/72

(e) Aggregation on the basis of Article 16 benefits payable as part of the fight against et seq. of Regulation No 3 tuberculosis are, in a general way, in the nature of social security benefits in that, The Commission considers that in the main first, they are intended to maintain, action the provision contained in the second improve and re-establish the earning subparagraph of Article 17(1) of Regula­ capacity of a worker who is suffering from tion No 3 does not exclude the aggregation tuberculosis, and this aim generally gives of the insurance periods completed in Italy concrete form to another—the protection and Germany and, therefore, the applica­ of public health and the fight against tion of Article 1244a of the RVO. tuberculosis which is regarded as a social scourge. Secondly, they presuppose the B — The second question existence of an insurance scheme and it is

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 questions concerning the interpretation of certain provisions of EEC Regulations Nos 3 and 4 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 first 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.

NIEDERSACHSEN v LANDESVERSICHERUNGSANSTALT

3 The file shows that the plaintiff in the main action, a German social assistance organization, was refused by a German pension insurance organization the re­ imbursement of hospital expenses incurred in the treatment of an Italian worker suffering from tuberculosis, on the ground that Article 1244a of the RVO was not applicable, since the insurance periods completed in Germany by the worker in question were insufficient to satisfy the condition of sixty months' affiliation laid down therein. 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.

4 Under the terms of Article 1 (b), Regulation No 3 applies to all the legislation of the Member States relating to 'the social security schemes and branches of social security' referred to in Article 2(1) and (2), and under Article 2(3) the Regulation shall not apply to 'social assistance and medical aid'. In order to reply to the question referred, it is first necessary to consider whether such advantages as those provided by Article 1244a of the RVO are included in the social security benefits listed in Article 2(1) and (2) of Regulation No 3. Regulation No 3 must be interpreted with regard to the fundamental aim of Article 51 of the Treaty, which is to establish the most favourable conditions for achieving the freedom of move-

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.

9 Therefore, the aggregation of the affiliation periods completed in the various Member States, for the purposes of acquiring a right to such benefits, is governed by Article 16 et seq. of Regulation No 3.

10 In the event of an affirmative answer being given to the principal question, it is further asked whether the legal considerations which form the basis of the first sentence of Article 28(2) of Regulation No 4 on implementing procedures and supplementary provisions in respect of Regulation No 3 concerning social security

NIEDERSACHSEN v LANDESVERSICHERUNGSANSTALT

for migrant workers (minimum period of affiliation) apply to benefits such as those in question.

11 In the light of the reply to the first question, the second question has become irrelevant.

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 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;

JUDGMENT OF 16. 11. 1972 — CASE 15/72

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 Article 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.

Lecourt Monaco Pescatore

Donner Trabucchi Mertens de Wilmars Kutscher

Delivered in open court in Luxembourg on 16 November 1972.